7. Environmentally Sound Management
Section 185(2) of CEPA 1999 provides that:
The objective of managing waste and material in manner that will protect the environment and human health against adverse effects is known as environmentally sound management, or ESM. Domestically, Environment Canada has been working with the provinces and territories through the CCME to improve existing technical guidelines for the management of hazardous waste and hazardous recyclable materials, with a view to strengthening ESM nationally for domestic and transboundary movements. Internationally, Canada is signatory to various agreements that call for the ESM of hazardous wastes and recyclable materials, including the Basel Convention, the OECD Decision and the /Canada/US Agreement.
Environment Canada outlined its proposal that the new regulations prescribe an ESM framework and provide a mechanism for ensuring that applicants meet relevant ESM requirements prior to issuance of import or export permits. Essentially, the approach outlined by Environment Canada during the consultations would have the new regulations require applicants to self-certify that each facility that will be involved with the waste or recyclable material:
- Has an appropriate environmental management system (EMS) in place;
- Complies with a common set of "core performance elements" related to ESM;10 and
- Has taken into consideration specific technical criteria and guidelines that are relevant to its circumstances.
Departmental officials described their proposal that Environmentally Sound Management within the new EIHWR consist of three main elements:
- Environmental Management System
The receiving facility must have an environmental management system (EMS) in place to be able to assess and monitor that the facility is operating in an environmentally sound manner. The regulations will not prescribe a particular EMS model. Instead, they will require that the EMS address each of the core performance elements. A guidance manual referenced in the regulations will describe desired features. This should enable facilities to use or build on an existing EMS and existing federal/provincial/aboriginal government/municipal standards, rather than implement a new system.
- Core Performance Elements
Environment Canada outlined its proposal to adopt the core performance elements from the ongoing OECD work on ESM for recyclable materials. These core performance elements, which will be applied to both recycling and disposal, comprise nine features:
- The persons operating the facility have an awareness of regulatory infrastructure and enforcement requirements;
- The facility conforms to all applicable regulatory requirements;
- The facility is authorized by the appropriate jurisdiction;
- An occupational health and safety program;
- A monitoring, recording and reporting program;
- A staff training program;
- An information exchange program to ensure that a facility is aware of possible upstream and downstream concerns as well as continued awareness of new developments in technology and management practices;
- A comprehensive emergency/contingency plan relevant to the facility and the waste or materials being managed on site; and
- A closure and after-care plan.
Environment Canada explained that it plans to develop a guidance document to describe specific enforceable benchmarks as well as to describe best practices taking into account existing provincial/territorial regulations. This approach would allow Environment Canada, following appropriate consultations, to modify the benchmarks and guidance as work in this area evolves domestically and internationally without having to go through the complete regulatory amendment process. There will be a further opportunity for stakeholders to review this guidance manual prior to the implementation of the amended regulations.
- Technical Criteria
Under the model outlined by Environment Canada, the new regulations would also include an Annex listing relevant technical guidelines addressing various wastes stream as well as various disposal and recycling methods that importers and exporters must consider. This Annex would be divided into two parts. The first will include domestic guidelines such as current CCME technical guidelines, Canada-Wide Standards and any applicable substance-specific guidelines developed under CEPA 1999. The second part would include international guidelines, such as OECD and Basel Guidelines. As new guidelines are created they would be added to the Annex through a minor regulatory amendment process.
Under Section 185(2), the Minister's authority to determine ESM is linked to the notification process for proposed exports and imports.
Environment Canada acknowledged that, given the large number of often similar notices received from various importers and exporters every year, it will be important to ensure that the ESM mechanism does not unduly slow down the notice review process.
Under the model presented during the consultations, the regulations would require applicants for a permit to import or export to submit a self-certified declaration that each receiving facility that will be involved with the waste or recyclable material will manage the waste or material in manner that will protect the environment and human health against adverse effects because it:
- Has an appropriate EMS in place;
- Complies with the above core performance elements; and
- Has considered any specific technical criteria and guidelines that are relevant to its circumstances.
