THE NEW REGULATION RESPECTING HAZARDOUS MATERIALS
Bill 405, the Act to amend the Environment Quality Act (1991, S.Q. c. 80) ratified on December 18, 1991, came into force on December 1, 1997 (OrderinCouncil 130997, G.O.Q. October 22, 1997, II, p. 6609) nearly six years later. This act adds sections 70.1 to 70.18, pertaining to hazardous materials, to the Environment Quality Act ("E.Q.A."). It also amends certain E.Q.A. definitions by removing hazardous materials from "waste" and adding a new definition "hazardous materials" found in subsection 1(21) E.Q.A.:
"1(21) 'hazardous material': a material which, by reason of its properties, is a hazard to health or to the environment and which, within the meaning of a regulation under this Act, is explosive, gaseous, flammable, poisonous, radioactive, corrosive, oxidizing or leachable or is designated as a hazardous material, and any object classed by regulation as a hazardous material."
To enforce these new legislative provisions, on October 8, 1997, the Council of Ministers adopted the Regulation respecting hazardous materials and amending various regulatory provisions (the "Regulation") which also came into force on December 1, 1997, with the exception of section 44 (covering the storage of hazardous material outside a building) which will take effect on June 1, 1998 (OrderinCouncil 131097, G.O.Q. October 29, 1997, II, p. 6681). This Regulation replaces the Hazardous Waste Regulation.
Purpose of the Regulation
Pursuant to this longawaited reform, to be regulated a "hazardous material" no longer has to be necessarily considered as "waste". From now on, a hazardous material is regulated regardless of its origin or its position in the production cycle, whether raw material, manufactured products, recyclable residue, byproducts or waste. As for special waste, i.e., waste that is neither solid waste under the Regulation respecting Solid Waste or residual hazardous materials under the Regulation it will remain unregulated until the Regulation respecting Solid Waste is completely reformed.
The Regulation exercises control over all residue regardless of its future use, i.e., reuse, recycle or final elimination. The definitions of the Regulation are harmonized with Canadian and international regulations. In matters of transportation, it avoids the overlappings of different Quebec regulations. Lastly, administrative measures are greatly reduced.
Analysis of the Regulation
Chapter I: Scope and Definitions (Sections 1 to 7)
Section 3 of the Regulation defines the properties of hazardous materials, while section 4 lists equivalent materials and objects. Consequently, non excluded material having any of the properties defined in section 3 or material equivalent as hazardous material must be managed in accordance with the requirements of the Regulation. Section 2 of the Regulation lists the exclusions. Twenty (20) materials are excluded from the application of the Regulation. Among the most important:
Material from the construction, dismantling or renovation of an immovable or infrastructure as well as scrap metal and other metal objects, unless classed as hazardous material under section 4 of the Regulation, are also excluded.
Note that the definition of toxic material differs from the definition published in 1995 since the Regulation now uses the same definition as the one used in the Workplace Hazardous Materials Information System ("WHMIS"). While the limits are less stringent than those proposed in 1995, this choice in definition facilitates regulatory application, cuts laboratory analytical costs and takes into account the full life cycle of a toxic material. Moreover, reference to the Canadian Leach Test was replaced by a reference to the American Leach Test, the Toxicity Characteristic Leaching Procedure. This procedure is simpler, has already been adopted by Alberta and is recommended by the Canadian Council of Ministers of the Environment for federal regulation. This is an example of effective harmonization which, once the Canadian government adopts the TCLP, will avoid additional analytical costs and facilitate commercial exchanges between Quebec, the other Canadian provinces and the United States.
Section 4 lists material equivalent to hazardous material:
Section 5 of the Regulation contains some very interesting definitions. For instance, "residual hazardous materials" is defined as any hazardous material discarded, spent, used or outdated as well as any other hazardous material under section 6 of the Regulation. A "hazardous materials disposal site" is any site for the final disposal of hazardous material or any incineration site the main goal of which is to reduce hazardous material to ash or to a gas.
Section 6 of the Regulation establishes the list of residues and by-products which have to be listed in a register.
Chapter II: General (Sections 8 to 23)
Section 8 of the Regulation creating the general prohibition to discharge hazardous material not only into the environment but also into a sewage system reads as follows:
"No one may emit, deposit, discharge or release a hazardous material into the environment or into a sewage system, or allow the emission, deposit, discharge or release therein, unless the operation is made in accordance with the Environment Quality Act".
