Posts

Ontario Environmental Protection Act and Regulatory Changes: More Brownfields Open for Business

Written by F.F. (Rick) Coburn and Barbora Grochalova, Borden Ladner Gervais LLP (“BLG“)

On May 2, 2019, the Government of Ontario introduced Bill 108, the More Homes, More Choice Act, 2019. Bill 108 makes several amendments to the Environmental Protection Act (EPA), such as enhancing the enforcement powers available to the Ministry of the Environment, Conservation and Parks (the Ministry), and broadening the scope of use of administrative monetary penalties.

The Ministry has also proposed amendments to the Records of Site Condition Regulation (O. Reg.153/04, Brownfields Regulation), with the stated purpose of enhancing the economic viability of brownfield projects by reducing delays, enhancing clarity, and providing certainty for redevelopment. The proposed regulatory amendments are provided on the Environmental Registry.

Brownfields and Redevelopment

Brownfields are properties that have become contaminated as a result of prior industrial or commercial use. Brownfield properties are often left vacant or underutilized, and may be located in areas where redevelopment would otherwise be desirable.

The Brownfields Regulation governs the process of redevelopment of contaminated properties and converting them into more sensitive types of use. Part XV.1 of the EPA only allows the change of use of a property from those that are potential sources of contamination to the types of use that are more sensitive (e.g., residential, agricultural, community, or institutional use) upon first completing and filing a Record of Site Condition (RSC). An RSC summarizes the environmental condition of the RSC property, describes any contaminants that are found to exceed the applicable standard, and reports any remediation measures that were done, including the removal of contaminated soil from the RSC property.

Proposed Exemptions to the Requirement to File a Record of Site Condition

The proposed regulatory amendments exempt certain redevelopment from the requirement to file an RSC.

  • Low-rise buildings changing from commercial or community use to a mixed use adding either residential and institutional use would be exempt, as long as the residential and institutional use is limited to floors above the ground floor. This exemption would only apply to properties that have never been in industrial use, or as a garage, a bulk liquid dispensing facility, a gas station or a dry cleaning operation, and if the building envelope will not be changed during the redevelopment.
  • Properties which are not otherwise included in the exemption described above may be exempt in situations where a part of a building is already in residential or institutional use and another part is used for commercial or community use, and the property is converted for a more sensitive use. This exemption would similarly be applicable only to properties that have never been in industrial use, or as a garage, a bulk liquid dispensing facility, a gas station or a dry cleaning operation, and the building envelope will not be changed during the redevelopment.
  • The definition of community use is proposed to be amended by removing from the definition temporary roads that are required only during the early phases of construction. The effect of this change is that an RSC would not be required once the temporary roads are converted to residential use when the buildout is completed.  
  • The conversion of indoor places of worship to residential use is also proposed to be exempt from the requirement to file an RSC.
  • Indoor cultivation of crops using hydroponics or other cultivation methods that do not rely on soil from the property is proposed to be defined as industrial use, as opposed to the more sensitive agricultural use, if the building was previously in industrial, commercial, or community use.

Additional Situations Deemed not to Exceed the Standard

The brownfields regime requires that if the RSC property is contaminated, the concentrations of each contaminant must be sampled and evaluated against the generic site condition standard. If certain contaminants exceed the applicable standard, the owner of the RSC property must either undertake further remediation, or prepare a risk assessment that provides a site-specific plan to address the risk posed by the exposure to those substances.

The Brownfields Regulation already included a provision by which exceedances resulting from the application of road salt or other de-icing substances were deemed to be within the standard. The deeming provision was previously restricted only to road salt use on a highway by the Ministry of Transportation and road authorities, but that restriction would be removed by the proposed amendments. Three new situations are proposed to be added where exceedances on any property are deemed to meet the standard:

  • Exceedances resulting from a discharge of treated drinking water;
  • Exceedances in fill material where a contaminant exceeds the applicable standard but does not exceed the naturally occurring concentration typically found in the area; and
  • Exceedances that arise from the deposit of excess soil onto the subject property, if the concentrations are in accordance with the standards established as part of the proposed On-Site and Excess Soil Management Regulation. (This proposed regulation would establish a comprehensive excess soil management regime, and will be discussed in more detail in a future update.)

