5. Definitional Issues/Scope of Application
Environment Canada explained that 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 with which they are working.
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 during the development of this approach5.
The regulations will require the sequential consideration of : a) lists, and b) hazardous characteristics criteria. 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.
At the time of the consultations, final decisions remained to be made on two listing issues. The first 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. Environment Canada explained that 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, 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. These requirements will be largely the same as those already in place under the August 15, 2002, amendment to EIHWR.7
Environment Canada acknowledged that in previous consultations, some stakeholders 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 explained that it is not proposing 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.
Environment Canada also explained that some stakeholders have 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 circulated a draft version of the manual to stakeholders in advance of this round of consultations.
Finally, the Department noted that the proposed model does not include a "derived from" rule. In previous consultations, 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. Environment Canada explained that this would have too large a scope and would require a delisting mechanism. Instead, ensuring that residues are properly managed will be addressed through the ESM core performance criterion, 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).
Participants provided the following comments concerning classification:
- Many industry stakeholders did not support the listing approach presented, preferring that the primary basis for determining if a waste is hazardous be based on its characteristics;
- A stakeholder in Alberta suggested that by trying to harmonize with too many jurisdictions Environment Canada has developed an overly complicated classification regime. The fundamental decision should be whether to continue with the TDGR approach or to pursue a listing approach like in the U.S.;
- Some recycling stakeholders encouraged Environment Canada to exclude low risk recyclables from the leachate test. Some ENGO representatives countered that if the leachate test is not applied, then another more appropriate test should be used;
- A number of stakeholders suggested an approach that links the definition to how the material is managed (e.g. Electronic scrap destined for a copper smelter that practices ESM) as a means of listing those materials exempted from the controls of the regulation;
- Environment Canada was encouraged to establish a service standard for administering the de-listing process to prevent a serious backlog and minimize disruption to industry;
- While stakeholders generally agree that P and U listed substances from RCRA should be covered, some cautioned Environment Canada not to take a simple listing approach as this is not how these substances are covered in the U.S.; and
- Concerns were expressed about the listing of used oil and Environment Canada was encouraged to be very specific in describing the types of waste oil that would be considered hazardous. Representatives from the petroleum industry felt that this listing would be a significant impediment to recycling.
The following specific comments were provided concerning the definition of electronic scrap:
- The lack of consistency within the electronic scrap waste stream makes it difficult to establish a defensible system of classification. Nonetheless, a classification system is necessary if Canada and other countries are to limit the volume of electronic scrap destined for final disposal, as well as the mismanagement of components for recycling;
- To manage this waste stream effectively, differential controls should be established for those components defined as wastes, versus those defined as products;
- Producer responsibility programs should be given a larger role in the management of electronic scrap, with a greater degree of responsibility falling on consumers to return products to the manufacturer; and
- Regulations should be established to ensure that waste materials from Canadian generators are only sent to countries that have the capacity to manage the waste in an environmentally sound manner.
The following specific comments were provided concerning the definition of treated wood:
- Since creosote is a complex mixture of substances, Environment Canada must clearly identify the hazardous constituents that should be controlled, as well as the methodology for identifying these substances. Stakeholders have suggested that the sampling and testing methods proposed through these amendments will not provide an accurate assessment of risk, and that Environment Canada should consider use of both the total concentration criteria and the leachate test to determine the hazardous nature of treated wood;
- The requirements established under these regulations should be consistent with the findings of the Strategic Options Process; and
- Manufacturers of treated wood products should be responsible for managing the materials throughout their lifecycle.
In addition to the above issues on the agenda participants raised questions concerning the listing of fluorescent lights, grey water from car washes, and scrap vehicles containing mercury switches and hazardous waste liquids.
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