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Consultations on PCB Waste Export and Import Regulations
4. Proposed Amendments to the PCB Waste Export and Import Regulations
- 4.1 CEPA, 1999
- 4.2 Comparison of Conditions on Exports and Imports
- 4.3 PCB Waste Export and Import Regulations - Proposed Amendments
- 4.4 Proposed Changes to Export Controls
- 4.5 New Section on Conditions on Import
- 4.6 Additional Changes to Current Import Controls
- 4.7 Wastes Containing Low Levels of PCBs for Exports and Imports
4.1 CEPA, 1999
CEPA, 1999 strengthens the provisions concerning control and management of hazardous waste. The existing regulations governing PCB waste export and import will be amended accordingly, first through the amendment to the current PCBWER and, it is expected, subsequently through amendments to the EIHWR to integrate the controls import and export of PCB wastes into those regulations.
Among other authorities, CEPA, 1999 includes the authority for Environment Canada to:
- require exporters of hazardous waste destined for final disposal to submit waste reduction plans;
- develop and implement more stringent criteria to assess the environmentally sound management of transboundary hazardous waste; and
- refuse to issue permits for export or import if these criteria are not met.
As explained earlier in this paper, the requirements for waste reduction plans, new environmentally sound management criteria, and equivalent level of environmental safety permits will require some time to develop since they will apply to all hazardous wastes and hazardous recyclable materials. In the interim, Environment Canada is moving forward to strengthen the existing regulations on the import and export of PCB wastes.
4.2 Comparison of Conditions on Exports and Imports
One of the main goals of this amendment is to ensure that the controls on the import of PCB wastes are as stringent as those for exports. The following table (Table 1) provides a brief comparison of the current requirements for export and import of PCB wastes under the PCBWER and the EIHWR.
4.3 PCB Waste Export and Import Regulations - Proposed Amendments
New regulations on the export and import of PCB wastes will be implemented under Section 185 of CEPA, 1999. These new regulations will carry over the provisions of the PCBWER while adding provisions for the import of PCB waste for disposal in Canada.
The main objective of changing the PCBWER to the PCBWEIR is to strengthen the controls on imports of PCB wastes and harmonize the requirements between imports and exports. This will be done, firstly, by ensuring that the regulatory requirements on imports are fully consistent with those set out for exports in the PCBWER. This will require creating a new section in the current PCBWER to add parallel controls on imports. Given the similarity of the two regulations, it is proposed that a number of the current import controls for PCB wastes under EIHWR will remain the same under the new regulations.
The consideration of possible additional control for both imports and exports of PCB contaminated wastes in concentrations between 2 and 50 ppm, consistent with new controls being established under the PCB Regulations,will also be part of the consultation process on the PCBWEIR. This proposal is discussed in greater detail below.