In the event of an accidental release of a hazardous material into the environment, section 9 of the Regulation requires that the following be done immediately:
These obligations do not apply if the accidental release is into a sewage system. The wording of sections 8 and 9 of the Regulation leads us to believe that the same applies to any other release which is not into the environment, i.e., inside a plant.
Dilution or Mixture
To prevent any circumvention of the application of the Regulation, hazardous material mixtures or dilutions will only be allowed if the materials obtained from such mixtures or dilutions are hazardous material (sec. 10).
Shipping of Residual Hazardous Materials
Under section 11 of the Regulation, residual hazardous material can only be shipped to an E.Q.A. authorized site. In this case, there must be a written contract between the consignor and the consignee. The contract must indicate the quantity of each category of material shipped and identify the category in accordance with Schedule 4 of the Regulation. However, a contract is not necessary where hazardous material is shipped to a storage site meeting the requirements of subsection 118 (4) of the Regulation (small site without PCBs or without material contaminated by PCBs, etc.). This will often be the case where residual hazardous materials are shipped to a transfer or recycling center. Where residual hazardous materials are shipped to a hazardous material disposal site, the consignor must entrust them to a carrier holding a permit under section 117 of the Regulation. This means that where residual hazardous material are shipped to a transfer center, this will be its duty to make sure that he is contracting with an authorized carrier (sec. 12).
Notice of Cessation of Activities or Dismantling
The person who carries on an activity in a sector listed in Schedule 3 of the Regulation (economic activities defined in the document entitled Classification des activités économiques du Québec (Classification of Quebec Economic Activities) published by the Quebec Bureau of Statistics in 1990) as well as the permit holder carrying on an activity under section 70.9 E.Q.A. must give the Minister of the Environment and Wildlife ("Minister") a 30day notice in the event of the cessation of activities or dismantling of any building housing hazardous materials (sec. 13).
Where activities cease, the buildings and equipment must be decontaminated or dismantled. Where there is dismantling, materials from the dismantling of buildings and equipment must be decontaminated or shipped to an authorized site. The Regulation does not specify what constitutes the decontamination of buildings and equipment. However, "building" has a more restricted meaning than an "immovable" in that the decontamination of soil, part of an immovable, would not be included in this process.
Under this heading, a transformer that can no longer be used must be drained of its liquid (sec. 16). Moreover, the operator of an industrial wastewater or process water treatment system must drain the basin of hazardous material deposits where such system has not been in operation for at least six months. The operator must undertake the necessary measures to prevent hazardous materials accumulated in the basin from reducing the efficiency of the treatment system (sec. 17).
Transportation of Residual Hazardous Materials
To transport residual hazardous materials, the consignor and the consignee must, for two years, at the shipping and reception site, keep a copy of the shipping manifest pursuant to the Transportation of Dangerous Substances Regulation (OrderinCouncil 67488, May 4, 1988) and provide this information at the Minister's request (sec. 21). Pursuant to the above regulation, where residual dangerous materials are to be reused and recycled and the destination site is located within the limits of the Province of Quebec, only a bill of lading is necessary. However, where the reuse or recycle destination site is located outside of the province, a federal transport manifest must be used. The same applies if residual hazardous materials are headed toward an elimination site whether inside or outside of the province. In this case, the carrier must hold a permit issued in accordance with the conditions of Chapter VIII of the Regulation (sec. 117).
Chapter III: The Uses of Residual Hazardous Materials for Energy Generation Purposes (Sections 24 to 29)
Except for the use of used oil for energy generation purposes, according to certain conditions under sections 26 and 27 and Schedule 6 of the Regulation, residual hazardous materials can only be used for energy generation purposes in an industrial establishment and only if they meet the standards provided for each parameter under Schedule 5 of the Regulation. In practice, Chapter III of the Regulation prohibits the use of used oil for energy generation purposes in fuel burning facilities of less than 3 MW except in isolated areas where this practice is allowed for convenience's sake. In the long run, used oil will only be used in equipment having an efficient fuel burning capacity. Moreover, the status quo applies for authorized industries until the equipment becomes unusable because of wear and tear. However, small installations producing used oil (garage, mechanical repair workshops, etc.) will no longer be able to use used oil for energy generation purposes.
