6. Operational Issues and Notification and Tracking Requirements

• 6.1 Environment Canada's Proposals
  • 6.1.1 Conditions for Importers and Exporters
  • 6.1.2 Documentation Requirements
  • 6.1.3 Control Regime For Hazardous Waste To Or From All Countries And For Hazardous Recyclable Materials Being Exported To Or Imported From Non-OECD Countries (Full Controls)
  • 6.1.4 Returns and Rerouting
• 6.2 Comments

Environment Canada presented a series of proposals concerning notification and tracking requirements intended to streamline the notification process, and to clarify requirements for issues such as returns and re-routing and transfer stations.

The new regulations will clarify the following conditions:

• Person submitting a notice for export or import must be resident in Canada and have a place of business in Canada;
• Person submitting a notice for export must demonstrate the capacity to implement the obligations arising under these regulations upon non-completion of the shipment as planned;
• Person submitting a notice for imports must own or operate the facility that operates the site of final treatment or have a contract with such a facility; and
• Foreign exporters to Canada must be under the jurisdiction of the country of export.

It is intended that these requirements will ensure that exporters acting as agents for multiple generators either have a facility that can receive returned material or have a contractual arrangement with such a facility.

The tracking requirements will be modeled on the provisions proposed for the Interprovincial Regulations and on the August 2002 consequential amendments to the EIHWR. These provisions will have the following changes from the current EIHWR:

• Content of the Notice. Environment Canada plans to allow transport companies to maintain lists of authorized and insured carriers to which the notifier may refer, rather than requiring them to provide such a list with each Notice. The Notices will be based on the OECD form, as modified to include information relevant to other provisions of CEPA 1999 and international commitments. For example, in addition to basic information such as names, addresses, material in question, etc., the Notice will require information on:
  • Updated international waste identification codes (IWIC);
  • Whether the waste or recyclable material for which a permit is sought is subject to a waste export reduction plan order under s. 188 of CEPA 1999;
  • Whether the waste or recyclable material for which a permit is sought contains a POP subject to international controls under the Stockholm Convention, Annexes A, B or C;
  • Whether the waste/recyclable material is subject to another international agreement restricting its import or export;
  • Whether the waste/recyclable material is a Track 1 CEPA-toxic substance (slated for virtual elimination) or whose import or export is otherwise restricted under CEPA 1999; and
  • Confirmation of insurance (name of insurer and policy number; not a copy of the actual policy) for the Canadian exporter/importer and their carriers with a certification of compliance with the insurance requirement of the regulations.⁸
• Self certification. The new regulations will specify the various conditions an applicant must satisfy. Rather than require the submission of detailed information regarding each of the conditions, the regulations will require self-certification with respect to conformity with each of the conditions. Environment Canada also explained that, in one of the models under consideration for ESM, the regulations might also require applicants to self-certify conformity with environmentally sound management requirements. This approach was discussed at length (see Section 7). In addition, Environment Canada explained that the regulations will authorize the Minister to require an applicant to submit additional information. It is intended that these provisions should reduce the administrative burden of the regulation.
• Clarification of requirements regarding: number of wastes per notice; multiple shipments, notice amendments and documentation for multiple carriers for the same movement.The new regulations will include provisions that reflect current practice but that are not explicitly provided for under the current EIHWR.
• Replacement of the "manifest" with a "movement document" for exports and imports. These documents will provide for clear obligations that will enable Environment Canada to track a shipment to its final destination and to confirm completion of the final treatment or disposal. Environment Canada explained that it proposes to adopt the OECD movement documents to provide additional information relevant to CEPA 1999.⁹
• Reduced documentation requirements at the border: only the movement document and the permit.
• Clarification of the obligations for rail. The new regulations will reflect the recent discussions between the railway carriers and the Transboundary Movement Branch that will allow industry to import from the United States and remain in compliance with both the TDGR and EIHWR when the shipment involves movement by rail. Similar clarifications may also be made for marine shipments.
• Expanded new authority for electronic documentation.

Finally, Environment Canada noted that it is exploring the possibility of arrangements with the provinces to centralize and consolidate the flow of information through the Department.