Reduced Requirement to Delineate Contaminants

The Brownfields Regulation prescribes the requirements for phase one and phase two environmental site assessments. One of the elements required of a phase two study has previously been the full delineation, vertically and laterally, of contaminants which exceed the applicable site condition standards.

The proposed amendments introduce a “non-standard delineation”, which would not require the delineation of the full extent of a contaminant on the phase two property in situations where a risk assessment for that property has been accepted by the Ministry. The phase two study must instead show that appropriate steps have been taken to locate the maximum concentration of each contaminant found on the property, and that any additional efforts to delineate the contaminant are unlikely to contribute significant or meaningful information.

The proposed amendments to the Brownfields Regulation also introduce other technical changes to how phase one, phase two, risk assessment and other environmental studies are to be completed.

While the Brownfields Regulation are not part of Bill 108, these proposed amendments are an important piece in the larger landscape of changing environmental and land-use laws in Ontario. The majority of the amendments are proposed to come into force on the day the regulation will be filed. The proposed regulatory amendments are provided on the Ontario Environmental Registry.


About the Authors

Rick Coburn is a partner in the Toronto office of Borden Ladner Gervais LLP. Rick practises in the area of environmental law with an emphasis on environmental aspects of major development initiatives and transactions involving heavy industry, transportation, energy and infrastructure projects. With members of BLG’s litigation practice groups, he also acts as defence counsel on regulatory prosecutions and in civil actions.

Barbora Grochalova

Barbora Grochalova is an associate in the Environmental, Municipal, Expropriation and Regulatory Group in our Toronto office. Barbora is member of the Canadian and Ontario Bar Associations and acted as Counsel for the Canadian Environmental Law Association prior to joining BLG. She has had exposure to many different areas of law, with a focus on environmental, administrative, and regulatory matters before the Ontario Municipal Board (OMB) and the Environmental Review Tribunal (ERT).

Ontario Plans To Amend Excess Soil and Brownfields Regulation

Written by Paul Manning, Manning Environmental Law

Ontario is proposing changes to the excess soil management and brownfields redevelopment regime.

The changes are designed to “make it safer and easier for more excess soil to be reused locally…while continuing to ensure strong environmental protection” and to “clarify rules and remove unnecessary barriers to redevelopment and revitalization of historically contaminated lands…while protecting human health and the environment.

Opponents will see this as a deregulation which will primarily benefit business interests at the cost of environmental protection, notwithstanding these assurances.

Excess Soil

The changes will include the development of a new excess soil regulation supported by amendments to existing regulations including O. Reg. 347 and O. Reg. 153/04 made under the Environmental Protection Act supports key changes to excess soil management.

Proposed changes include:

  • clarifying that excess soil is not a waste if appropriately and directly reused;
  • development of flexible, risk-based reuse excess soil standards and soil characterization rules to provide greater clarity of environmental protection;
  • removal of waste-related approvals for low risk soil management activities;
  • improving safe and appropriate reuse of excess soil by requiring testing, tracking and registration of soil movements for larger and riskier generating and receiving sites;
  • flexibility for soil reuse through a Beneficial Reuse Assessment Tool to develop site specific standards;
  • landfill restrictions on deposit of clean soil (unless needed for cover).

Record of Site Condition

Under O. Reg. 153/04, a Record of Site Condition must be filed on the Ministry’s public registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland.

The Ministry is proposing amendments to O. Reg. 153/04 including reduced requirements to fully delineate contaminants (i.e. additional sampling) for properties going through the Risk Assessment process when contamination is already well understood.

The amendments would also provide flexibility on meeting standards where exceedances are caused by the use of a substance for safety under conditions of snow and ice, discharges of treated drinking water, and the presence of fill that matches local background levels.

Other proposed amendments would remove the requirement for a Record of Site Condition for specific low risk redevelopment situations, including converting:

  • Low-rise commercial buildings to mixed-use residential with commercial on main floor;
  • Temporary roads in construction areas to residential;
  • Indoor places of worship to residential; and
  • Industrial or commercial to indoor agriculture in or on the same building.

