Appendix B: Information Items

• B.1 Proposed Landfill Guideline
• B.2 Electronic Exchange of Information
• B.3 Liability and Compensation
• B.4 Basel Convention Ban Amendment

In 1991, the Canadian Council of Ministers of the Environment (CCME) published the "National Guidelines for the Landfilling of Hazardous Waste" to set out guidelines on the basic design, operating and performance standards to be used by federal and provincial/territorial regulatory agencies to minimize the risks posed by the landfilling of hazardous waste.

Concerns have been raised about the differences in landfilling requirements between Canada and the United States. Recently, the gap opened further when the US Environmental Protection Agency (EPA) implemented new land disposal restrictions under the Resource Conservation and Recovery Act by extending the ban on land disposal of certain substances. This new development in the US, together with the advantageous exchange rate of the Canadian dollar , enhanced the economic attractiveness of landfilling in Canada, resulting in increased US exports of hazardous waste destined for landfilling in Canada. To address these concerns, the CCME is revising the National Guidelines for the Landfilling of Hazardous Wastes. As part of this work, the CCME is reviewing the US land disposal prohibitions.

Under the current US system, hazardous wastes to be deposited in a landfill must be treated and/or processed to concentrations required to meet specified pre-treatment standards. Canada is considering incorporating similar requirements into the revised CCME Guidelines. The standards under consideration for these guidelines would be based upon the Universal Treatment Standards (UTS) that are constituent-specific treatment standards given in US EPA 40CFR 268.48. The objective would be to minimize the potential release of contaminants to the environment if the security of the landfill system is breached.

Currently, Alberta, Ontario and Quebec each has at least one commercial hazardous waste landfill. Alberta requires that hazardous waste from other jurisdictions be pre-treated to non-hazardous levels before disposal. Quebec's 2002 regulations on the landfilling of soil include pretreatment standards. The only commercial hazardous landfill operating in Ontario currently uses the natural clay formation to contain the hazardous waste and "natural attenuation" to mitigate the effects of the released leachate. All other hazardous waste landfills in Canada are designed using engineered liner and leachate collection systems.

The CCME is presently in the process of preparing a revised version of the current CCME Landfill Hazardous Waste Guidelines, including the three options under consideration (derived from rule, pretreatment standards and up-dated landfill design). Recommended changes will be based upon several background studies conducted within the last year including an impact analysis to evaluate the costs and benefits to the federal government provinces and territories resulting from the adoption of a derived from rule and pre-treatment standards of hazardous waste prior to disposal.

CCME plans to distribute a draft version of the new guidelines for public review and comment in the spring of 2003. It expects to publish the final version of the guidelines in the spring/summer of 2003

Environment Canada is committed to, and is making significant progress towards systems that will support the electronic exchange of information under the new EIHWR, the new Interprovincial Regulations and the new FHWR and PNHWR.

Initiatives underway include:

• The Transboundary Movement Branch (TMB) is in the process of upgrading the electronic notice systems based on feedback received from the five industry and four provincial participants in the Electronic Data Exchange (EDE) pilot project for web-based electronic permitting of import notices of hazardous wastes and hazardous recyclable materials.
• Following the upgrades to the e-Notice systems (early 2003) TMB will expand the e-Notice pilot. It is anticipated that a pilot project with the provinces will be developed in parallel. TMB has already developed the systems required to allow provinces access to electronic notice information.
• Based on consultation with the US EPA, Environment Canada has developed its portion of the Central Data Exchange system (CDX), which will be used to process electronic notice information between Canada and the US.
• Environment Canada is supporting the work by the Commission for Environmental Cooperation (CEC) to develop a North American Model for electronic tracking of hazardous wastes. Following the release of the final model (expected Spring 2003), it is anticipated that the US EPA will finalize its portion of the CDX.
• Environment Canada and the Canada Customs and Revenue Agency (CCRA) are examining mechanisms to allow for the electronic exchange of data between CCRA and involved parties.
• TMB continues to develop its electronic manifest systems, and has made the necessary modifications to the Canadian Notice and Manifest Tracking System (CNMTS) to facilitate this. Work continues to develop the web based e-Manifest application to allow an e-manifest to replicate the current paper based manifesting process, and to allow the Smart Card system to communicate with the e-Manifest.
• Smart Cards will provide Environment Canada with a means of securely identifying drivers and updating information contained on the shipping manifests, including the ability for drivers to sign the e-manifest digitally.
• TMB is also developing the systems to facilitate and deliver an electronic tracking document for the interprovincial movement of hazardous wastes to support the new Interprovincial Regulations.
• TMB will continue to work with the province of Ontario to ensure compatibility of the federal database with Ontario's Hazardous Waste Information Network (HWIN).The incorporation of the electronic systems developed to support the new FHWR is currently under way. It is anticipated that testing of these systems will commence in early 2003.

Currently, the EIHWR require Canadian exporters and importers of hazardous wastes and hazardous recyclable materials to carry insurance to cover the costs of environmental clean-up and third-party liability should an incident occur. The EIHWR require Canadian exporters and importers to be insured for environmental impairment liability to the amount of $5 million for all hazardous wastes destined for disposal and $5 million for those hazardous wastes destined for recycling that are considered to pose a significant risk to human health and the environment. Wastes under this regime are listed in Parts I and II of Schedule III of the Regulations and include all recycling outside of the OECD. Some hazardous recyclable materials (listed in Parts III & IV of Schedule III) shipped between Canada and OECD member countries require $1 million coverage.

