Proposed CEPA Export and Import of Hazardous Wastes and Hazardous Recyclable Materials Regulations

- Discussion Paper -

Transboundary Movement Branch
Environment Canada

January 18, 2002

Environment Canada intends to revise the Export and Import of Hazardous Wastes Regulations (EIHWR). This paper is intended to support the second round of major public consultations concerning these reforms.

Environment Canada adopted the Export and Import of Hazardous Wastes Regulations (EIHWR) in 1992 under the authority of the former Canadian Environmental Protection Act, 1988 (CEPA, 1988). The EIHWR are now under the authority of the new Canadian Environmental Protection Act, 1999 (CEPA, 1999). The EIHWR are intended to protect Canada's environment from the risks posed by unregulated traffic in hazardous wastes and hazardous recyclable materials to implement Canada's international obligations to protect the environment of other countries from uncontrolled exports of these wastes and recyclable materials from Canada.

Since 1992, the volume of hazardous wastes and hazardous recyclable materials crossing Canada's border has increased, particularly in 1998 and 1999 where there had been increases in imports of hazardous waste destined for final disposal. As well, during the last decade, various changes to the domestic and international legal regimes have occurred, and the parties involved in managing transboundary movements of hazardous wastes and hazardous recyclable materials have identified opportunities to enhance the efficiency and effectiveness of the design and implementation of the EIHWR. Through the Canadian Council of Ministers of the Environment Hazardous Waste Task Group (CCME HWTG), Environment Canada, the provinces and relevant industries have identified numerous opportunities to harmonize the relevant federal-provincial regimes, particularly in defining hazardous waste and hazardous recyclable material.

The international regimes regulating the import and export of hazardous wastes and hazardous recyclable material have also evolved. These international obligations stem from three different agreements:

• the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989;
• the OECD Decision of Council concerning the control of transfrontier movements of wastes destined for recovery operations, C(92)39/Final, March 1992, as amended; and
• the Canada-United States Agreement Concerning the Transboundary Movement of Hazardous Wastes, 1986 (as amended in 1992).

Similarly, CEPA, 1999, in force since April 2000, includes various important new provisions with respect to hazardous waste and hazardous recyclable materials. One of the most important of these changes is the clear authority for a distinct control regime for exports and imports of hazardous recyclable materials. In addition, the new Act authorizes of the Minister of Environment to:

• prohibit exports, imports or transits in order to implement international agreements;
• develop criteria to ensure the environmentally sound management of wastes or recyclable materials, and to refuse permits for import or export if these criteria are not met;
• issue permits for activities that are different from the requirements set out in the regulations but that are of an "equivalent level of environmental safety"; and
• require the preparation of plans to reduce wastes destined for final disposal.

As a result of these various developments, Environment Canada is developing new regulations to replace the EIHWR. Given the decoupling of the definitions of waste and recyclable materials under CEPA, 1999, these new regulations will become the Export and Import of Hazardous Wastes and Hazardous Recyclable Materials Regulations (EIHWHRM Regulations).

The EIHWHRM Regulations will retain the primary objective of ensuring that the environment and human health of Canadians and others is protected when transboundary movements of hazardous wastes and hazardous recyclable materials take place. As with the current EIHWR, the new regulations will establish controls on such movements that are consistent with Canada's international obligations. The new regulations will also contain substantial revisions from the current EIHWR in order to:

• address each of the new CEPA, 1999 authorities;
• facilitate recycling by providing a distinct control regime for recyclable materials;
• enhance the efficiency with which the control regime can be administered and complied;
• improve federal-provincial and US-Canadian harmonization; and
• strengthen the linkages between the import/export provisions under CEPA and the other elements of CEPA, 1999, including in particular the toxic substances provisions.

In addition to revising the substantive content of the regulations, Environment Canada also intends to improve the clarity of the regulations as a whole. It will strive to enhance the readability of the regulations. Among other things, this may involve in "clear language" drafting and the use of statements of purpose for each of the main parts of the regulations.

This discussion paper is being released as part of a public consultation process concerning the development of the new EIHWHRM Regulations. It follows a round of initial consultations held in February and March of 2001 to inform stakeholders of the scope of the amendment process and to solicit initial input.

Following this second major round of consultations, Environment Canada will prepare draft regulations to amend the current EIHWR. It will also undertake a study on the potential socio-economic impacts of the new regulations. Stakeholders will have another opportunity to provide comments following the release of the report of this second round of consultation which will be taken into account in the drafting process.

Following these consultations, the Government will follow the formal regulatory process prescribed by the Statutory Instruments Act (R.S., 1985, C. S-22):

• The Minister of Environment will publish a copy of the proposed regulations in Part I of the Canada Gazette. It is expected that this will occur in December 2002.
• Within 60 days after the publication of a proposed regulations, any person may file with the Minister written comments on the proposed regulation.
• Once the proposed regulation has been finalized, taking into account the comments received during the 60-day public consultation period, the Government will publish the final official regulations in Part II of the Canada Gazette.

The remainder of this paper follows the possible structure of the main parts of the new regulation. The language used describes the proposed content of the section; it does not represent legal text.