The proposal is posted for comment on the Environment Registry until May 31, 2019. To read the full proposal, click here.

This article has been republished with the permission of the author. It was first published here .

This article is provided only as a general guide and is not legal advice. If you do have any issue that requires legal advice please contact Manning Environmental Law.


About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

Time To Clean Up: Alberta’s Revamped Remediation Regulation

Written by Sean D. Parker and Stuart W. Chambers, McLennan Ross LLP

In 2018 the Government of Alberta overhauled the Remediation Certificate Regulation, made under the Alberta Environmental Protection and Enhancement Act (“EPEA”). Effective January 1, 2019, the newly titled “Remediation Regulation came into force.

The new Alberta regime for contaminated sites under the Remediation Regulation has two main parts:

1. Deadlines for completing remediation and submitting reports; and

2. Obtaining remediation certificates.

Deadlines for Remediating Contamination and Submitting Reports

One of the fundamental changes to the regulatory regime for contaminated sites is the imposition of a timeline for completing remediation, or submitting a remedial action plan that includes a deadline for clean-up. The obligations for remediation under the revamped regulation are grounded in the general clean-up provisions of EPEA section 112, which impose the duty to remediate a release that “may cause, is causing or has caused an adverse effect”. The Remediation Regulation at section 2.2 adds detail to that general obligation, by requiring a person responsible for a contaminated site to remediate this site “as soon as possible”. Alternatively, if remediation cannot be completed within two years, the person responsible shall “as soon as possible” submit a remedial action plan to the director of Alberta Environment and Parks (“AEP”) for approval. The remedial action plan shall include specified information such as the remedial methods to be used and the deadline for completion. In essence, this provision of the Remediation Regulation requires immediate clean-up, but if that is not feasible within the two-year period (i.e. two remediation seasons), then the obligation becomes a requirement to submit a remedial action plan for AEP’s approval.

The structure of this new regime is intended to provide the person responsible for a contaminated site the opportunity to clean-up the site within a two-year period and then submit all reports, such as a Phase II Environmental Site Assessment and remediation closure report, to AEP once the clean-up work is complete. That is seen to be a more streamlined process where AEP’s involvement is generally limited until the final review.

Alternatively, if the site “cannot be remediated to the satisfaction of the director within a two-year period” (section 2.2 (2)), then the person responsible must follow a different path that involves more oversight by AEP through the process. The first requirement is that the person responsible must submit a Phase II Environmental Site Assessment “as soon as possible” (section 2.2 (1)). The other requirement is that the person responsible must “immediately” submit a remedial action plan that specifies the completion time for the remediation (section 2.2 (2)). Essentially, if the remediation cannot be completed within two field seasons, AEP becomes involved earlier on in the process and has greater oversight over steps such as delineation work and planning of the remediation.

Although there is logic in this general approach – that AEP has more involvement on more complex sites – there is some uncertainty as to how this regime will actually be implemented. For example, it is not clear how the requirement to submit Phase II Environmental Site Assessment “as soon as possible” under section 2.2 (1) will be applied. Likewise, it is not clear how it will be determined that a site “cannot” be remediated within a two-year period, as provided for under section 2.2(2). Further, the remedial obligations are subject to discretion of the AEP director as to how those obligations will be enforced, for example, what information will be required, and timelines for completing a variety of steps. It is understandable and appropriate for a director to have discretion in contaminated site matters, as each site is different and will present its own unique circumstances. However, these obligations are very new and there are no precedents for their application, resulting in a lack of guidance which in turn generates uncertainty for those who may be responsible for a contaminated property. 

Another significant provision with respect to the remedial obligations is the grandfathering clause found in section 2.2(7). Essentially, the Remediation Regulation will only apply to sites reported to AEP on or after January 1, 2019. Sites that were previously reported, will not be subject to the new regime as it is presumed that they would already be engaged in a previous process for dealing with the site. However, as with other aspects of this new regime, the grandfathering clause is also subject to the discretion of the director. In other words, the new requirements for clean-up within two years, or submission of other reports and plans for completing the remediation work, may nevertheless be required by the director for a previously reported site. Again, while it may be appropriate for the director to impose those requirements for certain sites, it is unclear at this time on what basis the director will or should exercise discretion in this regard. 

