PCB Waste Export Regulations, 1996

Statutory Authority

Canadian Environmental Protection Act

Sponsoring Department

Department of the Environment

REGULATORY IMPACT

ANALYSIS STATEMENT

Description

Polychlorinated biphenyls (PCBs) are very stable substances; they are resistant to chemical and physical degradation. They are also persistent and bioaccumulative in living organisms and are capable of penetrating the food chain. Consequently, PCBs have been listed in Schedule I of the Canadian Environmental Protecion Act (CEPA) as toxic. Furthermore, once released into the atmosphere, PCBs can travel extremely long distances. As a result, they are regularly found in the Great Lakes region and also in remote area such as the Arctic.

The manufacture and use, storage, transportation, treatment and destruction of PCBs have been regulated in Canada in 1977, 1985, 1990 and 1992 respectively. Since that time, federal and provincial governments have put in place regulations and pro grammes to have the PCB contaminated wastes collected and securely stored in Canada according to the Storage of PCB Material Regulations of 1992.

On becoming aware that the United States Environmental Protection Agency (US EPA) had granted a request for "enforcement discretion" to an American company to import PCBs from Canada to the United States for the purpose of disposal, the Minister of the Environment issued the PCB Waste Export Interim Order on November 20, 1995. This Interim Order prohibits any PCB wastes to be exported to the United States.

In 1996, the United States published a new Import Rule which prescribed new conditions that would govern importation of PCB wastes to the United States. Following an assessment of this import rule, the government has decided to allow Canadian PCB waste owners to export PCB wastes to the United States for treatment and destruction when these wastes are in concentration equal or greater than 50 parts per million. To implement this, the Department of the Environment proposes that the PCB Waste Export Regulations, 1996 to replace the Regulations Amending the PCB Waste Export Regulations (Interim Order).

It should be mentioned that American export of US PCB wastes is currently prohibited by US legislation.

In the context of environmentally sound management, the PCB Waste Export Regulations, 1996 allow exports of PCB wastes for treatment and destruction but not for landfilling. Landfilling does not destroy PCBs, consequently, the potential for future environmental contamination continues. In addition, landfilling requires maintenance and monitoring in perpetuity. If Canadian PCBs wastes are allowed to be landfilled in the United States, they could escape into the environment and, because of their capacity to volatilize and to be transported over long distances, they could affect health of Canadians and Canadian's environment as well as that of other countries. Furthermore, as a party to the Basel Convention, Canada is required to ensure that any exports of hazardous wastes, including PCB wastes, be disposed of in an environmentally sound manner. Since guidelines adopted by Parties of the Basel Convention do not consider landfilling of PCB wastes to be environmentally sound, Canada has an obligation to ensure that Canadian PCB wastes are not exported for landfilling in the United States

In the case of other management scenarios, exports from Canada to the United States will be allowed only if the Department of the Environment has the guarantee that: these wastes will be treated and destroyed in an efficient and environmentally sound manner; and, the US EPA has been informed and has accepted that these PCB wastes enter that country. Therefore, as mentioned in the news release by both Ministers, the Regulations will allow exports of Canadian PCB wastes and these wastes will be allowed only for treatment and destruction and thus ensuring that any ex port of Canadian PCB wastes will be managed in an environtally sound manner.

The Regulations will come into force on the date of its registration by the Clerk of the Privy Council for their publication in the Canada Gazette, Part II.

Alternatives

The first alternative to be assessed was the status quo which would not allow any exports of PCB wastes to the United States. This solution has been rejected because it prevents Canadian PCB waste holders from using American facilities which are located closer than Canadian facilities and which could treat and destroy PCB wastes in an environmentally sound manner at a more competitive cost.

Another alternative that has been assessed is the possibility to allow Canadian PCB wastes to be exported to the United States without any assurances as to how they will be disposed of. This alternative was rejected because Canada has to ensure, under the Basel Convention obligation, not to allow exports where PCB wastes would not be managed in an environmentally sound manner. In addition, such an alternative would be in contradiction of the Federal Toxic Substance Management Policy. Under this policy, substances that have been assessed to be persistent, bioaccumulative and toxic, should be managed in order to achieve their virtual elimination from the environment.