Chapter IV: Storage of Residual Hazardous Materials (Sections 30 to 92)
This is the most important chapter of the Regulation. As its title indicates, it applies only to the storage of "residual hazardous materials", i.e., discarded, spent, used or outdated, as well as to byproducts under section 6 of the Regulation. Storage standards apply to residual hazardous materials that are stored by the person who produced or used them or by the person taking possession of them.
Certain residual hazardous materials are not covered by these storage standards (sec. 31).
These exceptions are:
Chapter IV does apply to liquids, solids or substances containing PCBs where the quantity of PCBs contained in all material is greater than 1 kg.
Exceptions to Some Storage Requirements
Some storage requirements (sec. 50 to 92) do not apply in the following cases:
However, these sections apply to liquids, solids or substances containing PCBs where the quantity of PCBs contained in all material is greater than 1 kg.
General Storage Conditions
Among the general storage conditions, note that any building used to store residual hazardous materials must be built so as to protect what is stored therein from any alteration caused by water, snow, frost or heat. The floor must be impermeable, not susceptible to attack by the stored material and able to support this material. Furthermore, the storage area must be laid out so that leakage or spillage can be contained (sec. 33). Clearly, the purpose of this section is to make sure that residual hazardous material does not come into contact with a component of the environment. Similar standards apply for shelters under which residual hazardous materials are stored (sec. 34). Storage areas must be laid out and maintained, must be in good condition and be accessible to emergency crews at all times (sec. 36).
Every drain located in a place where residual hazardous materials are stored must be tightly blocked off at all times to prevent the discharge of material or must be connected to a system which, as the case may be, will ensure the discharge of material into a system able to ensure their recovery (sec. 35).
Quarterly Inspection and Register
At least once every three months, the operator must inspect the good condition and good working order of storage equipment. For this purpose, the operator of an activity in a sector listed in Schedule 3 of the Regulation or the permit holder carrying on one of the activities under subsections 70.9 (1), (2) and (3) and the person who stores materials or objects containing PCBs or contaminated by PCBs must keep a register of the inspection results and keep it on the storage site for two years from the last entry (sec. 39).
Vessels and Receptacles
With few exceptions, residual hazardous materials must be stored in vessels (sec. 40).
So that incompatible residual hazardous materials that come into contact with one another do not cause hazardous physical or chemical reactions, receptacles of incompatible materials must be stored in separate storage areas or in separate cargo containers (sec. 41). Materials and objects containing PCBs or contaminated by PCBs must be grouped together and stored apart from other hazardous materials unless these materials and objects are placed in cargo containers (sec. 42).
No residual hazardous materials will be stored outside a building unless it is stored in a cargo container or under a shelter and in accordance with certain conditions under sections 44 and 45 of the Regulation.
Section 5 of the Regulation defines a "vessel" as any receptacle, cargo tank, tank or cargo container and "receptacle" as any packaging, metal box, drum or other container.
Tags and Signs
All receptacles, cargo tanks, tanks and cargo containers holding bulk material must display a tag, at a visible place, indicating the name of the material stored therein. This tag must bear the date on which the storage began. Where there is an underground tank, a sign identifying the material stored must be posted nearby. A building housing bulk material must have a sign identifying the material (sec. 46).
Sections 47 to 80 of the Regulation list the standards that apply to certain residual hazardous material storage, namely, storage in containers, tanks, heaps and cargo tanks. Following is a closer look at the specific requirements.
Cargo containers must be designed and manufactured for safe transportation and must be located above ground level to facilitate inspection (secs. 47 and 48).
A residual hazardous material storage tank cannot be installed under a building (sec. 50). A tank must be equipped with a safety device preventing the use of the pipes at times other than filling or draining periods (sec. 53). Aboveground tanks and pipes of every tank must be protected against corrosion (sec. 54). Aboveground tanks must be protected by barriers at places likely to be struck by vehicles and placed in an area having an impermeable catch basin. However, if the tank cannot contain more than 2,000 kilograms of material, there is no need for such a basin (sec. 56). Effective June 1, 1998, aboveground tanks having a capacity in excess of 20,000 liters must be equipped with an automatic continuous inventory device and spill prevention device (secs. 57 and 148 (1)).
