surprising news about waste regulations

Since 1992, Canada has been a party to the international Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The Basel Convention is the most comprehensive global environmental agreement on hazardous and other wastes. It aims to protect human health and the environment against potential adverse effects from the generation, management, transboundary movement and disposal of hazardous and other wastes. 170 of the world’s countries are Parties, including virtually all developed countries except the US. Similar rules are set out in a Canada- US agreement, and in OECD Decision C(2001)107/Final.

Canada implements the Convention (and related agreements) through regulations under the Canadian Environmental Protection Act, 2002, called the Export/Import of Hazardous Waste and Hazardous Recyclable Materials Regulations. On top of the safety controls under the Transportation of Dangerous Goods Regulations such as proper packaging, safety marks, etc., these regulations add an elaborate system of prior notification, insurance and liability. Unfortunately, there are several systemic problems with the EIHWHRM regulations, which have led to some quite unnecessary disputes.

The basic elements of the Regulation are straightforward. Before hazardous waste or hazardous recyclable material can be exported from Canada to a Basel Convention country (or to the US), Canada must request the permission of the intended importing country. The exporter initiates the process by applying to Environment Canada, giving full details of how the waste/ material will be handled. If the importing country agrees, Environment Canada gives the exporter a permit for up to a year’s worth of shipments.

Each shipment must then be accompanied by a movement document (essentially, the usual waste manifest) plus a copy of the permit. The movement document tracks the waste/ material from generator to receiver. Copies of the movement document are sent to Environment Canada at both ends of the shipment, to show that the wastes were sent, and received, where they were authorized to go. Environment Canada also requires certification when the receiver has destroyed the waste or recycled the recyclable material. The same process applies in reverse for hazardous wastes/ recyclable materials imported into Canada.

So, why have there been problems? Some occur because of the mismatch between the text of the EIHWHRM regulations, and its prescribed forms. For example, s. 11 of the regulation requires an exporter to complete the movement document and “indicate” the number of the export permit. The printed instructions on the back of the movement document do not clearly tell exporters to write the number, or where to put it. Some exporters therefore believed that it was sufficient to staple a copy of the permit to the movement document. This turned out not to be acceptable to Environment Canada, presumably because the staples aren’t consistent with its filing system. (The same issue applies to importers, under s. 18 of the regulation.)

A similar problem arose with s. 36 of the regulation, which requires exporters to submit a written, dated and signed “confirmation” that exported waste has been disposed of by the receiver. The disposal must take place within a year, and the confirmation is supposed to be submitted within the next 30 days. No form is prescribed for such a confirmation, and there are no instructions about it on the back of the movement document. Some exporters therefore believed that the completed movement document was itself sufficient evidence of destruction, especially in relation to receivers who destroy waste promptly upon receipt. As it turns out, Environment Canada will accept completed manifests as confirmation under s.36, if the receiver adds a rubber stamp confirming destruction of the waste. For wastes that are destroyed later, many receivers will provide a signed, dated “Certificate of Destruction”. This certificate, or some similar document, must be sent to Environment Canada to satisfy s.36.

Other problems have occurred because of the mismatch between the Canadian regulation and the laws of other countries. For example, the EIHWHRM requires that completed movement documents be sent to Environment Canada within three days after the waste/ recyclable material is delivered to the receiver. Unfortunately, US law gives US receivers 30 days to complete and return the same documents. It can therefore be very difficult for Canadian exporters to get the completed documents back from their US receivers within the very short Canadian deadline.

A second mismatch occurs when multiple Canadian manifests are used for a truckload of waste (e.g. that contains multiple waste classes), while the US uses a single movement document for the entire truckload. US receivers tend to issue a single Certificate of Destruction for the entire load, referencing the single US manifest.  In one recent case, Environment Canada laid charges against an exporter, alleging that it had not submitted completed manifests or certificates of destruction for some exports of hazardous wastes. In fact, multiple Canadian manifests had been submitted to Environment Canada, stapled together with the single US certificate of destruction that referred to the entire truckload. Somehow, not all the manifests were recognized in Environment Canada’s database.

Other problems include confusion about the meaning of foreign laws. For example, Environment Canada failed to recognize for some time that Hong Kong has distinct and separate import laws from those of China. And are certain imports “prohibited” in Hong Kong, simply because they require a permit?

A second common dispute turns on why used items are exported. To prosecute, Environment Canada must prove that such items are being exported for disposal or recycling (in the sense of melting down and material recovery). Second hand goods that are intended for resale, refurbishment or remanufacturing are not presently governed by the Basel Convention or by the EIHWHRM regulation, although future amendments may include them.

A third type of dispute turns on gaps in the regulation itself. For example, what should happen if non-hazardous waste is exported, but rejected by the receiver who suspects that it might be hazardous? Can it be returned to Canada? If so, does it require an import permit as if it were hazardous?

Finally, there is often a gap between the exporters’ obligation to submit documents to Environment Canada, and Environment Canada’s acknowledgement that it has received them.

Exporters, importers and carriers of hazardous waste and hazardous recyclable materials must take these discrepancies and disputes seriously, whether or not they think they have a problem. Environment Canada has been repeatedly criticized for failing to enforce the law on hazardous waste, and has now swung to the other extreme. In several recent cases, Environment Canada’s first expression of concern has been a massive search of offices and perhaps homes, followed by laying dozens of charges. Regardless of the merits of the allegations, this is an incredibly disruptive and expensive experience. It also seems wasteful and unnecessary – in each of the cases we have dealt with, the same improvement in compliance would have been achieved through a warning letter.

However, it’s the new reality. Exporters can no longer rely on getting a warning from Environment Canada if there is a problem. Nor can they rely on the movement document itself; what matters is the text of the Regulation, however difficult it may be to read. Every employee working with hazardous waste exports needs to understand this regulation, and must have a copy that is up to date. Above all, exporters need careful records, so they can prove their compliance with each detail of the regulation. It is not enough to do everything right- you must have the paperwork to prove it.

This chart summarizes highlights of the Regulation for exporters.