Over the past several years, the Ontario government has taken steps to increase restrictions and improve the management of hazardous waste in the province. The general thrust of efforts has been to harmonize practices with those found south of the border. While the Ontario environment ministry would like to believe that it is a leader in this area, it is actually following a trend shared with other provinces. (See this column, “Alberta’s New Landfill Guide,” in the December/January edition.)
Changes made over the past several years in Ontario include:
the implementation of toxicity characteristic leaching procedures (TCLP);
the introduction of a “derived-from” rule that states that material that is not hazardous waste but includes materials that once would have been considered hazardous is still considered hazardous;
the updating of Ontario’s list of hazardous wastes so as to be compatible with those in the U.S.; and,
giving legal force to the ministry’s generator registration manual.
Notwithstanding these changes, Ontario has continued to be a popular destination for hazardous wastes from the U.S. Moreover, practices such as land-farming which have long been banned in the U.S., continue in Ontario. As such, statements that Ontario is becoming a leader in the management of hazardous waste need to be taken with a large grain of salt. That said, Environment Minister Elizabeth Witmer’s recent announcements constitute a significant step toward closing the gap between the Ontario and U.S. approaches.
Recent changes include: a pre-treatment standard for hazardous waste, a PCB destruction program, harmonization of the provincial and federal PCB waste definitions, a phase-out of hospital incinerators and certain waste management activities (i.e., deep-well disposal), a new biomedical waste definition, an annual registration regime and cost-recovery mechanism, and phase out of land-farming.
While the destruction of PCBs and the initiatives related to biomedical waste in hospital incinerators are of interest, it is likely that there will be greater impact on generators, carriers and receivers of hazardous waste from the new pre-treatment standards and the phase-out of deep-well disposal and land-farming.
Land disposal restrictions
Pre-treatment Requirements for Hazardous Waste Prior to Land Disposal, commonly referred to as land disposal restrictions, will create an obligation to treat hazardous wastes prior to either landfilling or land-farming.
These standards are based on either meeting a specified contaminant concentration level or by a specific process such as incineration or physical/chemical treatment. While hazardous waste generators and those responsible for disposing hazardous wastes on land will experience increased costs, opportunities will be created for those with new technologies that satisfy the pre-treatment requirements in a cost-effective manner.
Companies like Petrozyme Technologies Inc. of Kitchener, Ontario could stand to benefit from these changes. Petrozyme has developed and currently markets a technology for a bioreactor generally for use at hazardous waste generator facilities that significantly reduces the volume of waste that leaves the site. The process also changes the characteristics of hazardous wastes, making them more benign.
The environment ministry intends to adopt various U.S. EPA standards to introduce the pre-treatment requirements. This will have the dual effect of harmonizing the regulatory regime with that of the U.S. while not requiring a reinvention.
Also notable is the likely interim step of requiring imported hazardous waste destined for disposal in Ontario to meet any pre-treatment standards that are applicable within jurisdiction from which they originate. This would make all hazardous waste originating from the U.S. subject to U.S. EPA pre-treatment standards in order to be disposed in Ontario.
The incentive to reduce the amount of hazardous waste generated in Ontario hasn’t been particularly strong to date given the availability of inexpensive treatment processes such as land-farming. With the introduction of a land ban, waste generators will have to seriously consider economics. This may result in some reduction in the amount of hazardous waste generated in the province and a rethinking of how to best and most economically dispose waste.
Implications for industry
While the introduction of land disposal restrictions may reduce the amount of U.S. hazardous waste in Canadian landfills, the removal of a land-farming option may well compensate somewhat for this as the previously land-farmed waste stream will have to be dealt with in other ways.
While it’s difficult to measure the actual impact of the proposed new standards and restrictions it’s likely that there will be some reorganization of the hazardous waste industry as waste streams are altered. One significant issue remains unchanged: U.S. generators have a significant reason — beyond a favourable exchange rate — to continue to dispose of waste in Ontario, and for that matter anywhere else in Canada. The fact is there is still no Canadian regulatory mechanism that approaches the impact of the U.S. Superfund legislation.
No matter how benign or dangerous a hazardous waste is, when it crosses the border into Canada the U.S. generator can wash its hands of most future liability. The same is not the case if the same material is disposed of in the U.S. For this reason, in the absence of legislation similar to the impact of Superfund legislation, hazardous waste disposal facilities will continue to enjoy a market advantage north of the border.
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.