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.
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