Effective December 1, 2000, underground tanks and piping must have a double wall and be equipped with an interstitial automatic leak detection system, an automatic continuous inventory device and a spill prevention device (secs. 58 and 148(2)). Thus, every time a leak is suspected, the owner or operator will subject the underground tank or piping to a pressure test (sec. 59). For tanks installed after December 1, 1997, sections 60 and 61 of the Regulation list the manufacturing standards for underground tanks (subsec. 148 (3)). In addition, sections 62, 63 and 64 of the Regulation cover standards to protect against corrosion. The dates of removal from the ground of underground tanks not protected against corrosion are set out taking into account the age of the tank and the soil aggressiveness value (sec. 63 and Schedule 7). In addition, where there is a leak from an underground piping that is not protected against corrosion, the piping must be replaced (sec. 65). Other very specific standards also apply to underground tanks installed after December 1, 1997 (secs. 66 to 70 and 148 (3)).
An underground tank may be abandoned on its site where its removal would be impracticable because it would compromise the soundness of the structure of a building or of an element which is indispensable in terms of the building's intended use or where the machinery necessary to remove the tank cannot physically access the location. In this case, the abandoned tank must be decontaminated and filled with an inert material (sec. 71). The Regulation does not expand on the word "decontaminate". One thing is certain, the contents must be emptied. These provisions are based on almost identical ones in the Petroleum Products Regulation.
Heap Storage Area
Sections 72 to 76 of the Regulation cover the standards to store residual hazardous materials in heaps. Certain conditions apply to the storage of residual hazardous material in heaps outside of a building. The operator must set up a network of wells to monitor the quality of underground water, including one installed at the hydraulic upstream of the storage site and two others installed downstream. Every year, during periods of high and low water, the operator must ensure that the quality of the water of monitored wells is analyzed for contaminants present in the stored material. He will keep the results on the storage site for at least five years. As soon as the operator learns that groundwater has been contaminated, he must inform the Minister. Lastly, a sign indicating the name of the stored material must be posted near the heap storage area.
The Regulation stipulates that residual hazardous materials can only be stored in a cargo tank if it is fit for travelling, if it displays a placard in accordance with the Transport of Dangerous Substances Regulation and, except for tank cars, if it is registered (sec. 77). Tank cars do not have to be registered. A cargo tank must be loaded and unloaded in an impermeable area resistant to the material. The cargo tank storage area must be equipped with an impermeable basin unless it is equipped with a collection system capable of collecting leakage and spillage. Water accumulated in the loading or unloading area must be dumped into a treatment or discharge system in accordance with the E.Q.A. (sec. 78). Every cargo tank must be equipped with a safety device that prevents the use of pipes at times other than filling or draining periods (sec. 79). Lastly, any tank that is parked for more than 15 days must meet the standards that apply to aboveground tanks (sec. 80).
Protection of Storage Sites
Sections 81 to 92 of the Regulation set out the protection standards applicable to residual hazardous material sites.
Depending on its size, a storage site must be equipped with a system to protect against or detect intrusion (secs. 82 and 85). Absorbent substances must be kept near a liquid material storage site (sec. 83).
Any building storing material likely to emit a flammable gas must be equipped with an automatic gas detection device unless an alarm is automatically triggered when the ventilation system shuts down (sec. 84). In some cases, a fire detection system and an automatic fire extinguishing system suited to the type of hazardous materials stored must be in place (sec. 86).
Any building storing more than 20,000 kg of materials and objects containing PCBs or contaminated by PCBs and equipped with a mechanical ventilation device must be equipped with an emergency system that will stop the ventilation and close the air intake and air evacuation registers as soon as there is heat or smoke (sec. 87). Other requirements apply where liquids containing PCBs are stored (sec. 88).
These protection standards do not however apply to the following:
Chapter V: Final Disposal Sites (Sections 93 to 103)
Sections 93 to 103 of the Regulation regulate the requirements pertaining to the final disposal sites of hazardous materials. These sections do not apply to final disposal sites of radioactive materials which are covered under subsection 31 (1) of the Regulation or to final disposal sites and heap storage sites operating on December 1, 1997 (sec. 93). These sites must meet the Regulation's transitional provisions explained at the end of this text.