|Subject||PCB Waste Exports||PCB Waste Imports||Difference to be Addressed|
|5 As defined in the regulations, refers to the Chief of the Transboundary Movement Division of Environment Canada.|
|Applicability||PCB liquids, PCB solids, PCB mixtures, PCB equipment, PCB-contaminated solid or electrical equipment, packaging, at a concentration of 50 mg/kg or more. Provides a more specific list of waste types and disposal activities applicable to PCB wastes.||Wastes that contain or consist of polychlorinated biphenyls (PCBs) at a concentration of 50 mg/kg or more.||Imports less specific in describing PCB wastes.|
|Countries of export/import and operation||Export to U.S. only for disposal at authorized disposal facility not landfilling.||Exporting country party to Basel Convention, Canada-USA Agreement.||Imports less prescriptive on other country involved.|
|Canadian Exporters/Importers||Exporter is person whose activity generated the waste, is removing waste from site owned by someone else, acting on behalf of government, or collects or receives wastes and then processes it for disposal at that person's facility in a manner that changes the physical and chemical characteristics.||Importer is disposer in Canada.||No change required.|
|Notice||Exporter required to provide the Chief 5 with completed PCB Waste Notice Form, with proof of insurance and contract attached. On request of Chief, copy of written authorization issued by USEPA to the importer must also be provided.||Importer completes notice as per Regulations and send to Environment Canada; copy of contract, proof of insurance attached to notice.||PCB Waste exports and imports use different notice forms; export notice has additional information.|
|Authorization||The carriers and disposal facility must be authorized; written authorization under TSCA allowing import and disposal.||Authorized carrier and disposal facility. Province must consent to the import.||No change required.|
|Insurance||Exporter and carriers insured against third party damages and costs imposed by laws; Exporters need $5 million coverage for each shipment; Carriers need sufficient amount as required by law in countries in which PCB waste transported; liability extends from time waste shipped until accepted at an authorized facility||Importer and carrier insured against third party damages and costs imposed by laws; importers need $5 million coverage of each shipment; Carriers need amount specified by law of country through which waste is transported or by international convention; liability extends from time waste enters Canada until accepted at facility or until the waste leaves Canada if returned||No change required.|
|Contracts||Signed, written contract between exporter and foreign importer, including:|
- type of disposal operation, including information on any activity to destroy residues for decontamination processes.
- statement that export is for disposal only
- importer to provide copy of manifest 5 days after delivery and a certificate 30 days after disposal, including the disposal of any residue
- importer to take all practicable measures to help exporter to fulfill undertaking and arrange for proper storage and disposal if disposal cannot occur as notified
- identification of a temporary storage facility where the waste can be stored for up to 90 days if the importer cannot accept the waste
|Signed, written contract between importer and foreign exporter containing:|
-code for disposal operation;
- importer to return manifest within 3 days after delivery and written confirmation 30 days after disposal
- importer to take all practicable measures to help exporter comply with Basel Agreement if disposal cannot occur.
|Export contract has additional requirements, especially on temporary storage facility.|
|Consent||Exporter receives written confirmation from Chief that EPA has consented to import or not objected within 45 days after written acknowledgment of receipt of PCB Waste Notice Form. Written confirmation that transit countries do not object.||Importer received written confirmation from the Chief that the province of import has provided a written statement that disposal permissible under provincial law. Written confirmation that countries of transit do not object.||Written confirmation required from all provinces involved since facilities regulated at provincial level.|
|Manifest||Exporter and importer complete relevant portions and is included with the shipment; reference number of PCB Waste Notice Form included. Copies of manifest, notice and confirmation of consent stored during transit and deposited at identified customs office.||Exporter and importer complete relevant portions and is included with the shipment; reference number import notice included. Copies of manifest, notice and confirmation of consent stored during transit and deposited at identified customs office.||Should refer to PCB notice if it is to be used for imports as well.|
|Safety in transport||Proper packaging, labeling and placarding as per the Transportation of Dangerous Goods Regulations.||Proper packaging, labeling and placarding as per the Transportation of Dangerous Goods Regulations.||No changes required.|
|Alternate arrangements||Where waste cannot be disposed of as intended the exporter must inform the Chief and USEPA and make alternate arrangement for temporary storage and disposal within specific time frames.||As per contract obligations.||Imports have less specific requirements than exports.|
Given these objectives, it is proposed that the changes not be wide sweeping because they are primarily intended to ensure uniform interpretation of the controls applicable to import and export of PCB waste. Environmentally sound management, waste reduction plans, and equivalent levels of safety are not incorporated in the proposed regulations because they are planned to be dealt with through other mechanisms, such as the new EIHWR.
A copy of the current PCBWER and EIHWR are available at the CEPA Environmental Registry Regulations site.
The following subsections describe in more detail the proposed changes to these regulations to make them cover both imports and exports.
4.4 Proposed Changes to Export Controls
Several consequential changes will be proposed to the current PCBWER sections for definitions, notice, alternate arrangement and insurance sections to ensure the terms apply to both imports and exports and to ensure consistency with CEPA, 1999. Except for these small consequential changes, it is not intended to make any changes to the current controls for the export of PCB wastes at this time. Broader changes to both the export and import requirements for PCB wastes will be reexamined as follow-up to the amendments to the EIHWR, expected to be in place in 2003.