Remediation Certificates and Tier 2 Compliance Letter

The second main part of the refurbished Remediation Regulation relates to the revamping of the regime for issuing remediation certificates, and a newly created Tier 2 compliance letter. Under the new regime, there are two types of remediation certificates available: (1) a “site-based” remediation certificate, and (2) a “limited” remediation certificate (section 4). The general concept of a remediation certificate is that it closes regulatory liability for the party that has obtained it. This means a party that obtains a remediation certificate will not be subject to future regulatory requirements from AEP in relation to the substances or areas covered under the remediation certificate. However, additional contamination discovered at a later date that is not covered under the remediation certificate will not enjoy this same protection and could be subject to further regulatory action. 

The site-based remediation certificate provides the highest degree of regulatory protection. This type of certificate applies to the entire area that has been impacted by the activity. Specific requirements for obtaining a remediation certificate are set out in section 4 of the Remediation Regulation. Essentially, a site-based remediation certificate can only be issued where all of the contamination has been identified and cleaned up on the site and on other affected surrounding lands. There is an exception where a site-based remediation certificate could be issued for the specified parcel of land and where contamination remains off-site, provided that the remaining off-site impacts are subject to a risk management plan that has been approved by the director. It is important to recognize that the off-site areas under a risk management plan would not be captured under the remediation certificate, and therefore would not enjoy the regulatory closure that those certificates provide pursuant to section 117 of the Environmental Protection and Enhancement Act

The other type of remediation certificate is called a “limited” remediation certificate. These certificates do not apply to the entire area impacted by the activity, as with a site-based remediation certificate, but rather apply to the limited area that has been remediated to the satisfaction of the AEP director. These limited remediation certificates appear to be more suitable for a discrete type of event such as a known release on a known part of the site. To obtain a limited remediation certificate, the area of impact would need to be assessed and fully remediated to the satisfaction of the director. The certificate would apply only to that limited area, and the contaminants of concern that were identified and remediated. This is a less rigorous process than for the site-based remediation certificate and therefore provides a more restricted degree of regulatory protection. Site-based remediation certificates provide regulatory closure for an entire parcel of land, however, they require full assessment of any impacts on that site and then complete remediation. A limited remediation certificate, on the other hand, would not require a full assessment of the entire site, but rather only of the specific area for which the certificate is sought, and likewise would only provide regulatory closure for that specific area that has been assessed and remediated. 

The third type of document provide for under the new Remediation Regulation is called a Tier 2 compliance letter. This document is intended to provide some level of assurance or comfort to parties that were not able to obtain either a site-based or limited remediation certificate. In order to obtain any form of remediation certificate, some remediation must have actually been completed. If no remediation is conducted, a remediation certificate cannot be issued. The Tier 2 compliance letter was developed to account for situations where the remediation guidelines can be adjusted based on site specific conditions under Alberta’s Tier 2 process, with the effect that human health and the environment are still protected, but no remediation would actually be required. 

While the Tier 2 compliance letter may appear to be a solution where a remediation certificate is not available, its practical value appears to be limited as it does not provide regulatory closure like a remediation certificate would. The Tier 2 compliance letter is solely a creation of the Remediation Regulation, and is not grounded in section 117 of the enabling statute, EPEA, which provides certain statutory guarantees. The effect of this distinction is that an area or site for which a remediation certificate has been issued is not subject to further regulatory action by AEP, for example, requiring further remediation if the guidelines change. Conversely, an area that is the subject of a Tier 2 compliance letter does enjoy the same protections and further regulatory action could be required at a later date, for example, further remediation if the guidelines do change. It is uncertain what the practical benefit of a Tier 2 compliance letter is given the apparently limited degree of protection that it affords.

