Canada’s Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (the Export Regulations) defines and regulates wastes and recyclable materials which are deemed “Hazardous” under the Export Regulations.

Current Requirements Triggered by Environment Canada’s Standard

If triggered, there are a series of steps which the exporter must take to satisfy Environment Canada’s requirements to issue, and comply with, an export permit, such as:

  • verifications as to the material to be recycled/disposed of, the processes to be used and the existing permissions of the receiving facility to conduct such recycling/disposal;
  • contracts between the Canadian exporter and international importer;
  • insurance for the shipment;
  • pre-notification submissions, including circumstances requiring export of materials/wastes;
  • movement documentation; and
  • post-shipment permit compliance verification.

Exporters of materials/wastes which might be caught by the Export Regulations would properly apply Environment Canada’s tests for ‘hazardous” (along with “recyclable material” and “waste”) and determine their export obligations. If determined not “hazardous” in Canada, then their export can occur without an Environment Canada permit.

But What if Only the Importing Country Says They’re “Hazardous”?

In some circumstances, such as with certain kinds of used household materials, exported materials don’t’ meet Environment Canada’s definition of “hazardous”, but do in the importing country. Until recently, this meant that unregulated (under the Export Regulations) would have to be dealt with in the importing country (or third party country) as hazardous wastes/recyclable materials without all of the due diligence measures necessary to ensure the shipment is property (and compliantly) handled.

Canadian exporters (with the tacit approval of Environment Canada), have found themselves in limbo between the two countries – viewed as exporting undocumented hazardous material. A recent amendment to the Export Regulations addresses this problem.

Exporters – Know Their Law Before You Ship

The recent Regulations Amending the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations effectively imposes an obligation upon exporters of environmentally-unregulated wastes or recyclable materials to determine whether those materials might trigger “hazardous” material obligations in the importing country, as part of compliance with the Export Regulations. In other words, wilful blindness to the environmental regulations of the receiving country is an offence both in Canada and the receiving country.

Due diligence under the amendments now includes a pre-shipping determination of the scope of “hazardous” designations for wastes and recyclable materials in the receiving country before the shipment occurs. Otherwise, the exporter faces the double jeopardy of non-compliance with exporter and importer environmental laws.