The PCB Waste Export Regulations, 1996 were the only alter native to achieve both objectives of allowing the export of PCB wastes to the United States and of ensuring these wastes will be disposed of in an environmentally sound manner. By doing so, these Regulations will contribute to minimizing risks to the environment and human health. These Regulations are being proposed consistent with the sustainable development approach which takes into consideration both environmental and economic variables. These Regulations provide Canadian PCB waste owners with the possibility to destroy these wastes more quickly and, therefore, contribute to improving the protection of the environment by reducing the possibility of having environmental incidents caused by having PCBs stored or transported over long distances. On the economic side, these Regulations minimize the cost to treat and dispose these wastes by maximizing the number of facilities capable of adequately disposing these wastes.

Benefits and Costs

Benefits

The PCB Waste Export Regulations, 1996 will increase the access by Canadian holders of PCB wastes to a larger number of facilities capable of destroying these wastes. Consequently, there will be improvement of the competitiveness in this field of activity and this will benefit directly any Canadian firms that have PCB stored for the purposes of disposing them in the future. The benefits resulting from these Regulations are, therefore, economic. It is estimated that based on the 1993 PCB waste inventory, the benefit or the total reduced cost resulting from these Regulations will amount to $56 million (in 1996 Canadian dollars) for all Canadian PCB owners. It should be noted that experts estimate that this inventory may have been reduced by approximately 30 percent. Under this assumption, this benefit will also be reduced by 30 percent and will, therefore, total $39 million (in 1996 Canadian dollars). This amount takes into consideration both transportation and disposal costs.

The Regulations will also benefit the Canadian population by minimizing potential risks of exposure to PCB wastes that are stored throughout the country. Even though the transportation of these wastes is not considered as a major risk when transported in accordance with strict safety requirements prescribed by the Transportation of Dangerous Goods Regulations, these Regulations will minimize the transportation distance since PCB wastes can be transported to the nearest environmentally sound facility even if this facility is located in the United States. Furthermore, by minimizing the cost of disposing of PCB wastes, the Regulations will also increase the rate of PCBs destruction, which will reduce the volume of stored PCBs and thus reduce any potential of incident related to storage of toxic material as well as any clean up costs.

Finally, these Regulations will benefit Canadian PCB waste owners since the Regulations will provide an opportunity for them to accelerate the destruction of their PCB wastes in appropriate disposal facilities and will thus reduce expenditures associated with continued storage

Costs to Affected Industries

By allowing Canadian PCB waste owners to use American facilities, these Regulations will contribute to a loss of businesses for Canadian treatment and destruction facilities as well as for businesses that are developing recycling technologies. However, this loss is lower than the above-mentioned $39 million (in 1996 Canadian dollars) because the transportation portion of these transactions will continue to be carried out by Canadian firms.

Based on the 1993 PCB waste inventory, the allowing of PCB wastes only for treatment and destruction and not for landfilling is estimated to cost Canadian PCB waste owners an additional $10 million (in 1996 Canadian dollars). As mentioned above, experts estimate that this inventory may have been reduced by 30 percent; under this assumption, this cost will, therefore, be reduced to $7 million (in 1996 Canadian dollars).

Costs to Government

Any incremental inspection costs will be offset by saving on costs associated with inspection of storage sites, and to a much lesser extent, costs associated with inspection of transports traveling long distances in Canada. However, an additional person-year will be required to cover additional regulatory requirements related to process export notifications to track shipments, to ensure that Canadian PCB wastes are transported and disposed of in an environmentally sound and efficient manner and to ensure that current international obligations are met. In the case that no additional resources are provided, realignment of resources will have to be conducted.

Consultation

Other federal departments have been consulted and were given the opportunity to provide the Department of the Environment with their comments. Provincial counterparts have been consulted through the Canadian Council of Ministers of the Environment (CCME). Affected industries have also been consulted on the issue of opening the border to exports of Canadian PCB wastes.

Compliance and Enforcement

The PCB Waste Export Regulations, 1996 will be proclaimed under the Canadian Environmental Protection Act and will be subject to its Enforcement and Compliance Policy. The policy, among other things, outlines measures to promote compliance including education and information promotion of technology development, and consultations on regulations development.

Enforcement will be carried out through compliance monitoring to verify compliance including provision of industry reports to the Department of the Environment, and through investigations of violations.

