by Jonathan Cocker, Baker McKenzie

The interprovincial and international movement of hazardous recyclable materials, such as used batteries, is already big business and will only grow in the coming years in North America. Internationally, no less than 99% of all (lawful) hazardous recyclables (and hazardous waste) exported from, or imported to, Canada are with the United States.

The coming restrictions under amendments to the Basel Convention will also strengthen and foster demand for North American-based hazardous materials recycling as transfers to developing countries will be increasingly prohibited. The soon-to-be-replaced Canadian legal regime governing flows of such materials, however, has not evolved to match the market opportunities.

What was the Problem?

For starters, there are two principal outgoing federal regulations regarding the movement of hazardous recyclables and hazardous wastes:

  • the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Export and Import Regulations); and
  • the Interprovincial Movement of Hazardous Waste Regulations (Interprovincial Movement Regulations)

These use different definitions of hazardous recyclables and hazardous wastes and mandate different movement documents, with neither adopting an electronic tracking system. The third hazardous waste law, the PCB Waste Export Regulations, 1996 set PCB concentration limits which rendered it incapable of facilitating exports to either the United States or elsewhere. As a result, there have been no PCB waste exports.

In short, a more commercially-responsive regime was desperately needed.

Growing International Alignment with New Cross-Border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations 

The new Cross-Border Movement Regulations, in final approval stages now with a 6-month lead time period to bring into force, combines the three regulations into one and adopts single definitions and processes for both interprovincial and international movements of hazardous recyclables and hazardous waste.

More notably, the Cross-Border Movement Regulation also seeks to harmonize the adopted definitions with accepted definitions in other jurisdictions (including the US) and international agreements. In other words, the international flows of hazardous recyclables and wastes no longer allow Canada to mainly uniquely domestic (if not parochial) practices.

Clarity on Battery Recyclables and Wastes Harmonizes Globally

The Export and Import Regulations did not expressly address used batteries, creating uncertainly as to which types must be treated as either hazardous waste or hazardous recyclable material. Some types of batteries were clearly caught – but there was uncertainly around certain categories.

The Cross-Border Regulations clarifies that all types of batteries (both rechargeable and non-rechargeable) being shipped internationally or interprovincially for disposal or recycling are regulated. Further, this expanded inclusion of used batteries is consistent with international standards, allowing the battery industry to more easily include Canada in multinational strategies for the resource recovery of these materials, while adhering to increasing restrictions as to where such recycling can take place.

Regional Battery Recycling Hubs to Grow?

With a growing move away from locally-mandated recycling towards open international markets for the delivery of recycling and other resource recovery services, the changes under the Cross-Border Regulation affecting used batteries could not have come too soon.

Further, circular economy laws imposing individual producer responsibility on the battery industry may well now allow battery producers to consider regionalizing its used battery recovery operations to best capture economies of scale without the regulatory difficulties in Canada now addressed by the Cross-Border Regulations.

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The time is now for the North American battery industry to strengthen and extend their reverse supply chains across provincial /territorial boundaries and the US-Canadian border as the best available commercial strategy.

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This article has been republished with the permission of the author. It was first published in Environmental Law Insights.

About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).