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Consultations on PCB Waste Export and Import Regulations
3.1 PCB Use and PCB Waste Management in Canada
While never manufactured in Canada, PCBs were imported from the United States since the 1930's and were in wide use in electrical equipment and numerous other products until the late 1970's. At that time research linked PCBs to cancer, reproductive failure, birth deformities and other health problems in many animals and was generally thought, though not conclusively proven, that when not properly managed, could have significant effects on human health including cancer and immune system dysfunction.2
Commercial, manufacturing and processing uses of PCBs were restricted in Canada in 1977 with the introduction of the Chlorobiphenyls Regulations. The effect of these regulations was to bring an end to the manufacture and import of new PCB equipment and the refilling of existing equipment with fluids containing PCBs. By the late 1980s, legislation and formal agreements controlling the management of PCBs were in place. Under this regime, materials containing PCB wastes were subject to control if they contained concentrations of 50 mg or more of PCBs per kilogram (i.e. 50 parts per million or ppm). These initiatives included the Transportation of Dangerous Goods Act and Regulations, Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste, the PCB Waste Storage Regulations under the Canadian Environmental Protection Act, and several CCME Guidelines on PCB waste management.
Considerable volumes of PCB's have been taken out of service and the resulting PCB wastes have been disposed. There remains in Canada and elsewhere, sizable volumes of PCBs still in equipment in service prior to the date of the legislation and substantial quantities of PCB-contaminated wastes in storage waiting to be treated. These materials must be treated in an environmentally sound and expeditious manner.
Domestically, the federal government and the provinces share jurisdiction for the management of wastes and recyclable materials. The federal government authority for PCB waste is to control the import, export, release to the environment, storage and transboundary movement as stipulated by the Canadian Environment Protection Act and the Transportation of Dangerous Goods Act. The provincial and territorial governments regulate intraprovincial movements of PCB waste. They are also responsible for establishing controls for licensing of PCB waste carriers and treatment facilities within their jurisdictions.
The federal and provincial governments cooperate through the Canadian Council of Ministers of the Environment (CCME) to developed substance and technology specific guidelines that have specific application to PCB management. These guidelines are then used in drafting legislation, reviewing environmental assessment and in issuing permits and certificates of approval. The relevant CCME guidelines are as follows:
- Codes of Practice for Used Oil Management (1989)
- Guidelines for PCB Waste Management (1989)
- Guidelines for Chemical PCB Treatment (1990)
- Guidelines for PCB Destruction (Incineration) (1990)
- Hazardous Waste Landfill Guidelines (1991)
- Hazardous Waste Incinerator Guidelines (1992)
- PCB Transformer Decontamination Protocols (1995)
- National Guidelines for the Use of Hazardous and Non-hazardous Waste as Supplementary Fuels in Cement Kilns (1996)
Given the complexity of the regulatory regime, co-operation and co-ordination of the federal, provincial, territorial governments and aboriginal peoples is essential for Canada to be successful in developing and implementing a suitable PCB management system.
In Canada, there are currently nine major facilities approved for PCB waste management: two in Alberta;3 two in Quebec; and five in Ontario. A number of other companies are involved in the transportation, storage, transfer and pretreatment of PCB waste.
3.2 PCB Export and Import in Canada
Canada permitted the export of Canadian PCB wastes only to the United States and only for destruction in the 1990 PCB Waste Export Regulations created under CEPA, 1988. At the time, the United States border had been closed to PCB imports since 1980. The only exports of PCB wastes from Canada allowed into the United States in the early 1990s were United States government-owned PCB wastes to be returned to that country for disposal.
In 1995, the U.S. moved to open the border for a broader range of PCB waste from Canada. In order to have time to assess whether the PCBs being exported would be subject to environmentally sound management, Canada obtained an Interim Order temporarily banning the export of Canadian PCB waste to the United States in 1995.
In February 1997, following a review of the 1996 US PCB Waste Import Rule, the revised PCBWER were adopted in Canada and the Canadian border reopened to the export of PCB wastes. These regulations allow the export of PCB waste only to the United States but only for disposal at an authorized facility other than a landfill. This landfill prohibition is consistent with the Technical Guidelines under Basel Convention on the Transboundary Movement of Hazardous Wastes.
The PCBWER contain additional conditions for exporting PCB wastes. However, because the importation of wastes containing PCBs above 2 ppm into the United States was effectively banned by a court ruling on a Sierra Legal Defense Fund challenge to the U.S. EPA PCB Rule under the Toxic Substances Control Act (TSCA) in July 1997, all these provisions are presently moot.
As stated in Section 2 above, the present authority to control the export and import of hazardous wastes, including PCB wastes is found CEPA, 1999. As described above, the PCBWER were established under CEPA, 1988 and rolled over under CEPA, 1999 to control the export of PCB wastes above 50 ppm from Canada. The import of PCB wastes are regulated under the general provisions of EIHWR which have been in effect since 1992.
Together the PCBWER and EIHWR establish the conditions for the export and import of PCB wastes above 50 ppm shipped across the Canadian border. These regulations ensure that transboundary PCB
wastes have been consented to by the receiving country or province before shipment, thereby respecting the sovereign right of states to determine what enters and leaves their jurisdiction. They also ensure that shipments of PCB wastes entering into, leaving or passing through Canada can be tracked and controlled by Environment Canada with the assistance of various other government agencies and jurisdictions. Tracking shipments is an important part of assuring that the PCB wastes reach their final intended destination and are properly managed.
The PCBWER and the EIHWR are founded on Canada's commitment to protecting the Canadian environment and implement Canada's international obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal and the Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste.4
Ensuring the environmentally sound management of all hazardous wastes and hazardous recyclable materials, both domestic and imported, is one obligation common to both commitments. The development of new PCB regulations for export and import will contribute to meeting that obligation and strengthen current controls on imports of PCBs.
To date there has been no import of PCB wastes under the EIHWR. However, in the last year there has been increased interest in the area. In December 1999, the province of Alberta began to allow imports from outside Canada to the Swan Hills Treatment Centre. Other Canadian companies are increasingly interested in the possibility of importing PCB wastes from other countries, especially from developing countries with no capacity to manage their wastes in an environmentally sound manner.
At the same time, there have been concerns expressed over the increasing imports of hazardous waste into Ontario and Québec, especially for landfill without treatment. However, as shown above, PCB waste disposal is highly regulated in Canada. It is also important to note that the landfilling or recycling of any PCB waste imports is prohibited in Canada. Any imported PCB waste must be destroyed. (Controls on the environmentally sound management of PCB waste imports will be further discussed in section 4.3.)
The chronological history of PCBs and the Canadian border is summarized in Appendix A.
- 2 Government of Canada, Economic Impact Analysis of Proposed Amendments to the CEPA Chlorobiphenyls Regulations and Storage of PCB Material Regulations, draft summary report by Headwater Environmental Services Corporation (Environment Canada, Environmental Protection, August 2000) at p.1.
- 3 The Alberta government recently announced an interim arrangement for continued operation of the Swan Hills Treatment Centre, following the decision by the private contractor that had been operating the facility to stop operations at the end of December 2000.
- 4 Canada's controls on imports and exports of hazardous recyclable materials are also based on OECD Council Decision C(92)39 on wastes destined for recovery operations. However, since PCB wastes are only allowed to be shipped for disposal, this international agreement does not directly impact transboundary movements of PCBs.
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