Responses to violations will be consistent with the criteria out lined in the Enforcement and Compliance Policy, i.e., the nature of the violation, effectiveness in achieving the desired result, and consistency in enforcement. Minor violations such as those for which the degree of harm or potential harm to the environment or human health is minimal could be dealt with by issuing warnings. More serious offences such as those having serious impact on human health or the environment could lead to prosecution.

Contacts

George Cornwall, Director, Hazardous Waste Branch, Pollution Prevention Directorate, Department of the Environment, Ottawa, Ontario KlA OH3, (819) 953-7293; or Arthur Sheffield, Chief, Regulatory and Economic Assessment Branch, Regulatory Affairs and Program Integration Directorate, Department of the Environment, Ottawa, Ontario KlA OH3, (819) 953-1172.

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 48(1) of the Canadian Environmental Protection Acta, that the Govemor in Council proposes, pursuant to sections 34b and 45C of that Act, to make the annexed PCB Waste Export Regulations, 1996.

Any person may, pursuant to subsection 48(2) of the Canadian Environmental Protection Act, file a notice of objection concerning the proposed Regulations with the Minister of the Environment within the 60 days after the date of publication of this notice, requesting that a board of review be established under section 89 of that Act and stating the reasons for the objection. All such notices of objection must cite the Canada Gazette, Part I, and the date of publication of this notice and be sent to the Department of the Environment, Ottawa, Ontario KlA 0H3.

October 1, 1996

MICHEL GARNEAU
Assistant Clerk of the Privy Council

PCB WASTE EXPORT REGULATIONS, 1996

INTERPRETATION

1. The definitions in this section apply in these Regulations. "Act" means the Canadian Environmental Protection Act. (Loi)

"authorized carrier" means

(a) in the case of a carrier that is required under the applicable laws to be the holder of a licence, permit, certificate or other written authorization to carry the type of PCB waste that is being exported, a carrier in respect of which such licence, permit, certificate or other written authorization has been issued by the competent governmental and international authorities; and

(b) in any other case, a carrier that is authorized under the applicable laws to carry the type of PCB waste that is being exported. (transporteur agréé)

a RS.,c.16(4thSupp.)

b S.C., 1992, c. 1,s. 144, Sch. VII., item 15

c S.C.,1992, c. 1,s. 37

"authorized facility" means a facility in respect of which a licence permit, certificate or other written authorization has been issued under the TSCA by the U.S. EPA for the disposal of PCB waste. (installation agréée)

"Chief" means the Chief of the Transboundary Movement Division, Hazardous Waste Branch, Department of the Environment. (chef)

"country of transit" means a country, excluding all airspace and marine areas outside the limits of its territorial sea, into which a PCB waste is being or is proposed to be imported and from which that PCB waste is being, or is proposed to be, subsequently exported without being disposed of. (pays de transit)

"disposal" means any operation, other than landfilling with PCB waste, that will destroy PCB waste, whether by dechlorination or by incineration or other thermal treatment, and includes any operation that will

(a) decontaminate PCB waste; and

(b) dispose of the residues from the decontamination of PCB waste. (élimination)

"electrical equipment" means any manufactured item, including any transformer or capacitor, that contains or is contaminated by a PCB liquid, PCB mixture or PCB solid. (équipement électrique)

"exporter" means any person who proposes to export or who exports a PCB waste from Canada; (exportateur)

"PCB" means any chlorobiphenyl referred to in column I of item 1 of the List of Toxic Substances in Schedule I to the Act. (BPC)

"PCB-contaminated soil" means any soil or other loose material contaminated by a PCB liquid, PCB mixture or PCB solid. (sols contenant des BPC)

"PCB equipment" means any equipment that contains or is contaminated by a PCB liquid, PCB mixture or PCB solid, but does not include electrical equipment. (matériel contenant des BPC)

"PCB liquid" means a liquid that contains 50 mg or more of PCBs per kilogram of the liquid. (liquide contenant des BPC)

"PCB mixture" means a mixture that contains 50 mg or more of PCBs per kilogram of the mixture. (composé contenant des BPC)

"PCB solid" means a solid that contains 50 mg or more of PCBs per kilogram of the solid. (solide contenant des BPC)

"PCB waste" means any PCB liquid, PCB solid, PCB mixture, PCB equipment, PCB-contaminated soil or electrical equipment, or any packaging or container that has held any of these, that is no longer being used in Canada. (déchets contenant des BPC)

"PCB waste notice" means the notice of the proposed export of PCB waste required to be given pursuant to subsection 43(3) of the Act. (préavis)

"TSCA" means the Act of the United States entitled the Toxic Substances Control Act, 40 CFR, ch. 1. (loi TSCA)

"U.S. EPA" means the United States Environmental Protection Agency. (U.S. EPA.)