4.5 New Section on Conditions on Import
Several changes will be proposed to ensure consistency of the import and export controls. These will be further discussed below. A new section is proposed to include the list of conditions for imports of PCB wastes, similar to those in EIHWR with some key additions:
1. Criteria on the country of export
Canada does not want to be seen as the country of choice for the disposal of PCB wastes for the world. Several countries in Europe have a history of PCB waste imports. However, Canada has not imported any PCB wastes in accordance with the EIHWR to date and Environment Canada does not anticipate that these proposed regulations, intended to strengthen Canada's import controls, will result in large quantities of PCB wastes being imported into Canada for the reasons outlined below.
The small number of PCB disposal facilities in Canada, the current US ban on export of PCB wastes and the proposed new CEPA PCB Regulations, which will establish phase out and destruction deadlines for PCBs in use and storage in Canada, will create market conditions which are unlikely to favor large volumes of imports. In addition, the certificate of approval of some facilities includes conditions on service areas that establish the places from which wastes may be received.
At the same time, there are a very limited number of facilities throughout the world capable of disposing of various types of PCB wastes. Due to their stable chemical nature, the destruction of PCB wastes in an environmentally sound manner requires sophisticated technology, which few if any developing countries possess.
Although one of the goals of the Basel Convention is to promote the disposal of hazardous wastes to the extent possible within the country of generation, Article 4.9 specifically allows transboundary movements where the country of export does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites in order to dispose of the waste in question in an environmentally sound and efficient manner.
As such, the import condition in the proposed PCBWEIR, plans to include a specific requirement that any import be in accordance with Canada's obligations under the Canada-USA Agreement or the Basel Convention. Where an import notice is provided for countries other than the United States (which has a long-standing ban on the export of PCB wastes). It is proposed that Canada will require the country of export provide written confirmation that it does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites in order to dispose of the waste in question in an environmentally sound and efficient manner.
In this way, Canada can provide assistance to those countries lacking the necessary capacity, while ensuring proper transboundary movement controls. In doing so, this will not only protect the environment of those countries but because there is scientific evidence that air deposition, including from distance sources is a significant factor in PCB loading in the Great Lakes. With its fragile ecosystem, PCB airborne deposition in the Canadian Arctic would be of particular concern. As such, providing environmentally sound disposal of PCB wastes for countries lacking the necessary capacity may also benefit Canadian environment.
2. Environmentally sound management
Under the Basel Convention, it is the obligation of the country of import to prohibit the import of hazardous wastes unless they can be managed in an environmentally sound manner (ESM). Although several waste stream and operation-specific technical guidelines have been developed under the Convention, until the last Conference of the Parties in 1999 where a ten year ESM work plan and vision statement were adopted, little had been done internationally to work at further defining ESM.
PCB and PCB wastes are highly regulated substances in Canada, with controls on their use, waste storage, handling, transportation, release to the environment and disposal. The PCBWER currently permit the export for disposal only, except export for landfilling of PCBs, consistent with the Basel Convention Technical Guidelines on the management of PCB wastes. Although the EIHWR does not include a specific statement to that effect, because of the prohibition in the Chlorobiphenyls Regulations on imports other than for disposal and the corresponding CCME policy, the effect is the same. However, for further clarity, it is proposed that the prohibition on import for landfilling and the requirement that any imports of PCB wastes be destined for destruction be specifically included for imports in the new PCBWEIR.
In part, in response to concerns about increasing imports of other types of hazardous wastes, especially those for landfilling from the United States, Environment Canada has initiated a new program to develop a national regime for ESM of hazardous wastes. As this work progresses over the next three to five years, the current stringent controls on PCB waste management will be reexamined. This review will take into account the evolving work on ESM for all hazardous wastes under the Basel Convention and any new controls specific to PCB wastes resulting from work related to the recently finalized draft convention to reduce and eliminate Persistent Organic Pollutants (the so-called POPs Convention). This work will also be used in the development of ESM criteria for the new EIHWR.
