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Reply to Comments Received in Submissions on the Proposed Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations

Comments and Reply: Movement Document

A number of comments were received by both industry and association stakeholders with respect to the movement document provisions set out in the proposed Regulations.

Harmonization of the Movement Document with the Province

Currently there are no agreements between the federal and provincial governments relieving the requirement of completing two (2) manifests. The negative and unnecessary impact of requiring two separate manifests for every waste movement will be most severe on the Ontario hazardous waste industry. Ontario is the only province that requires the use of a specific hazardous waste manifest (embedded in its regulation). We recommend that Environment Canada resolve this issue (complete harmonization of the manifest) with the Ontario Ministry of Environment and Regulation 347 prior to the implementation of the EIHWR.

Response: Environment Canada agrees with this recommendation, and is proposing a fully harmonized movement document that will meet both provincial and international requirements. The prescribed form will also meet the requirements for shipping documents under the Clear Language TDGR.

Submission to the Minister

We understand that Environment Canada is working on EDI provisions and highly recommend that every effort be made to incorporate the EDI option in the regulations.

There should be a provision for the electronic filing of manifest data and confirmation of disposal/recycling using the secure portal developed for such use and being employed for the Government of Canada Market Place administered by PWGS Canada.

Is it possible to require that the manifest be sent to the province of export if required by the authorities of the province as opposed to the laws of the province?

Sections 9 (8) and 13 (7) require the Exporter and the Importer to provide the same units of measure on the manifest as indicated within the notice. This condition is overly restrictive, as both foreign and Canadian facilities are not all equipped with scales or metering devices. We feel that estimates of volume have to be allowed in some circumstances and that the measurement associated with these estimates may not always match the units indicated on the notice. This requirement creates no environmental benefit and if left unchanged will create non-compliance issues within the industry.

Streamlined manifest procedures for recyclers for shipments from OECD countries (page 693) - The regulations provide no information on how manifest procedures will be streamlined. Environment Canada should at least provide some preliminary concepts on how this will be accomplished in this section.

Response: Environment Canada will allow regulatees to submit movement documents and notices electronically, as PDFs.

Environment Canada is also working toward the electronic transmission of both notices and movement documents, and on developing an electronic interface.

The wording of the proposed Regulations has been modified to require that the movement document be sent to the authorities of the province of export or import, if required.

The same units of measure indicated on the notice must also be used on the movement document. Environment Canada's international agreements prescribe these units as kilograms or litres

Form

Two documents, one for federal requirements and one for provincial/territorial requirements (where applicable), may be required for those portions of the movement of these wastes/materials within Canada. We believe that the federal government along with the provinces and territories should work together to address these documentation concerns.

We would like to point out that the manifest is not bilingual rather two unilingual forms are proposed. Given that the majority of movements is with the U.S. this will result in the strong probability that only the English version will be used. The Regulations should indicate that only one version of the form needs to be completed rather than both the French and English

Retaining the word "manifest" as a descriptor for a hazardous recyclable materials shipping document implies 'waste' due to the legacy of that term whereas application of the formerly proposed "movement control document" terminology would be of appreciable benefit in the optics of differentiating hazardous waste from hazardous recyclable materials.

The form has too much redundancy i.e. duplicates information found on the Notice and the Permit. The redundancy should be eliminated to reduce the additional administrative burden and the manifest should be cross referenced to the Permit that accompanies the manifest. The codes on the manifest are not the same as on the notices. It is necessary to harmonize these codes.

We believe the proposed manifest should contain the quantities shipped and quantities received as in the current manifest.

Response: Environment Canada agrees with the recommendation of working with the provinces and territories to address documentation concerns. Environment Canada is proposing a tracking form that will meet the needs of the Department, provinces, including the Ontario Ministry of Environment, and a shipping document under the TDGR. The form includes the quantities shipped and received (as found in the current manifest), and has been modified to incorporate the additional codes required for transboundary movements. A number of codes found in the notice must also be outlined in the tracking form in order to meet international obligations under both the Basel Convention and the OECD Decision.

Environment Canada agrees with the recommendation to re-name the manifest tracking document the movement document. The revised document, which will be bilingual, will be incorporated into the proposed Regulations.

Section 7(e)(v)(A) requires the foreign receiver to "provide a copy of the manifest to the exporter immediately after accepting" the material. The term immediately is unclear and could be misinterpreted. Would a fax sent to the exporter within several hours meet the criterion or an overnight courier? The language regarding when the manifest must be sent to the exporter should be more clearly defined or removed in context of the five-day time period acceptance criterion. It is recommended to replace the word immediately with the phrase "within 2 working business days" to clarify the responsibility.

Section 9(6) requires exporters to send a copy of the manifest to the Minister within three working days after the hazardous waste or hazardous recyclable material is accepted by the foreign receiver. It is recommended to reword this section to state "within seven working days of receiving a copy of the manifest from the foreign receiver"

Section 15 of the manifest (box referring to "accepted") complicates the Importers' legal defense with respect to acceptance and non-conforming waste (whether banned by Canada, or by company's Certificate, License, etc.). Acceptance is defined as within the industry as deemed to be in compliance with the site's certificate or license, as well as within the terms of the agreed contract. As such, acceptance can only be achieved after an act of validation has taken place. This usually involves testing or detailed inspection - not usually achievable within three (3) days. Receipt is defined as to take or accept (something offered or given) into one's possession. The Oxford definition of this term is applied in the waste management industry as it provides separation from Acceptance and the associated legal ramifications.

Environment Canada should remove the acceptance box in Section 15 of the manifest or extend the time frame [from three (3) days to five (5) days] that is attached to submission to be consistent with Section 12 of the regulation.

The proposed regulation requires that the Exporter "must ensure" that the information required for each carrier and foreign receiver be completed. This places an onus on us, without a corresponding ability for us to control these parties.

Response: The term "immediately" has been dropped from the contract requirements. It will be the responsibility of the exporter or importer to ensure proper procedures are in place to obtain a copy of the movement document from their foreign counterpart and provide it to the Minister within the time set out by the proposed Regulations.

Retention of Movement Document

There is a requirement that the manifests be kept for 3 years. It is recommended to maintain the current requirement for a two year retention period as it is harmonized with the Ontario Regulation 347 and will not cause any confusion or increase the burden on the Ontario industry.

Response: The length of time the movement document must be kept has been changed from two to three years. This is necessary to comply with Canada's international obligations under the OECD Decision, which requires that these documents be kept for three years.