Under section 94 of the Regulation, certain hazardous materials or contaminated soils whose PCB concentration is greater than 50 mg per kilogram of soil or materials and objects containing PCBs or contaminated by PCBs cannot be buried.
The following hazardous materials cannot be placed in a final disposal site:
Layout and Shutdown Standards
The layout standards for final disposal sites are extremely demanding (secs. 95 to 102). The same applies to the shutdown of a final disposal site. When a disposal site's operations are ended once and for all, the operator must immediately send the Minister a notice confirming the shutdown date of the site. Within six months of the closure, he must submit very strict inspection formalities and send a complete report on the status of the shutdown to the Minister (sec. 103).
Chapter VI Register and Annual Management Report (sections 104 to 111)
Sections 70.6 and 70.7 E.Q.A. contain the obligation to keep a register of information with respect to hazardous material and the obligation to prepare and send an annual management report to the Minister. The person who must keep a register is not necessarily obliged to prepare and submit an annual management report.
Who Must Keep a Register?
Section 104 of the Regulation is to the effect that a register must be kept in the following cases:
The Regulation defines "manufactured product" as any material or object manufactured in accordance with a specific form or specifications within the framework of a production or processing activity, and whose use is wholly or partly determined by that form or those specifications.
Contents of the Register
The register must be kept on each site of production or use where the quantities prescribed by section 104 of the Regulation are found (sec. 105). It must contain the following information for each quarter with respect to each category of hazardous materials:
Holding of the Register
Information must be entered in the register no later than the 10th day following the end of each quarter (sec. 107). In practice, the first quarter begins on January 1, 1998. Information must be recorded in the register no later than the 10th day following the end of each quarter which means that the first entry in the register must be made no later than January 10, 1998 (sec. 107). Persons who are obliged to keep a register must enter the quantity of the hazardous materials in question stored on January 1, 1998 on the production, use or storage site (sec. 147). Information contained in the register must be kept at the production or use site for no less than two years from the end of each quarter (sec. 108).
The obligation to keep a register does not apply to the following:
Pursuant to section 109 of the Regulation, an annual management report for each category of hazardous materials in respect of which a register has been kept during a calendar year must be prepared. A calendar year extends from January 1st to December 31st.
Who Prepares the Management Report?
The annual management report must be prepared by:
Contents of the Management Report
The annual management report must contain the following information:
The annual management report for the previous calendar year is remitted to the Minister before April 1st. Consequently, the first annual management report covering the previous calendar year must be remitted no later than April 1, 1999.
Chapter VII: Storage Extension (sections 111 to 114)
According to section 70.8 E.Q.A., a person cannot have in his possession for more than 12 months hazardous material for which a register must be kept.
However, with respect to materials and objects containing PCBs or contaminated by PCBs whose concentration is greater than 10,000 mg per kilogram, this prohibition will only apply as of December 1, 2000. This later date of course reflects the fact that it is currently impossible to eliminate PCBs in Quebec, that no location exists in Canada where they can be eliminated at this time given the indefinite shutdown of the Swan Hills incinerator in Alberta and that further to a decision rendered by an American court, there is currently a moratorium on their export to the United States for elimination purposes.
Moreover, the Minister may authorize that the possession of hazardous materials be extended in accordance with certain formalities. Section 113 of the Regulation notes that the authorization application to extend the storage period of a hazardous material must contain the following information:
Section 114 of the Regulation stipulates that the management plan submitted together with the application for extension must contain the following information:
Chapter VIII: Specialized Activities Entailing the Obligation to Hold a Permit (sections 115 to 118)
Who Must Hold a Permit?
Pursuant to section 70.9 E.Q.A., specialized operators must hold a permit issued by the MEW. The specialized operator is the person who:
For the first four categories of specialized operators, the obligation to hold a permit does not apply with respect to the following activities (sec. 118):
Notice to the Minister
However, where the quantity stored is between 1,000 and 40,000 kg, the person storing the material must as soon as possible send a notice to the Minister containing the following information:
The application for a permit must contain the information set out in section 119 of the Regulation. The permit system under the Regulation replaces the certificate of compliance and the operating permit as well as the certificate of authorization under section 22 E.Q.A. which were necessary under the old Hazardous Waste Regulation (see Transitional Provisions at the end).