Until such time as the full set of ESM criteria is developed under CEPA, 1999 for all hazardous wastes and hazardous recyclable materials, it is proposed that further definition of what is considered environmentally sound management be added to the import controls under the new PCBWEIR through reference to the current PCB waste management guidelines under the CCME and the Basel Convention.
3. Changes to contract requirements
To ensure consistency with the export controls, some changes will be proposed to the current contract requirements for the import of PCB wastes, specifically that the contract between the importer and the export as follows:
- specify the type of disposal operation, including information on any activity to destroy residues for decontamination processes, as per the same list of operations in the PCBWER;
- include a statement that import is for disposal only;
- in addition to the requirement for returning manifest copies and a certificate of disposal by the importer, a requirement for submission of a certificate of disposal 30 days following the disposal of any residues from the decontamination of transformers;
- a statement that requires the importer to take all practicable measures to help exporter to fulfill undertaking and arrange for proper storage and disposal if disposal cannot occur; and,
- identification of a temporary storage facility where the waste can be stored for up to 90 days if the importer cannot immediately accept the waste.
This last statement is considered by Environment Canada to be essential to ensuring that the proper contingency plan is in place should, for unforeseen reasons, alternate disposal arrangements be required for a particular import. Because there are a limited number of facilities in Canada capable of managing PCB wastes and export to the United States is not allowed under US law, Environment Canada considers that it is important to have such contingency plans in place prior to shipment.
4. Authorized facilities and additional requirements for provincial consent.
Prior to consenting to any import of PCB wastes, it is imperative to ensure that the PCB waste and any residue from its production can be treated at an authorized facility. As set out in the contract requirements above, contingency planning will be required before any import occurs. It is important to ensure that these contingency plans are consistent with environmentally sound management and that all facilities included in these plans are authorized to receive and dispose of the type of PCB waste in question.
Under the current import controls for PCB and other hazardous wastes, consent to an import notice is only required from the province where the waste will be first imported. Two new requirements for obtaining written consent before permitting the import will be added:
- Written consent will be required from the province where any temporary storage facility required to be identified in the contract is located to ensure that this facility is authorized to store such PCB wastes.
- Written consent will be required from the province or provinces where any residues from the disposal operation that still meet the definition of PCB waste will be sent for final disposal.
Take the following case, for example. An import notice is submitted by a transformer decontamination facility in Quebec. Through the decontamination process, transformers are cleaned to a PCB surface contamination level of less than 10 m/100 cm2 and PCB contaminated residue is created, which contains more than 50 ppm of PCBs. The cleaned transformer parts are destined for metal recovery in Manitoba and the residues from decontamination are destined for incineration in Alberta. As required under the regulations, the contract attached to the notice named a facility in Ontario where the waste imported could be stored for up to 90 days, pending alternate arrangement should the importer be unable to process the waste as notified. In this case, consent for the import and decontamination would be required from the province of Quebec; consent for the incineration of the residues would be required from Alberta; and, consent to any temporary storage at the facility in Ontario would also be required. Since in this particular example, the cleaned transformer parts no longer meet the definition of PCB waste, consent from Manitoba is not required.
4.6 Additional Changes to Current Import Controls
In addition to including a new section to the current PCBWER to set out the main conditions for imports of PCB wastes, other changes are proposed:
1. Use of new notice
A person intending to import PCB wastes would be required to notify using the same notice form as required for PCB waste exports. The notice form in the current PCBWEIR requires additional information than is currently required in the EIHWR notice form. The current PCB notice form would have to be slightly amended to make reference to imports as well as exports.