Conclusions and Further Thoughts

The Remediation Regulation that came into force on January 1, 2019 sets out a revised regulatory regime that will be applied to contaminated sites in Alberta going forward. The new regime imposes additional requirements for assessment and reporting to AEP, as well as new timelines for doing so. However, given the significant discretion afforded to directors at AEP and the lack of precedents for how decisions will be made under this new regime, there is significant uncertainty as to how the Remediation Regulation will be applied, and how the directors’ discretion will be exercised over a variety of matters. Further, it appears that some of these new requirements will involve an enhanced degree of interaction with AEP in terms of reviewing site assessments, remedial action plans, risk assessments, risk management plans and other documents. It is unclear how AEP will handle this potential increased workload so as to ensure the new regime operates in an efficient and effective manner, rather than creating backlogs and other unintended consequences. 

The new site-based remediation certificate provides more comprehensive regulatory closure as compared to the limited remediation certificate. However, the higher degree of protection for the site-based certificate comes with greater assessment and remedial obligations. Depending on the unique circumstances of each site and intended purpose for obtaining a remediation certificate, consideration should be given as to what degree of regulatory closure is reasonably required balanced against the amount of work and cost associated with each type. Further, consideration should be given to the amount of time that may be required for processing of a remediation certificate application. Often, remediation certificates are sought to limit liability and facilitate some type of commercial transaction, such as the sale of land. However, the current timeline for obtaining a remediation certificate could be in excess of three years, which could wipe out any practical benefit depending on the commercial conditions of the transaction. In order to have an effective remediation certificate regime, the process will need to be reasonably responsive and operate on timelines that correspond to commercial realities. 

While the concept of a Tier 2 compliance letter appears to be sound and may be appropriate in certain circumstances, its practical utility is questionable given that the regulator could still come back at a future date and require a further action. To obtain the protections afforded by a remediation certificate, a proponent may consider conducting at least some remediation in order to be eligible for remediation certificate. However, the degree of remediation required in order to qualify for the remediation certificate program is an another currently open question. 

Overall, the Remediation Regulation sets out a new regime for managing contaminated sites in Alberta, building upon the existing remedial obligations embodied in section 112 of the Environmental Protection and Enhancement Act. Given the newness of this regime and the significant discretion afforded to AEP decision-makers, there is uncertainty as to how the regulation will actually be implemented.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Authors

Sean D. Parker is the Co-Chair of the Energy, Environmental & Regulatory Practice Group at McLennan Ross and is regularly engaged to provide legal advice on a variety of environmental management and engineering projects, and commercial transactions. Sean acts for a wide variety of clients including: landowners, large industry players, municipalities, government departments and administrative tribunals.

In his commercial litigation practice, Sean handles a variety of matters including contaminated site litigation, landlord-tenant disputes, property damage claims and others.

The time Sean spent in the environmental consulting field becoming a lawyer provides him with a valuable technical foundation to support his practice in environmental, regulatory and natural resource law.

Stuart Chambers is a partner at McLennan Ross practicing in the areas of energy, environmental & regulatory and commercial litigation, focusing on environmental and occupational health and safety regulatory law, and class actions.

Stuart has extensive experience advising oilsands and other industrial operators in relation to environmental and health and safety law issues, in particular in preparation for and responding to regulatory investigations and prosecutions.

Stuart has a wide range of experience in commercial litigation matters, including contractual disputes, recovery of funds and class actions.

While Stuart has extensive experience in complex multiparty litigation, he is equally comfortable in finding efficient solutions for smaller disputes. He utilizes alternative dispute resolution methods including mediation and arbitration to resolve issues and has significant experience acting as both plaintiff and defendant counsel in class actions in Alberta and in British Columbia.

Stuart advises organizations on contract interpretation, drafting and policy issues and has advised government and administrative tribunals on policy and adjudicative matters.

Canadian Federal Government Proposing New Regulations on Cross-border movement of Hazardous Waste

Environment Canada and Climate Change (ECCC), which is the Canadian equivalent of the U.S. Environmental Protection Agency, recently released draft regulations to control the cross-border movement of hazardous waste and hazardous recyclable material. The regulations, if eventually promulgated, would repeal and replace the Export and Import Regulations, the Interprovincial Movement Regulations, and the PCB Waste Export Regulations. Although the proposed Regulations would maintain the core permitting and movement tracking requirements of the former regulations, the regulatory provisions would be amended to ensure greater clarity and consistency of the regulatory requirements.

