Over the past several years, the possibility of significant restrictions on transboundary waste shipments has been discussed but never very seriously. However, the aftermath of the September 11 terrorist attacks on the United States has brought attention to cross-border issues in a number of areas, including waste management.
As discussed in this column in the October/November 2000 and June/July 2001 editions, there are a number of indicators of a movement towards possible restriction of waste movement over the border. Various activities undertaken by the Canadian and U.S. federal and state governments point towards the possibility of increased regulation. Until recently, the likelihood of the U.S. Congress allowing states to restrict cross-border shipments of waste seemed remote. Now, however, Congress appears more willing to consider such restrictions in the face of increased waste shipments across state lines both from Canada, Mexico and within the U.S.
Although it is impossible to know what the impact of the recent events in New York and Washington will mean, the political environment in the U.S. is not likely to be less protective. In fact, there are those that argue that such an impending threat to the U.S. will cause a significant turn towards isolationist/protectionist policies. It is quite conceivable that this could be the catalyst that is needed for those advocating a move towards federal regulation of waste movement restrictions in order to press their point home.
While the advent of a more isolationist/protectionist political environment has not yet arrived, the immediate impact of terrorist activities upon either side of the border must be considered as a reality for the foreseeable future. Whether or not Congress decides to pass legislation with respect to waste shipments, even the possibility of terrorist activities raises the specter of border restrictions and at times (as we saw on September 11) border closings.
The most obvious implication of the situation is that waste haulers may now need to prepare contingency plans should such a situation arise again. In addition, political leaders will have to view this as a partial indicator of what could happen should the U.S. border close either for political or national security reasons. While the closings may not occur as suddenly they did recently, the implications of such closings are very serious, especially in jurisdictions such as Ontario where about two million tonnes of waste are exported per year.
Almost immediately following the attacks on the World Trade Center and the Pentagon, waste and other commercial traffic was stopped in its tracks at the U.S. border. This caused significant backlogs of private and commercial traffic from B.C. to the Maritimes. In Ontario, the Director of the Environmental Assessment and Approvals Branch of the Ontario Ministry of the Environment responded, through the Ontario Waste Management Association (OWMA), issuing emergency provisions for waste stopped at the U.S./Canada border. For non-hazardous waste at least, the service area requirements of Certificates of Approval for landfill sites in close proximity to the border were “relaxed.” The ministry directed carriers of hazardous waste to specific facilities and carriers were encouraged to return waste to safe storage areas and to maximize storage capacity until the border situation was resolved.
While the primary issue that precipitated the emergency provisions was the actual closure of the border, the continued delays of commercial traffic across the border lasted for several days with traffic waiting anywhere between two and 20 hours in the days immediately following the attacks.
Notwithstanding the ongoing delays in border crossings, the Ontario environment ministry, realizing that the borders were “open,” rescinded the emergency order on the morning of September 12. Again, through the OWMA, the ministry announced that in extreme circumstances local district offices would work out solutions with particular waste management companies.
For some industry participants, the border closing did not pose an immediate threat to their ability to carry on business. In the case of the City of Toronto, waste was diverted from Michigan to the Keele Valley landfill (due to close at the end of 2002). Other participants in the waste management industry were not so lucky and faced significant delays in their transboundary traffic.
Following its rescission of emergency orders, the ministry continued to monitor the situation and on the morning of September 17 issued further clarification. The ministry acknowledged that it expected that waste haulers were temporarily unable to cross or were experiencing extreme delays. While the ministry stated its expectation that those affected would develop and implement their own contingency plans to deal with the situation, it allowed that there could be extenuating circumstances that required further consideration.
It was at this time that the government of Ontario moved to a case-by-case analysis of instances where owners or operators of waste management systems required alterations of their Certificates of Approval. In particular, the ministry requested anyone in such a situation provide detailed contingency plan of how they plan to manage the situation. The details of the contingency plans are required to be produced along with a number of essential elements, including: the rationale for why emergency approval is required, the quantity of waste, duration of contingency measures, the manner in which the waste will be managed in Ontario, and other information.
At press time, the wait for commercial vehicles at Ontario border-crossings with U.S. was down to approximately one hour in most cases.
Written by Adam Chamberlain, LL.B. of Power Budd, the Canadian affiliate of Cameron McKenna, an international law and consulting firm. Mr. Chamberlain is based in Toronto, Ontario.