In addition, provinces require carriers to carry insurance for the risks associated with property, personal and environmental impairment. The amounts required in each jurisdiction provide coverage for environmental clean-up and third-party liability for each shipment in the event of an incident involving hazardous waste or recyclable materials.

Although Environment Canada does not intend to change the insurance and liability and compensation provisions in the new regulations at this time, there are various issues it is reviewing for possible changes in the future. For example, Environment Canada continues to analyze the potential impact of acceding to the Basel Protocol on Liability and Compensation for Accidents Resulting From The Transboundary Movement of Hazardous Waste and Their Disposal. The Protocol is not yet in force, and Canada has yet to decide whether or not to accede to this agreement.

The objective of the Protocol is to provide for a comprehensive regime for liability as well as adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes, including incidents occurring because of illegal traffic in those wastes. The Protocol clarifies who is financially responsible in the event of an incident. It covers each phase of a transboundary movement, from the point at which the wastes are loaded on the means of transport to their export, international transit, import, and final disposal. The Protocol also sets out strict and fault-based liability, mandatory financial coverage and other provisions.

Analysis to date on the Basel Protocol has indicated that trade with the United States can be exempted from the specific requirements of the Protocol due to the prior existence of the Canada-US Agreement, an Article 11 agreement under the Basel Convention. Trade in recyclable materials between OECD countries would also be exempted due to the OECD Decision. Only trade that does not fall under either of these agreements (approximately 0.05% of Canada's total imports and exports) would be subject to the Protocol.

Future possibilities being considered for the EIHWR in the area of liability and compensation include:

• Providing a detailed definition of "damage" under the Regulations to clarify that the mandatory insurance requirement is for damage associated with the hazardous waste or hazardous recyclable material itself, not for accidents which involve no releases;
• Requiring environmental impairment insurance coverage to cover such damage, rather than allowing automobile and general liability policies as a basis for coverage;
• Developing mandatory insurance requirements based on the risk associated with the hazardous waste/hazardous recyclable material being shipped.

In addition, Environment Canada is in the process of analyzing the liability and compensation regimes for hazardous waste and hazardous recyclable materials currently in place to determine if any gaps exist. In cooperation with the provinces, EC will review the current liability requirements and compensation mechanisms, and will work towards the development of an enhanced regime to deal with any potential mismanagement of hazardous waste and hazardous recyclable materials.

It is anticipated that an enhanced national regime would cover the complete range of activities associated with hazardous waste management, from generation through storage, consolidation, transportation, processing/treatment and disposal/recycling, as well as the risks inherent therein (spills, leaks or other environmental emergencies, permitted releases, closure and post-closure). The objectives of an enhanced Canadian regime would be to ensure that the party responsible for an activity that results in damage pays the costs associated with its mismanagement, and to ensure that adequate and prompt compensation is available for persons who suffer damage.

Extensive stakeholder consultations and impact analysis will be required before any decisions are made, with respect to the development of an enhanced regime for liability and compensation or potential accession to the Basel Protocol.

Canada ratified the Basel Convention in August 1992. The Convention requires signatory countries to establish a regulatory regime based on prior informed consent for the transboundary movement and management of hazardous wastes and hazardous recyclable materials.

The third Conference of the Parties (COP III) to the Basel Convention held in September 1995 adopted an amendment banning the export of hazardous waste destined for disposal or recycling from OECD countries (Annex VII countries) to non-OECD countries (i.e., developing countries or countries with economies in transition). The ban is unidirectional in that it prohibits movements from OECD countries to non-OECD countries, but movements from non-OECD to OECD countries and among OECD countries would still be permitted. Given this, Canadian industry would still be able to import from both OECD and non-OECD countries.

The amendment will only come into force once 62 of the 83 Parties present at COP III ratify it, and once in force it would apply solely to those countries that have ratified it. Currently, of the 152 Parties to the Convention, only 32 have ratified the amendment (see www.unep.ch/basel/).

Canada has not ratified the ban amendment. Canada has indicated that it would support such a ban related to hazardous wastes destined for final disposal, and proposes to include such a ban in the regulations to replace the EIHWR. However, Canada has indicated that it does not support the provisions of the amendment concerning exports of hazardous waste destined for recycling operations. Canada has stated that it will not consider ratifying the ban amendment prior to further clarification of this issue. The Canadian government has also stated that it believes that the text of the ban amendment could be improved to promote environmentally sound recycling in all countries.

Environmentally sound recycling plays a vital role in waste management and in the appropriate use of natural resources. Once all efforts have been made to reduce the generation of wastes and to reuse the wastes as much as possible, in general the environmentally sound recycling of wastes is preferable to final disposal.

Canada has been and continues to be a strong supporter of the goals of the Basel Convention. At this time, Canada is of the view that Parties should concentrate their efforts on issues such as the universal ratification of the Basel Convention, implementation of the Basel Convention Ministerial Declaration on Environmentally Sound Management, the crucial issue of capacity building and increasing the role played by the Regional Centres for Training and Technology Transfer to assist this effort.

At the 6^th Conference of the Parties to the Convention, in December 2002, Parties agreed to complete the analysis of the impact of the ban (so called Annex VII study) before their next conference in 2004. They also adopted a ten-year Strategic Plan for the Implementation of the Convention and a mechanism for monitoring compliance with the Convention.