APPLICATION

2. These Regulations apply where Canada is not a country of transit.

EXPORT

3. No person shall export PCB waste

(a) to a country other than the United States; and (b) for any purpose other than for disposal.

PCB WASTE NOTICE

4. A PCB waste notice shall be in the form set out in Schedule I.

5. A PCB waste notice shall have a reference number, provided by the Chief, that is unique to that notice.

6. A PCB waste notice shall provide

(a) the identification number, set out in column II of Schedule II, for the type of PCB waste set out in column I of the same item of that Schedule; and

(b) the identification number, set out in column II of Schedule m, for the type of disposal operation set out in column I of the same item of that Schedule.

7. A PCB waste notice shall be given to the Chief by hand de livery, registered mail or facsimile.

8. Where more than one export of PCB waste is proposed, an exporter shall give a separate PCB waste notice for each of the proposed exports, unless all of the PCB wastes in question

(a) have essentially the same physical and chemical characteristics;

(b) are to be shipped to the same authorized facility for disposal; and

(c) are to be shipped only through those customs offices that are specified in the PCB waste notice.

9. An exporter shall give a PCB waste notice within the 12 months before the export of the PCB waste.

CONDITIONS

10. An exporter may export PCB waste to the United States for disposal only if

(a) the export of that PCB waste is not prohibited under the laws of Canada:

(b) at the time the PCB waste notice is given, the United States has not notified the Chief that import of that PCB waste into the United States is prohibited;

(c) the Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste, which came into effect on November 8, 1986, in its form as amended on November 25, 1992, is in effect at the time of export;

(d) the exporter is a resident of Canada or, in the case of a corporation, has a place of business in Canada:

(e) the exporter is a person

(i) whose activity generated the PCB waste,

(ii) who is removing the PCB waste from a site that the per son owns or operates, for disposal,

(iii) who is acting on behalf of a government, or

(iv) who collects or receives PCB waste and then processes or bulks it for disposal;

(f) the PCB waste is being exported to an authorized facility;

(g) the exporter takes all practicable measures to ensure that the PCB waste will be transported and disposed of in a manner that protects the environment and human health from the adverse effects that could result from the transportation and disposal of that PCB waste:

(h) there is a signed, written contract or a series of such con tracts between the exporter and the person who imports the PCB waste into the United States or, where the exporter and the person who imports the PCB waste into the United States are the same legal entity doing business in both Canada and the United States, there is a signed, written arrangement between representatives of the entity in both countries;

(i) the contract, series of contracts or arrangement

(i) specifies the type of disposal operation and provides the identification number set out in column II of Schedule m for that type of disposal operation, as set out in column I of the same item of that Schedule,

(ii) includes a clause stating that the PCB waste is to be ex ported for disposal only,

(iii) includes a clause that requires the person who imports the PCB waste into the United States to submit to the Chief

(A) within the three days after the person accepts delivery of the PCB waste, a copy of the manifest referred to in paragraphs (p) to (s), duly completed and signed, and

(B) within the 30 days after the PCB waste is disposed of, written confirmation that it has been disposed of,

(iv) includes a clause that requires the person who imports the PCB waste into the United States, where delivery has been accepted by the authorized facility and the PCB waste cannot be disposed of in accordance with the terms of the contract, series of contracts or arrangement, to take all practicable measures to help the exporter fulfil the terms of the exporter's obligations under section 11, and

(v) includes a clause that identifies the facility in which the PCB waste will be temporarily stored, for a maximum period of 90 days, if it is not immediately accepted by the authorized facility identified in the PCB waste notice;

(J) each carrier named in the PCB waste notice is an authorized carrier;

(k) each facility named in the PCB waste notice is an author ized facility;

(l) the exporter and the carrier of the PCB waste, if other than Her Majesty in right of Canada or a province or Her agent, are insured for liability in accordance with section 12;

