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A recent court decision has dramatically widened Ontario’s rules on what constitutes “hazardous waste”. Now, any hotspot can be enough to make an entire load “hazardous waste”. This is a particular risk for those handling spill cleanup materials and other small quantity materials that Regulation 347 says are NOT hazardous waste.

Waste processing, transfer, and disposal, sites deal with large volumes of waste material on a daily basis. In this highly regulated industry, accurate characterization of  wastes is essential. Section 40 of the Environmental Protection Act (EPA) prohibits anyone from depositing, or causing, permitting or arranging for the deposit of, waste in an area that does not hold the appropriate approvals to accept it. This is a serious offence with high minimum fines: $100,000 for a third environmental conviction.

In R. v. 349977 Ontario Inc. [Lacombe Waste Services] the Ontario Court of Justice upheld a Provincial Offences Court decision that an entire load of waste is “hazardous” if samples of hotspots in the load are hazardous.

At trial, the defendant, Lacombe Waste Services, was convicted of depositing hazardous waste at the Lafleche landfill site, which only accepts solid-non-hazardous waste. The basis for this conviction was a poor quality sample deliberately taken from a few hotspots (totalling about 80 kg) in a 28,000 kg load of heterogeneous waste that included spill cleanup materials. The source of the hotspots was unknown; all waste in the load had been received as non-hazardous. The samples were not representative of the average characteristics of the load as a whole. A poor quality analysis of the sample concluded that the hotspots were leachate toxic for perchloroethylene. The Justice of the Peace concluded that the entire load was therefore hazardous.

On appeal, Lacombe argued that the relevant unit, for the purpose of section 40, is the entire load of waste. A conviction under section 40 must be therefore be based on a representative sample of the entire load, not just of “hot spots”. This was supported by expert evidence from Hardy Wong, the original author of Ontario’s hazardous waste regulatory system, that the hazardous waste rules were not intended to be triggered by hotspots, which are not a threat in a landfill. Lacombe also noted that the small quantity exemptions in Regulation 347 are clearly intended to allow small amounts of hazardous material in non-hazardous waste.

The appeal court upheld the conviction, concluding: “There was nothing in the definition of hazardous waste referring to a load, a percentage of a load, or a part thereof.” The regulations do, however, contain a prohibition on mixing hazardous waste with other materials which the Court found supported the Crown position that “hazardous waste does not become non-hazardous by virtue of its inclusion into a large load of non-hazardous waste.”

Although the Court accepted that a conviction must be based on a representative sample, the sample can be “representative” of whatever part of the full load that someone is “concerned” about.

[140] [The Trial Justice] was entitled to make these findings. There is nothing in the EPA or the regulations or case law that suggests a finding of hazardous waste in the context of section 40 of the Act requires representative sampling of the entire truck load.

[141] In support of their position, the appellant[s] refer to a number of cases where the Courts dealt with the issue of what constitutes hazardous waste. R. v. IPSCO Recycling Inc. 2003. FC 1518 (Fed CT.) and R. v. Precision Plastics Ltd. (2003) 3 CELR (3d) 86, Quebec Ciments St. Laurent JE 95 – 1944 (ct de Que). The cases did not deal with section 40 of the EPA and while they refer to the requirement of representative sampling they do not address the issue in this case. They do not deal with a truck load as in this case. However all the cases clearly demonstrate that what is hazardous waste and what is an appropriate representative sample is a question of fact. The particular facts of the case will dictate the answer in each case.

[142] Had there been a requirement that the entire truck load or a specific percentage be hazardous waste before section 40 came into play been intended by the legislators, they could easily have included it with the other exceptions or qualifications to the term “hazardous waste.” However it was not.

[143] The only references to truck load are found in sections 21 to 26 of Reg. 347 which concerns the requirements for manifests when transporting hazardous waste. The sections refer to a “truckload or part thereof” suggesting that if the intent of the legislators was not to define hazardous waste as a percentage of a predetermined load.

[144] Therefore the Trial Justice made no error of law and while there was contradictory evidence presented at trial, his decision was based on his assessment of the evidence and his findings of facts. There is no palpable and overriding which would warrant this Court to interfere with his findings.

The decision has not been further appealed.

This raises significant difficulties for waste generators, transporters and receivers. Most are required by their approvals to characterize their wastes by analysing representative samples of entire loads, piles or waste streams. In convicting Lacombe on the basis of a poor quality sample of very small hotspots, the Court has introduced significant uncertainty into the entire waste characterization process. For example, which portions of a load must be sampled? Who decides what is “of interest”? Does every load have to be unloaded and scrutinized, regardless of what is in their Environmental Compliance Approval? And why don’t MOE enforcement samples have to meet MOE’s own criteria for good quality samples?

Everyone in the waste business should beware.

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