The Minister would then consider the information, and the regulations would authorize the Minister to request additional information potentially including an audit of the validity of the declaration. Failure to provide such information could result in the Minister refusing to issue an export or import permit. In addition, filing a false declaration could be subject to enforcement action under CEPA 1999.
Environment Canada explained that this self-certification process could occur in advance of the shipment, and could apply to all relevant facilities, including interim storage and transfer facilities as well as the final destination for the hazardous waste or recyclable material. This would give Environment Canada time to consider the information and thereby expedite the review at the time of notification. However, a certification of the validity of the declaration to the particular activities and wastes would also be required at the time of notification to ensure that the general declaration fits the specific case.
Environment Canada officials also explained that they are considering requiring that the certificate of disposal/recycling (which is already required under the current regulations) certify that the waste/recyclable material was, in fact, managed in an environmentally sound manner.
Although there was general support for the principles of ESM, many workshop participants had significant concerns about the proposed implementation mechanisms. Industry generally felt th at the approach was overly burdensome, and ENGO representatives felt it was too process-based and would not have a significant impact on performance and standards. Participants made the following comments related to the proposed mechanism for implementing ESM within EIHWR:
- Industry stakeholders asked Environment Canada to demonstrate the "value added" or environmental benefit of imposing the proposed ESM regime on all shipments, given that the large majority of shipments that are already being managed in an environmentally sound way. They urged Environment Canada to develop a more focussed approach that would direct efforts where there are specific problems or environmental benefits to be gained.
- There were concerns and questions about how Environment Canada would enforce the ESM provisions as proposed.
- Stakeholders emphasized the need to integrate ESM with other federal and provincial processes. Many suggested that the goal of the EIHWR ESM regime should be to harmonize provincial regulations through implementation of the ESM framework across the country. This may mean that it is implemented differently in different provinces.
- ESM has the potential to become a broad-based management standard, but it does not apply to all facilities in Canada. To be effective, ESM should apply not only to receiving facilities, but to generators, brokers and transfer stations as well.
- ENGO participants felt that the ESM regime should include requirements for public consultation and outreach.
- Some stakeholders suggested that ESM requirements be implemented at the provincial/territorial level and integrated with the certificate of approval process.
- The Core Performance Elements are process elements, rather than performance elements. Some suggested that Environment Canada establish a set of performance standards.
- It was suggested that Environment Canada specify an EMS standard within the ESM framework (e.g. ISO 14001, EMAS).
- Industry expressed concerns over the "information exchange" Core Performance Element under the ESM framework: firms will not be willing to divulge proprietary information for the purposes of sharing best practices with other members of the industry sector.
- Keeping the guidelines outside of the regulations provides Environment Canada with the ability to adjust the guidance documents in response to changing market conditions and newly available technology. While this flexibility is welcomed by industry, the lack of certainty associated with potentially changing requirements creates some concern. Changes in requirements could have significant impacts on industrial operations. While it is recognized that some change is necessary, long-term planning becomes difficult in an uncertain regulatory environment.
- Concerns were expressed over the ability of Environment Canada to enforce the requirements outlined in the guidance documents, as requirements that aren't directly referenced in the regulations will become discretionary, or "soft" control mechanisms. Furthermore, Environment Canada does not currently have the internal capacity to manage greater enforcement requirements: effective enforcement will only be achieved with additional resources.
The following specific comments were made concerning the proposed self-certification mechanism:
- The appropriate checks and balances (i.e. monitoring and enforcement) should be in place for ESM self-certification to be effective.
- Much of the language in the core performance elements is discretionary. This would provide industry with flexibility, but would also create some confusion as to what is mandatory, and what is optional.
- The new regulations will require Canadian firms to ensure that facilities in the country of export will manage hazardous wastes in an environmentally sound manner. Significant concerns were expressed over liability involved in certifying the legal compliance of the facilities in another jurisdiction. Many stakeholders also suggested that this requirement should be the responsibility of government, not industry.
10 These core performance elements are based on OECD work. Having an EMS is one of the OECD core performance elements. This paper describes the EMS requirement separately to highlight the fact that an EMS is a tool to monitor compliance with the other core performance elements.
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