Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 5

5. Preventing pollution from the transboundary movement of hazardous waste and hazardous recyclable material

• 5.1 Formally enable appropriate response to illegal imports or exports
• 5.2 Expressly allow tailoring of conditions in permits
• 5.3 Extend the authority to revoke or suspend permits

Through authorities provided under Division 8 of Part 7 of the Canadian Environmental Protection Act (CEPA), Environment and Climate Change Canada (ECCC) is responsible for regulating transboundary movements of waste and recyclable material. Under this program, regulations were made to ensure that the hazardous waste and hazardous recyclable material (as defined in those regulations) that are transported across borders are managed in an environmentally sound manner that protects the environment and human health. This Division and its regulations were also enacted to contribute to Canada’s ability to meet its obligations under various international agreements, including:

• The Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Hazardous Recyclable Materials and their Disposal;
• The Decision C(2001)/107/Final of the Council of the Organization for Economic Co-operation (OECD) Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations; and
• The Canada-USA Agreement on the Transboundary Movement of Hazardous Wastes.

Regulations under CEPA also prescribe conditions for inter-provincial/territorial and international movements of hazardous waste and hazardous recyclable material. With respect to international movements, ECCC issues over 2,300 permits per year to authorize more than 58,000 shipments of hazardous waste and hazardous recyclable materials.

5.1 Formally enable appropriate response to illegal imports or exports

Issue

Division 8 of Part 7 of CEPA prohibits the import, export or transit of hazardous waste and hazardous recyclable material, unless the Minister is notified, a permit is issued, and any prescribed conditions are met.

In circumstances where waste or recyclable material is illegally exported from Canada, CEPA lacks the express authority to order an exporter to return it back to a facility in Canada to manage it in an environmentally sound manner, or to manage it in an environmentally sound manner at a facility in the importing country or the country of transit.

Similarly, CEPA does not provide the express authority to order a person who has imported waste or recyclable material in contravention of Division 8 of Part 7 to either return it to the country of export or manage it in an environmentally sound manner in Canada.

In addition, if the government takes action itself (if the non-compliant importer or exporter fail to take the necessary corrective action), there are no express authorities in CEPA to allow for the recovery of the resulting costs.

Possible Approach to Address the Issue

CEPA could be amended to provide the express authority to allow the Minister to:

• require a person who has exported waste or recyclable material in contravention of Division 8 of Part 7 of CEPA or the associated regulations to return it to a facility in Canada for management in an environmentally sound manner or manage it an environmentally sound manner at a facility in the importing country or the country of transit;
• require a person who has imported waste or recyclable material in contravention of Division 8 of Part 7 of CEPA or the associated regulations to similarly manage it in an environmentally sound manner,  either in Canada or after return to the country of export;
• recover the costs incurred by the Government of Canada for taking measures to take-back or return or manage the waste or material, if the exporter or importer fails to do so within the time required.

5.2 Expressly allow tailoring of conditions in permits

Issue

Division 8 of Part 7 of CEPA provides the authority to make regulations prescribing the conditions and duration of permits for the import, export or transit of hazardous waste, hazardous recyclable material and prescribed non-hazardous waste. However, this does not expressly provide the flexibility to tailor the permit conditions or duration of a permit to address specific circumstances on a case-by-case basis.

Possible Approach to Address the Issue

CEPA could be amended to address this issue by expressly allowing conditions and duration of the permit to be set out clearly in the permits themselves.

5.3 Extend the authority to revoke or suspend permits

Issue

There is currently no express authority in the Act to suspend or revoke a permit issued under subsection 185(1) for the import, export or transit of hazardous waste, hazardous recyclable material and prescribed non-hazardous waste. This could be an appropriate action to take in a number of situations, for example:

• if the Minister of ECC has reason to believe that the permit holder  is in contravention of the terms  or conditions of the permit;
• if the Minister has reason to believe that a person provided false or misleading information in his notification to obtain the permit;
• if the authorities of the country of destination or transit or of the jurisdiction of destination in Canada suspended or revoked their authorization.

Possible Approach to Address the Issue

CEPA could be amended to expressly provide the authorities to suspend or revoke permits issued under subsection 185(1), in certain circumstances, such as those listed above.