Environment Canada proposed that the new regulations include two separate control regimes. The Full Controls will apply both to all shipments of hazardous waste and to hazardous recyclable materials being exported to or imported from non-OECD countries. A modified control regime will apply to shipments of hazardous recyclable materials among OECD countries.

Most of the proposed provisions for the Full Control regime reflect the current EIHWR with some changes to: a) facilitate compliance by improved clarity, and b) improve the operation of the regulations. Unlike the current EIHWR, it is proposed that the new regulations describe each step in the process in a sequential manner. This should help users and observers better understand all the elements involved. In order to provide this clear sequence of requirements, the regulations will repeat some of the key provisions in the Act, including the requirement to submit a Notice, the prohibition on movement without a permit.

In addition, the new regulations may include the following key changes:

• Clarification of the contract required between the permit holder and the recycling/disposal facilities. For exports from Canada, the permit holder either must: a) own or operate an authorized facility capable of receiving any shipment returned under the regulations, or b) have a contract with an authorized facility in Canada in which that facility undertakes to receive any such returned shipments. For imports into Canada, it will be necessary to provide for a contractual arrangement with the foreign exporter.
• A requirement that disposal occur within one year of import or export.
• Strengthened controls on operations D13 (blending) and D14 (recycling), R12 (exchange) and R13 (accumulation) to ensure effective tracking to the final destination.
• The introduction of a relatively simple renewal mechanism, for repetitive notification.

The new regulations will clarify the obligations arising upon failure to complete delivery or treatment as planned. It is the obligation of the importer or exporter to ensure, prior to transboundary movement, that the material can, in fact, be managed at the receiving facility. It is recognized, however, that unexpected circumstances such as work stoppages, accidents and unanticipated contamination can occur. In such cases, the importer or exporter must take steps to address the situation, and either ensure the return of the shipment or reroute it to another authorized facility.

While returns directly to the exporter can occur with only minor administrative requirements, rerouting will require an "authorization" for any subsequent movement. It is intended that this "authorization" represent a streamlined version of a permit, but that it not be made available as a means for obtaining quicker permits for routine situations. The new requirement for an official authorization will make this process more transparent than is the case at present where these issues are addressed in an ad hoc manner.

In order to provide flexibility with regard to this authorization, it is proposed that the regulations not prescribe the process for applying for such an authorization or its possible form and content. The Department will monitor the frequency of returns and rerouting, and where appropriate will ask companies about the steps being taken to address the need for such alternate arrangements.

Participants provided the following feedback on the proposed changes:

• While Environment Canada has claimed that these amendments will result in streamlined administrative controls, several stakeholders expressed concerns that the new requirements will in fact increase the administrative burden. In particular it was suggested that the documentation requirements related to ESM self-certification and waste reduction plans will create significant administrative burdens;
• It was suggested that Environment Canada develop a methodology to calculate the time-to-recycling of revolving inventories;
• The tracking requirements in the proposed amendments could become burdensome for some companies, particularly with respect to the repackaging and blending of shipments at transfer stations. Furthermore, transfer stations will have difficulty in identifying the final destination for all of their materials;
• Some stakeholders were concerned about Environment Canada's approach to defining "authorized carriers" for provinces that do not have requirements/criteria or processes in place to register carriers. This concern was extended to "authorized facilities" in jurisdictions that do not regulate recycling facilities;
• ENGO and community representatives felt strongly that communities should have access to permits/notifications for shipments that travel within their jurisdiction;
• Some stakeholders expressed some concern over the proposed requirements related to the return and rerouting of shipments, which is complicated by inconsistent inter-provincial and international waste classification schemes;
• Industry requested that firms be notified immediately when permit amendments and notifications have been approved. It was also suggested that the level of control and administrative requirements reflect the level of risk associated with the regulated substance; and
• Some suggested that the regulations should make a distinction between brokers, generators and end facilities.

• ⁸ As with the current administrative procedure, companies will be allowed to maintain up to date insurance files with Environment Canada rather than submit these details with the Notice.
• ⁹ Guidance Manual for the Implementationn of the OECD Decision C(2001)107/FINAL