10. Permit of equivalent level of environmental safety (PELES)
Section 190 of CEPA 1999 authorizes the Minister to issue PELES. This provision offers some flexibility to address unique circumstances in the transboundary movement of hazardous waste and hazardous recyclable materials. All aspects of the proposed new regulations can potentially be the subject of a PELES application, as long as the alternative approach provides a level of environmental safety that is at least equivalent to compliance with the regulations and is consistent with Canada's international obligations.
Environment Canada emphasized that the PELES process must allow the Minister to be satisfied that the alternate measure is environmentally equivalent and consistent with Canada's international obligations. The PELES system should also have transparent criteria and procedures that ensure fair application and consistency in approach between international movements and interprovincial movements.
To meet these objectives, Environment Canada proposes that PELES criteria account for the waste management hierarchy, which favours recycling over disposal, in assessing the overall environmental impact of any proposed variance. The Department also plans to publish a guidance document to describe the procedure, including information that must be submitted, criteria the Minister will use to evaluate applications, and the type of publication requirements that may be imposed to ensure transparency.
Applicants will be expected to provide the following types of information:
- The provisions of the regulations for which the applicant wishes a PELES.
- Information on the applicant, including name, role in the movement of the waste or recyclable material (consignor, carrier, etc.), relevant authorizations and a contact person.
- Description of the hazardous waste or hazardous recyclable material, including background material that would have been required to classify it under the regulations (process description and laboratory analyses, etc.).
- Description of the activities anticipated under the PELES, together with an explanation about how the proposed activity will ensure at least an equivalent level of environmental safety. Where appropriate, this may include steps to ensure ESM.
The onus will be on the applicant to ensure that the information is sufficient to explain the relief being sought and the equivalent level of environmental safety of the proposed alternate activity.
The Department will create a central repository to receive and manage PELES applications. It also will develop service standards to ensure that it conducts each PELES review consistently and within a reasonable time frame. The preliminary review of the application will determine if a PELES is actually required to undertake the proposed activity and if the information provided is complete. The Minister or his designate will make the final decision as to whether to issue a PELES. In doing so, he may choose to consult with appropriate experts. This consultation could take various forms:
- Review by Environment Canada, with consultations with provinces/territories/aboriginal governments or other countries involved, particularly in the case of a PELES application that addresses an issue for which a PELES has not already been granted;
- Review by Environment Canada with the assistance of the provincial/territorial/aboriginal governments authorities to enlist the support for technical review from their sources; and
- Review and recommendation by a group of candidates from outside government who would possess the necessary expertise to fulfill the role of technical advisor and who would be on retainer/standby for their particular subject matter expertise.
The key criteria stipulated by CEPA 1999 are that the activity under a PELES: a) ensure a level of environmental safety at least equivalent to that provided by compliance with the regulations and b) conform with Canada's international obligations.
It is not proposed that the regulations stipulate additional criteria. However, the guidance material the Department intends to prepare to support the PELES process may identify various considerations that could be used, on a case-by-case basis to support an assessment of the above two criteria. These supportive considerations may include:
- Does the proposed variance provide any environmental benefit beyond that afforded by compliance with the regulations?
- What is the degree of risk posed by the hazardous waste or hazardous recyclable material and the activities involved in the transboundary movement?
- Is the waste or material subject to international agreements binding on Canada, or to the regulations of any or all of the jurisdictions involved?
- Will Canada be out of compliance with any conditions of those agreements?
- Will there be an adverse impact on the ability of an enforcement officer or CEPA analyst to enforce the regulations or to use their enforcement powers under Part 10 of the Act?
- Is there a mechanism in place to track the hazardous waste or recyclable materials?
- Will the same information be received (by Environment Canada or provinces/territories) as would be received under the regulations?
- Will the information be received in the same time-frame as would be the case under the regulations, or at an appropriate time frame to monitor compliance and avoid environmental risks?
- Will there be a negative impact on compliance with other federal regulations?
- What would be the risk to the environment and human health compared to compliance with the regulations as written
In the evaluation of an application of a PELES, consultation with authorities of the relevant province/territories/aboriginal governments, other countries and other relevant groups within Environment Canada would generally be appropriate. It is likely that consultations will be more extensive and involve all provinces and territories in the case of a PELES application that addresses an issue for which a PELES has not already been granted.
The consultation process for PELES will, as necessary, also include other interested parties.
Once an application for a PELES is made, Environment Canada proposes to publish a summary of application on the Transboundary Movement Branch website indicating the name and location of the requester in addition to the variance sought from the EIHWR.
Environment Canada will also publish each PELES that is granted on the CEPA Registry website, as required under CEPA 1999, in addition to providing a summary of those persons that are seeking an approval for a PELES.
Under Section 190(3) of CEPA 1999, the Minister may revoke a PELES if satisfied that:
- The activity no longer provides an equivalent level of environmental safety,
- The activity is no longer consistent with international obligations,
- The regulations have been amended and address the activity authorized by the permit, or
- The permit holder does not comply with the conditions of the permit.
Failure to comply with the conditions of the PELES will invalidate the permit and could result in action by enforcement officers to deal with the alleged failure.
Participants provided the following comments regarding the proposed PELES mechanism:
- To encourage wider adoption of environmentally sound management, PELES should be granted through industry associations.
- To allow for broader application of PELES, Environment Canada should ensure that the definitions of hazardous materials are consistent across all regulations (EIHWR, federal hazardous materials regulations, interprovincial regulations).
- Environment Canada should streamline the administrative process for the import and export of materials that will contribute to closed loop systems and extended producer responsibility programs.
- The PELES approval process appears to be highly subjective, and with the final decision being made by the Minister without full transparency, it seems likely that politics will play an important role in granting these permits. To limit the role of politics, Environment Canada should develop a set of criteria to be used during the assessment process, and should consider the merits of requiring an independent review of the final decision.
- Some stakeholders questioned Environment Canada's capacity to deal with the case-by-case review of PELES applications, and suggested that additional resources be acquired through cost recovery mechanisms (e.g. permit fees).
- A PELES should initially be granted for one year: after the one-year trial period has been completed, the permit can be reviewed and revised (if necessary), and then renewed for a full three-year term.
- Environment Canada should monitor developments in pollution control and pollution prevention technology, and should ensure that holders of a PELES have implemented Best Available Technology.
- The public should be provided with advance notification of a PELES application, and interested parties should be provided with the opportunity to comment on the permit application.
- Exemptions should be enshrined in regulations, rather than granted through the PELES process. Environment Canada should focus on applying regulations, and should only grant a PELES under unique circumstances.
- The publication requirements associated with a PELES should not require disclosure of confidential information.
- Environment Canada should explore opportunities to harmonize permitting requirements under EIHWR and Transport Canada's TDGR.
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