3. Scope of Application of the Regulations

The new regulations will establish an explicit obligation on anyone proposing to import, export or convey in transit a waste or recyclable material to determine whether the waste or recyclable material is "hazardous" in accordance with the regulations. This obligation is consistent with the basic environmental management and due diligence requirements for generators and managers of wastes and recyclable to know the characteristics of the substances they are working with.

The mechanism for determining whether a waste or recyclable material is "hazardous" will be based on the model in the Interprovincial Regulations4 which, in turn, is based on the work of the CCME Hazardous Waste Task Group. This approach will improve both the clarity of the grounds for classification and the enforceability of the new regulation. The approach is also consistent with the Basel Convention and the OECD Decision. Considering the volume of trade between Canada and the United States, applicable US regulations were also reviewed as part of this work5.

The basic approach will be to rely on a set of lists to establish a presumption of inclusion. The new regulations will deem some listed hazardous wastes and hazardous recyclable materials to be included under the regulations unless the proponent formally demonstrates to the regulators that a particular listed material is not hazardous. This set of lists will be based on the lists in the Interprovincial Regulations, mainly the 100 waste types formerly included in the

Transportation of Dangerous Goods Regulations (TDGR). The regulations will also provide that, for all other listed hazardous wastes and hazardous recyclable materials, a proponent may test out of the regulations by demonstrating that the waste or material does not, in fact, have the characteristic for which it is listed. This second set of lists will reflect the Interprovincial Regulations (similar to Schedule I of the TDGR6) plus an additional list based on Annexes I and VIII of the Basel Convention.

Final decisions remain to be made on two listing issues. The first is related to the inclusion of specific industrial chemicals that are listed in US regulations as P and U listed wastes (lists of acutely hazardous or toxic commercial chemicals). This issue has been discussed previously during consultations on the Interprovincial Regulations. The purpose of this addition would be to further harmonize with US lists, as has been done under Ontario regulations. While many of these chemicals are already listed in the TDGR or meet hazard criteria under current

Canadian regulations, some do not. A decision is required on how these new chemicals will be incorporated into CEPA 1999 regulations.

Secondly, as part of work to develop new landfill standards, as discussed in Appendix B of this paper, Environment Canada is reviewing US lists of substances subject to pre-treatment prior to landfill to determine: a) whether the listed substances would already be defined as hazardous waste under Canadian regulations, and b) whether the pre-treatment standard level should be used as a regulated limit for those substances when destined for landfill.

In addition to the listing approach, the new regulations will continue to require the application of prescribed hazardous characteristic tests to all non-listed wastes and recyclable materials, largely the same as those already in place under the August 15, 2002, amendment to EIHWR.7

Some stakeholders have argued that the regulations should not require application of the leachate (TCLP) test to any recyclable materials or to certain lower risk recyclable materials. Environment Canada does not propose to provide such a blanket exemption. The Department views the test as a measure of the availability and mobility of hazardous constituents. Recyclable materials may come into contact with the environment in various circumstances, including through stockpiling or following a transportation accident. Recyclable materials that could contaminate the environment as a result of such contact will be covered by the regulations.

Environment Canada is considering a listing approach for some specific recyclable materials including treated wood and electronic scrap. Options for modified controls on certain recyclable materials are further discussed in section 6 of this paper.

Some stakeholders have also argued that the new regulations should include explicit waste/no waste criteria to determine if a substance or mixture is a waste/recyclable material or product. Rather than include a highly detailed and nuanced set of provisions in the new regulations, Environment Canada plans to issue a guidance manual. The Department has circulated a draft version of the manual to stakeholders as part of the consultations for which this paper has been prepared.

It should be noted that the proposed model does not include a "derived from" rule. Some stakeholders have urged that the new regulations should include such a rule so as to presume that a material that was once a hazardous waste will retain that classification even after treatment, unless delisted. This would have too large a scope and would require a delisting mechanism. Instead, ensuring that residues are properly managed is generally addressed through the ESM core performance criterion (see section 4), and may also be applied through detailed ESM obligations as a means to ensure proper treatment prior to landfilling (e.g., through technical guidelines on the landfilling of hazardous waste).

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