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Published in Spring 2002
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Borderline hazards
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Controlling the toxic waste trade
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By John Whalen
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It sounded like a TV spoof: a slick company brochure beckoning American polluters into Canada. Send us your contaminated soil, the Canadian waste firm urged US businesses, and leave the worrying to us. Not only did the firm offer to cheaply bury dirt tainted with heavy metals, pesticides, solvents, and sludge in its Quebec landfill, but it promised to bury its clients’ legal exposure as well. Once customers shipped their dirt across the border, the company vowed to take ownership and assume “full responsibility and all liability.”
The sales pitch, made public in a Toronto Globe and Mail article last summer, was no joke. Nor, to the surprise of many Canadians, was it illegal. Throughout the 1990s, both Quebec and Ontario had gradually been loosening provincial waste regulations to help their local businesses compete in an expanding marketplace. At the same time, deep cuts in the environment budgets of the two provinces, and at the federal level, had made it tough to enforce existing rules. The result was predictable. More waste facilities, with lower standards and less government oversight—just when hazardous waste regulations in the US were growing more restrictive.
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| Courtesy of Environment Canada |
On top of that, whereas the US had long imposed cradle-to-grave liability on the generators of toxic waste—you create it, and you’re responsible for eternity—Canada had no equivalent law. The lure of Canadian dumpsites was almost irresistible south of the border. No expensive pre-treatment or disposal standards, no risk of prosecution by the Environmental Protection Agency at home.
But the free ride may soon be over for American businesses. Just days after the cross-border dumping stories made headlines, Quebec announced new regulations designed to block further toxic imports. “The trucks that leave from the United States, that come to Quebec to dump their contaminated soil, that’s over,” Quebec Environment Minister André Boisclair announced last June, in presenting the new rules. Effective that summer, Quebec began banning open-pit dumping of untreated soil containing explosives, radioactive material, PCBs, and other chemicals.
A few months later, Ontario’s Ministry of the Environment followed up with its own plan, which included draft provisions to set requirements for biomedical wastes and to destroy 99,000 tonnes of PCBs being stored in Ontario. Another proposal would impose pre-treatment standards similar to the US, prohibiting untreated hazardous waste from being landfilled. That proposal is expected in draft form this summer; the earlier provisions are currently being reviewed for public comment.
For years, environmental groups had been denouncing the regulatory imbalance that encouraged so-called pollution havens to develop in Canada. Given the country’s regulatory structure, however, this has not been easy to rectify. Unlike in the US, where the EPA has jurisdiction over all hazardous waste matters throughout the country, Environment Canada is confined to monitoring the transit of waste across international and provincial borders. Treatment and disposal are administered and enforced by the individual provinces. Consequently, there are few national standards—and persuading regions with different economic bases and agendas to adopt common environmental regulations is a major challenge.
Only recently has a critical mass begun to form around the issue—thanks in large part to the efforts of Canada’s federal Minister of the Environment, David Anderson; environmental groups; and the CEC. At Anderson’s behest, the CEC recently began a project to develop a cooperative approach to sound management of toxic waste throughout North America. A task force of federal regulators from all three countries will work on recommendations for harmonizing their countries’ policies, rules, and enforcement. A key focus area will be the transborder shipment, tracking, and disposal of hazardous waste, according to Ignacio González, manager of the CEC’s Law and Policy program.
“This is an important project that addresses major shortcomings in our ability to control waste shipments,” says González. “Right now, the paper trail essentially stops at the border of each country.”
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| Courtesy of Environment Canada |
Ever since NAFTA was enacted in 1994, environmentalists have been concerned that it could facilitate cross-border dumping of toxic materials. But the hard data wasn’t pulled together and examined until the CEC published “Tracking and Enforcement of Hazardous Waste Shipments in North America” in 1999. The report concluded that all three NAFTA countries lacked adequate systems to police the movement of hazardous waste. There were definition problems—what qualified as hazardous in one country was not regulated in another. There were compatibility problems—manifests didn’t correspond to one another and the various tracking systems didn’t communicate. And there were enforcement problems—concerns, policies, and response time varied from country to country. Tracking a shipment from cradle to grave across borders was virtually impossible.
To begin sorting through the issues, in early 2000 the CEC offered a grant to outside researchers who would examine how free trade specifically affects the disposal of hazardous waste throughout the continent. Representatives from three environmental groups—the Texas Center for Policy Studies, the Canadian Institute for Environmental Law and Policy, and La Neta: Proyecto Emisiones—prepared a joint report that they presented at the CEC’s North American Symposium on Understanding the Linkages Between Trade and Environment, in October 2000. Their findings were disturbing:
- Exports of hazardous waste from the United States to Canada grew by nearly 400 percent between 1994 and 1999, with Quebec and Ontario receiving the bulk of it. In 1999, Quebec disposed of more than 333,000 tonnes of American toxic waste and Ontario more than 325,000 tonnes.