2. Use of specific waste types
EIHWR only includes one general listing for all PCB wastes, whereas the PCBWER identifies 6 different types of PCB wastes. Under the new PCBWEIR, importers of PCB wastes would have to identify their wastes under these 6 types.
3. Use of specific disposal operation code
EIHWR provides a listing of disposal operations that is generic for all types of hazardous wastes, whereas the PCBWER identifies 6 specific permissible disposal for PCB wastes. Under the new PCBWEIR, importers of PCB wastes would have to identify their operation and that of the disposer of any PCB waste residues under these 6 PCB disposal operations.
4. Alternate arrangements
The PCBWER includes specific obligations for the exporter to inform the relevant authorities in the countries concerned and make alternate arrangements as approved by these authorities should disposal of an imported material not be able to occur as notified. These arrangements are intended to cover exceptional circumstances. Beyond the contract requirements, EIHWR is not as specific with respect to the obligations of an importer (of PCB or other hazardous waste) in such circumstances.
Consistent with the new requirements for contracts and for obtaining consent from the authorities in all of the provinces concerned, specific obligations will be included in the new PCBWEIR to require the importer to notify the relevant authorities and to assist the foreign exporter in making alternate arrangements for the temporary storage and disposal elsewhere in Canada, or, where such arrangements are not possible, for the return of the waste to the country of export.
4.7 Wastes Containing Low Levels of PCBs for Exports and Imports
The current definition for PCB wastes as a type of hazardous waste is generally set at 50 ppm or above in most jurisdiction in Canada and internationally. However, it has been suggested that it may be appropriate to consider some type of control on the import and export of wastes containing PCBs below this level. Without changing the definition of hazardous PCB waste, it is proposed to consider the merits of controlling imports and export of wastes containing PCBs in concentrations between 2 and 50 ppm.
There are several reasons for this proposal:
- In addition to prohibitions on imports of PCBs above 50 ppm except for disposal, the new PCB Regulations will prohibit, with some specific exceptions, the import of PCBs between 2 and 50 ppm for use, including recycling, where the resulting product contains more than 2 ppm of PCBs.
- Some Canadian facilities have service areas in their provincial permit which does not allow them to import wastes, whether above or below the 50 ppm regulated limit.
- Certain countries, such as the United States, prohibit the import of PCB contaminated materials to levels lower than 50 ppm.
- Although no specific concentration levels have been adopted yet, global discussions as part of the POPs negotiations, indicate a shift towards more stringent controls of wastes contaminated with lower levels of PCBs.
There are also concerns that PCB-contaminated electrical equipment may contain dioxins and furans as a result of arcing. Some commercial formulations of PCBs are also known to contain dioxins and furans. Therefore, even if a waste contains less than 50 ppm of PCBs, it is important to ensure that it is not hazardous by virtue of its dioxin and furan level. EIHWR controls wastes with more than 100 ng/kg of 2, 3, 7, 8-tetraclorodibenzo-p-dioxin equivalent.
Wastes containing lower concentrations of PCBs and without dioxin levels above the regulated limit are not considered to represent the same risk to the environment as higher levels. Therefore the controls for the wastes containing low levels of PCBs should not be as stringent as those above the 50 ppm level which define a hazardous waste.
Specific controls under consideration for these low-level PCB containing wastes include:
- ensuring that this waste is not exported where its import is prohibited by the country of import;
- ensuring that this waste is not imported where Canadian legislation prohibits its import;
- requiring exporters and importers to ensure that the receiving facility is authorized, as required by the importing jurisdiction, to receive and manage these wastes;
- requiring exporters and importers to be able to demonstrate through the results of analytical testing that the material is below 50 ppm PCB or the regulated limits for dioxin and furans; and
- putting onus on the exporter or importer to ensure that the shipment will be transported and managed in an environmentally sound management.
One means of implementing these controls would be to integrate some additional conditions for wastes containing low levels of PCBs into the new PCBWEIR. Any stakeholder input on other options that could meet the same environmental goals would evaluated as part of this initiative.
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