(m) the exporter receives from the person who imports the PCP waste from Canada a copy of

(i) the written authorization issued under the TSCA to that person by the U.S. EPA authorizing that person to import the PCB waste from Canada, and

(ii) the licence, permit, certificate or other written authorization issued under the TSCA by the U.S. EPA for the disposal of the PCB waste;

(n) the exporter annexes to the PCB waste notice the following documents:

(i) on request from the Chief, a copy of the authorizations referred to in subparagraphs (m)(i) and (ii),

(ii) a copy of the contract, series of contracts or arrangement referred to in paragraph (h), excluding any confidential financial information, and

(iii) a copy of the exporter's and the carrier's policy or certificate of insurance, with respect to the insurance referred to in section 12;

(o) the exporter receives written confirmation from the Chief that

(i) the Chief has been notified in writing by the U.S. EPA that it consents, in accordance with the laws of the United States with respect to giving that consent, to the proposed import of the PCB waste into the United States, or

(ii) the U.S. EPA has not, within the 45 days following its written acknowledgement of receipt of the PCB waste notice, made any objection to the import of the PCB waste;

(p) the exporter completes and signs Part A of a manifest, in Form 1 of Schedule IV to the Transportation of Dangerous Good's Regulations, and sends the manifest, in accordance with Part IV of those Regulations, as though the exporter were a consignor;

(q) the carrier completes, signs and dates Part B of the manifest in accordance with Part IV of the Transportation of Dangerous Good's Regulations, and the exporter ensures that Part C of the manifest will be completed, signed and sent in accordance with Part IV of those Regulations;

(r) the reference number of the PCB waste notice is on the manifest;

(s) the manifest, with copies of the PCB waste notice and the written confirmation referred to in paragraph (o) attached thereto, accompanies the PCB waste, and copies of the manifest and its attachments are deposited at the customs office at which the PCB waste is required to be reported under sec tion 95 of the Customs Act; and

(t) where the PCB waste is to be exported through a country of transit.

(i) at the time the PCB waste notice is given, the Chief has not received notice in writing from the country of transit that transit of that PCB waste through that country is prohibited, and

(ii) the exporter receives written confirmation from the Chief

(A) that the Chief has received notice in waiting from the authority in the country of transit who is legally competent to consent to the transitting through that country of PCB waste that the authority consents, in accordance with the laws of that country with respect to giving that consent, to the proposed transit, or

(B) that, in those cases in respect of which the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, signed on March 22, 1989, provides that export of the PCB waste may proceed if the country of transit has not responded within the 60 days after receiving notification of the pro posed transit of the PCB waste through it, the Chief has not received notice in writing from the authority in the country of transit who is legally competent to consent to the transitting through that country of PCB waste that the authority refuses to consent, in accordance with the laws of that country with respect to refusing that consent, to the proposed transit.

ALTERNATIVE ARRANGEMENTS

11. Where a PCB waste was exported but on account of some unforeseen event cannot be received or disposed of in accordance with the contract, series of contracts or arrangement referred to in paragraphs 10(h) and (i), the exporter shall immediately so notify the Chief and the U.S. EPA and shall make such arrangements as may be approved by the Chief and the U.S. EPA, for it to be both temporarily stored and disposed of within the 90 days after the date of delivery or within such longer period as the exporter, the Chief and the U.S. EPA may agree on.

LIABILITY INSURANCE

12. (1) Exporters and carriers of PCB waste shall have insurance in respect of

(a) any third-party damages for which the exporter or carrier is responsible; and

(b) any costs imposed by the applicable laws on the exporter or carrier for cleaning up the environment in respect of any PCB waste that is released into the environment.

(2) In the case of exporters, the amount of insurance in respect of each export of PCB waste shall be at least $5,000,000.

(3) In the case of carriers, the amount of insurance in respect of each shipment of PCB waste shall be the amount required by the laws of the country in which the PCB waste is carried.

(4) The insurance shall cover liability from the time PCB waste leaves the shipping site of the exporter to the time an authorized facility accepts delivery of the PCB waste for disposal.

REPEAL

13. The PCB Waste Export Regulations' are repealed.

COMING INTO FORCE

14. These Regulations come into force on the date on which they are registered.