Electronic Tracking System

The proposed Regulations would provide flexibility for the electronic movement tracking system by no longer prescribing the specific form required for tracking shipments of hazardous waste and hazardous recyclable material. Instead, the proposed Regulations would require specific information to be included in a movement document (that can be generated electronically) and would allow movement document information to be passed on to different parties in parallel to facilitate the tracking rather than prescribing the handover of copies from one party to another.

Furthermore, given that movement documents would be able to be managed electronically, the proposed Regulations would no longer require that the movement document and permit physically accompany the shipment. The proposed Regulations would instead require parties to immediately produce the movement document and the permit upon request. Similar simplifications would be included in the provisions related to the movement document for interprovincial movements of hazardous waste and hazardous recyclable material.

The proposed Regulations would clarify the responsibility of a receiving (importing) facility to pass on information regarding the origin of the hazardous waste and hazardous recyclable material being transferred to a subsequent authorized facility for final disposal or recycling. As the safety of everyone is important and so is protecting the environment, it would make sense to find a contact for consultation if you need help with your company’s regulatory needs. Clarifications would also be made to the provisions for the return and rerouting of shipments to better align those requirements with current practice and ensure that confirmation of disposal from the alternative facility is also required in order to properly complete the tracking of those shipments.

Definitions of hazardous waste and hazardous recyclable material

With respect to interprovincial movements, under the proposed regulations, the definitions of hazardous waste and hazardous recyclable material would be aligned with those of international movements. In addition, proposed changes to those definitions would ensure a more consistent application of regulatory provisions for all types of transboundary movements and would better align definitions with other jurisdictions and international agreements. Some of these proposed changes are listed below.

Toxicity characteristic leaching procedure

The proposed Regulations would reference the toxicity characteristic leaching procedure (TCLP), in its entirety. This procedure is a standard test method used to evaluate the mobility of a number of contaminants that may be found in waste and recyclable material and, therefore, their potential for release. While making reference to the TCLP, the Export and Import Regulations exclude a step requiring that the size of particles in a sample be reduced to fit into the testing apparatus. In order to ensure that the method is used consistently, hazardous waste and hazardous recyclable material undergoing testing would need to be shredded to meet the TCLP’s specific particle size requirement.

Electrical and electronic equipment

Electrical and electronic equipment (EEE) is not currently listed as hazardous under the Export and Import Regulations and must meet other criteria to fall under the definitions of hazardous waste or hazardous recyclable material, which can be difficult to ascertain. The proposed Regulations would clearly designate “circuit boards and display devices and any equipment that contains them” as hazardous waste or hazardous recyclable material to be controlled when destined for specific disposal or recycling operations. The proposed Regulations would maintain the exclusion currently under the Export and Import Regulations for this type of hazardous waste and hazardous recyclable material moving within OECD countries (including moving between provinces and territories in Canada).

Mercury

The proposed Regulations would remove the small quantity exclusion for hazardous waste and hazardous recyclable material containing mercury. Any waste or material containing any amount of mercury that meets the definitions of hazardous waste or hazardous recyclable material would be subject to the regulatory provisions for both international and interprovincial movements.

Batteries

Batteries are not currently listed as hazardous under the Export and Import Regulations and must meet other criteria to fall under the definitions of hazardous waste or hazardous recyclable material. Some types of batteries are clearly covered by the definitions; however, for some other types it is not clear. The proposed Regulations would clarify that all types of batteries (i.e. rechargeable and non-rechargeable) being shipped internationally or interprovincially for disposal or recycling are included in the definitions of hazardous waste and hazardous recyclable material.

Terrapure Battery Recycling Facility

Waste and recyclable material generated on ships

The proposed Regulations would add a new exclusion to clarify that waste or recyclable material generated from the normal operations of a ship is not captured by the definitions of hazardous waste and hazardous recyclable material. This exclusion would further harmonize the proposed Regulations with the Basel Convention (which excludes this waste) and the Canada Shipping Act, 2001 where this waste is already covered.