When applying for a permit, in addition to providing certain information set out for the specialized operator, the person transporting residual hazardous materials to a disposal site must provide the following documents:
Civil Liability Insurance
A permit will be issued provided the applicant has civil liability insurance in an amount determined in Schedule 11 of the Regulation (between $1,000,000 and $3,000,000), except in the case of a permit to use used oil for energy generation purposes where the nominal capacity is less than one metric ton or one kilolitre per hour. The applicant of a transportation permit must have civil liability insurance of $1,000,000.
The holder of a permit must keep his liability insurance policy in force for the duration of the permit validity period.
An application for renewal of a permit must be submitted to the Minister between the 120th and 60th day preceding its expiry date.
Section 126 of the Regulation sets out the fees payable for the issue, amendment or renewal of a permit.
Register and Annual Report of the Permit Holder
Sections 130 to 138 of the Regulation set out the obligations for specialized operators holding permits to keep a register and table an annual report. In this case as well, the management report covering the previous calendar year is sent to the Minister no later than April 1st. Here also, the first filing must be April 1 , 1999 (sec. 147).
Chapter IX: Penal Provisions (sections 139 to 143)
Sections 139 to 143 of the Regulation set out the penal sanctions. Fines and imprisonment are in proportion to the offences.
Among these sanctions, note, on one hand, that any offence against section 8 of the Regulation which prohibits the emission, deposit, discharge or release of a hazardous material into the environment or into a sewage system or allows the emission, deposit, discharge or release therein, renders the offender liable to a fine of:
In the event of a subsequent or repeat offence by a natural person, the fine is doubled. In the event of a subsequent or repeat offence by a legal person, the fine is $50,000 to $1,200,000 in the event of an additional offence, from $550,000 to $1,500,000. The offender is liable, in addition to the fine, to imprisonment of a maximum of 18 months (sec. 142).
On the other hand, any offence against section 9 of the Regulation which imposes the obligation, where hazardous material is accidentally released into the environment, to immediately inform the Minister, to stop the spill and recover the hazardous material and remove any contaminated matter which is not cleaned or processed on site, renders the offender liable to a fine:
In the case of a subsequent or repeat offence, the recommended fines are doubled (secs. 141 and 143).
Chapter X: Amending and Transitional Provisions (sections 144 to 160)
Leap Storage Sites and Final Disposal Sites
Where there is no environmental contamination, transitional provisions permit the operation of a heap storage site and final disposal site active on December 1, 1997 or which are shut down before this date, but after October 15, 1985. For these cases, within one year following the effective date of the Regulation, a characterization study of the soil and underground water situated in periphery of such sites must be carried out (sec. 144) according to the Guide Standard de caractérisation de terrains contaminés (1988). Where the characterization study shows that the level of contamination is not an unacceptable health or environmental risk, the operator must, within 180 days of forwarding the study to the Minister, request an extension of storage or permit in respect of the carrying on of the disposal activity by final disposal (sec. 145). In practice, the application for storage extension or to obtain a permit, as the case may be, must be made no later than June 1, 1998.
Where the characterization study shows a level of contamination causing or likely to cause damage to the environment or a hazard to health, the operator must:
No standard method of risk analysis has been adopted by the MEW for the purpose of this section.
Existing Underground Tank
The owners or operators of underground tanks already installed on December 1, 1997, must provide the Minister, no later than February 1, 1998, with a statement containing the following information:
This registration system will enable the MEW to ensure the application of transitional measures and control the removal of non-conforming tanks on the dates set out in section 63 of the Regulation.
Permits and Certificate of Authorization
In addition to replacing the Hazardous Waste Regulation, the Regulation amends various regulations under the E.Q.A. Among the most important:
However, pursuant to section 149 of the Regulation, the following activities are excluded from the application of section 22 E.Q.A.:
Those who thought that the Regulation would be easier to understand and administer than the former Hazardous Waste Regulation could not have been more wrong. However, the work by environmental authorities in this regulatory reform must be commended. Administrative requirements have been reduced to the minimum, especially, where the reuse or recycling of residual hazardous material is involved. This avenue rather than final elimination is encouraged. Moreover, regulation intended to manage hazardous material in all aspects of the life cycle must necessarily include various degrees of obligations to afford optimal management of the related risks.