- The largest jump in American waste exports to Canada occurred in 1994, the year that the US adopted tough new laws for treatment and disposal. In that year alone, Ontario’s share of US toxic waste surged by 414 percent.
- Although US exports of contaminated waste to also rose during the period, the increases were less dramatic, most likely due to Mexico’s ban on the import of hazardous waste for storage or final disposal. (That numbers rose at all is attributed to exceptions and compliance issues.)
The report concluded that, contrary to popular belief, it wasn’t the sinking Canadian dollar that caused such a spike in US waste shipments, but rather the regulatory imbalance between the two countries. Trade liberalization seemed to have had a paradoxical effect: while NAFTA might have inspired stricter regulations in Mexico—responding to fears about becoming the North American dumping ground—in Canada the treaty had apparently encouraged less regulation, as a way to gain an economic edge. The researchers claimed that this was particularly true in Ontario, where the provincial government’s “Common Sense Revolution” ushered through a series of business-friendly reforms beginning in the mid-1990s. As Ontario’s Ministry of the Environment put it in 1996, according to the report, “a reformed system of environmental regulation will contribute to a competitive business climate.”
Meanwhile, Environment Canada had been reviewing its own statistics and had arrived at some of the same conclusions as the independent researchers—that strict US rules encouraged American industries to ship their toxic waste to the more accommodating provinces of Canada. Among the unsettling facts the agency uncovered was this: almost a third of all hazardous waste shipped from the US in 1998 wound up in Sarnia, Ontario, to be dumped or incinerated at a single facility owned by the Safety-Kleen Corporation.
“We noted that there had been some changes to the US rules on landfilling of hazardous waste that required pre-treatment, and the same requirements were not in place in Canada,” explains Suzanne Leppinen, head of Environment Canada’s Import/Export Section. “So there was a feeling that those differences in standards may at least be partly responsible for this increase in imports.”
"The trucks that leave from the United States, that come to Quebec to dump their contaminated soil, that’s over,” says Quebec Environment Minister André Boisclair. |
In response to the startling numbers, Environment Minister Anderson issued a “call to action” to the Canadian provinces in July 2000. He urged provincial leaders to bolster their own regulations and to work with the federal government to create national standards on landfilling and pre-treatment based on the US rules, but “adapted to the Canadian context,” according to Leppinen.
It didn’t hurt Anderson’s case that Canada’s new environmental protection law had given him some veto power over the provinces, or that residents of Ontario and Quebec were suddenly being barraged with news reports about how their communities had become US dumping grounds. But while public outrage probably nudged the provincial governments to act, Quebec’s new rules still don’t address tracking or liability—two critical issues. Neither do Ontario’s rules, which may yet change before taking effect.
“The federal minister’s problem is that he’s tied up in a knot of federal-provincial complications, because the provinces are the primary regulators,” says Mark Winfield, who helped author the free-trade study when he was at the Canadian Institute for Environmental Law and Policy.
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| Courtesy of Environment Canada |
Proof of just how knotty the waste issue can be in Canada came earlier this year, when British Columbia approved an 8,600-ton shipment of soil laced with dioxin that was heading from Portland, Oregon, to a BC landfill. Though the importers eventually backed out of the deal because of local opposition, critics of Canada’s decentralized waste policies charge that the new rules in Quebec and Ontario will simply encourage such diversions of toxic imports to provinces with fewer restrictions. “The fact remains, we continue to have an enormous regulatory gap in Canada relative to the US,” says Winfield, who now runs the Environmental Governance Program at the Pembina Institute for Appropriate Development, in Ottawa. “As long as that gap continues, Canada will remain an attractive place for waste generators to dispose of their hazardous material.”
The hope is that the CEC, with its trilateral perspective, can help map out a new plan that doesn’t just shift hot zones from one place to the next. Phase one of the CEC project—due out later this year—will be a comparative analysis of regulations and policies governing the transport, treatment, and disposal of hazardous waste within and between the three NAFTA countries. After that, the task force will examine how hazardous wastes are tracked as they move across borders in North America, with recommendations for coordinating manifest systems. According to the CEC’s González, the plan is to get governments to switch from paper-based tracking to electronic databases. This will allow them to share information in real time, he says, “so that enforcement and border personnel have the data they need to effectively exercise control.”
Safe and efficient waste management in North America remains a work in progress. But environmental administrators are hoping that the NAFTA partnership will be a catalyst for stronger protections. Coordination between the three countries should give rise to higher standards across the board, says Dave Campbell, head of Environment Canada’s Environmentally Sound Management Section. “And the CEC gives us a forum in which to get common ground.”
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