Residual quantities

The proposed Regulations would add a new exclusion for waste or recyclable material that is to be transported in a container after the contents of that container have been removed to the maximum extent feasible and before the container is either refilled or cleaned of its residual content. This exclusion would clarify that such waste or recyclable material is not captured by the definitions of hazardous waste and hazardous recyclable material.

Recycling operation R14

Over the years, ECCC has received numerous questions regarding recycling operation R14 found in Schedule 2 of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations. Section 2 R14 reads as follows : “Recovery or regeneration of a substance or use or re-use of a recyclable material, other than by any of operations R1 to R10”. This recycling operation is not included in the Basel Convention or the OECD Decision. ECCC is proposing to delete this part of operation R14 to remove uncertainty about its application. This change may result in some recyclable material no longer being captured and defined as hazardous. For example, a used material that is to be used directly in another process that is not listed as a recycling operation would no longer be captured.
This change would further align regulatory provisions with international guidelines under the Basel Convention.


Exports, Imports and Transits of Hazardous Waste and Hazardous Recyclable Material 2003-2012

Proposed changes regarding waste containing PCBs

The regulatory provisions for the export of waste containing PCBs would be streamlined and integrated into those for hazardous waste and hazardous recyclable material. This would include removing the partial prohibition on exports of waste containing PCBs in a concentration equal to or greater than 50 mg/kg to allow controlled exports beyond the United States. Therefore, waste and recyclable material containing PCBs in a concentration equal to or greater than 50 mg/kg would be able to be exported provided a permit is obtained and all of the conditions of the proposed Regulations are met.

Proposed changes to improve the permitting process

The proposed Regulations would no longer require the name of the insurance company and the policy number for the exporter, the importer and carriers with the notification (i.e. permit application). In addition, copies of the contracts would no longer need to be provided with the notification. In both cases, the applicant would be required to provide a statement to the effect that valid insurance policies and contracts are in place and to keep proof of insurance coverage and copies of contracts at their place of business in Canada for five years.

The proposed Regulations would require a new notification for any changes in information, other than correcting clerical errors, on a permit.

The proposed Regulations would increase the maximum duration of a permit from 12 months to 3 years, consistent with international agreements, for the movement of hazardous recyclable material directed to pre-consented facilities within OECD countries.

The proposed Regulations would set out conditions under which a permit may be refused, suspended or revoked.

Impacts on Business – Costs and Operations

According to the consultation documents prepared by ECCC, the proposed Regulations, if promulgated, would affect 295 companies, 281 of which would be considered small businesses. For these small businesses, the proposed Regulations are expected to result in incremental compliance and administrative costs of $296,000 in average annualized costs, that is, $1,070 per small business.

If the proposed Regulations are implemented, it would result in an clarifications to the definitions of hazardous waste and would ensure a more consistent application of regulatory provisions. In addition, the proposed Regulations would help minimize environmental impacts outside Canada by ensuring that exported hazardous waste and hazardous recyclable material reach the intended disposal or recycling facilities. The present value of compliance and administrative costs of the proposed Regulations would be $2.5 million in 2017 Canadian dollars, discounted at 3% to 2018 over a 10-year period between 2021 and 2030.

The proposed Regulations would impose incremental administrative costs on industry attributable to the completion of additional movement documents for interprovincial movements of hazardous waste and hazardous recyclable material. Provincial and territorial authorities that are using a tracking system would achieve small savings if they decided not to request movement document information. The present value of administrative costs of the proposed Regulations are expected to be $460,000 in 2017 Canadian dollars, discounted at 3% to 2018, over a 10-year period between 2021 and 2030.

Public Consultation

Public comments to the proposed Regulations are being accepted by ECCC until up to mid-February. Any person may file with the Minister of the Environment comments with respect to the proposed Regulations or a notice of objection requesting that a board of review be established under section 333 of the Canadian Environmental Protection Act, 1999 and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent by mail to Nathalie Perron, Director, Waste Reduction and Management Division, Environmental Protection Branch, Department of the Environment, 351 Saint-Joseph Blvd., Gatineau, Quebec K1A 0H3 (fax: 819-938-4553; email: ec.mt-tm.ec@canada.ca).