Written by Jonathan D. Cocker, Baker McKenzie and Peter Hargreave, Policy Integrity Inc.
COVID 19 Disrupts Cross-Border Waste and Recyclables Flow
In light of all the actions being taken by all levels of government to address the spread of the coronavirus, it is worth considering its impact on the waste management sector in Canada. For most, how waste is collected and where it is taken, is not a daily consideration. And yet, it is one of the most important public health and safety considerations.
Canadian Waste Industry Vulnerable to US Shutdown
In Ontario for instance, roughly one-third of the Province’s waste disposal needs are met by landfills in the United States. That equates to 3.2 million tonnes of waste a year or roughly 9,000 tonnes per day. While other Canadian provinces do not have the same reliance on out-of-country disposal, many are reliant on a degree of waste materials being shipped across the border.
The free movement of these materials across the US border is an important element of the current Canadian waste management system. In the last two decades, we have dealt with a few potential disruptions to this flow of materials.
- The terrorist attacks of September 11th, 2001 provided a first indication of the potential vulnerability when US border access was constrained. The immediate closure and proceeding long lines at the border lasted for several days afterward. The Ontario Ministry of Environment, for instance, had to facilitate emergency measures to ensure waste could be managed in the interim period.
- After a number of waste truck rollovers in Michigan in the early 2000s, local Senators threatened legislative action to restrict waste crossing the border. This led to an agreement between the state of Michigan and Ontario municipalities in 2006, to end the export of municipal waste (specifically from the GTA) to Michigan by 2010. The province helped facilitate the agreement, and as a result, the state of Michigan dropped all legislative initiatives to stop waste imports. The agreement did not include non-residential waste. By 2010, Ontario municipalities had stopped sending residential waste to Michigan. For a time, overall waste shipments to the U.S. declined, but since 2010, non-residential waste export to the U.S. has steadily increased.
- Concerns were also raised again as part of the negotiation of the North American Free Trade Agreement in 2018 that there could be potential for restrictions on the movement of goods.
Any impact on the movement of waste as a result of a closure to the border, would necessitate the management of this roughly 9,000 tonnes of additional waste domestically.
Desperate Times Call for Desperate Measures?
As in 2001, the inability to transfer waste to the United States would likely necessitate potential changes to environmental permits (such as Environmental Compliance Approvals in Ontario) or governmental emergency declarations / measures to allow for waste receiving sites to increase their annual daily maximum limits. Provincial regulators have been prepared in the past in granting the necessary permissions, and are likely doing similar work now to ensure the waste industry is not at risk of willful non-compliance.
It may also be the case that some of these waste volumes don’t easily find an alternate receiving site, putting the collectors and/or haulers in the difficult position of potentially operating an unlicensed waste storage facility. Provincial governments will need to think through these situations including requiring certain sites to accept materials. In short, there are no simple solutions, but proper planning across the country can at least reduce risks.
Hazardous Recyclables and Hazardous Waste Movement Compliance
In the case of hazardous materials for which no clear alternate home is available in Canada, the situation is even more precarious. Internationally, no less than 99% of all (lawful) hazardous recyclables (and hazardous waste) exported from, or imported to, Canada are with the United States. International wastes are still regulated in Canada under the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, which has yet to be replaced by the long-proposed and more business-friendly Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations.
The Export and Import law currently requires certifications from the holder that any recyclable or waste which is not successfully transferred across the border will be lawfully disposed of in Canada consistent with the approved recycling or waste activity under which the materials were to be transited to the United States.
A closed border will, in at least some circumstances, put that certification to the test as not all materials exported to the United States have an alternate recycling or disposal facility in Canada. This is increasingly so with the growth of more specialized and regionally-servicing facilities in US states which capture both Canadian and American materials.
Some Canadian Recyclers Dependent Upon US Material
The reverse also creates challenges for the waste industry as some Canadian recyclers are economically dependent on US material. The disruption of the needed supply of US-originating materials into specialized recycling and disposal facilities in Canada can quickly create a situation where insufficient material volumes makes the facilities no longer viable, leaving the Canadian materials also without a home.
In other words, the growth of integration, particularly in respect of hazardous recyclables and discrete hazardous wastes makes a border shutdown acutely challenging for the Canadian recycling and waste industry.
Contingency Planning to be Developed?
It is likely an overreaction to anticipate that US-Canada integration in resource recovery and waste disposal will come to an end with the current closure of the border. The economies of scale and lower cost disposal capacity in the United States will presumably reinvigorate this international trade once the worst of COVID-19 has passed.
There may, however, be a growth in contingency planning in respect of Canadian waste and recycling capacity, recognizing a myriad of events may give rise to future US border closures and the Canadian waste industry needs to be prepared.
About the Authors
Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters.
Peter Hargreave, President of Policy Integrity Inc., has over 15 years’ experience in providing strategic advice in the development, implementation and oversight of public policy. Over his professional career, he has developed a strong network of relationships with regulators, public and private organizations, and other key stakeholders involved in environmental issues across Canada, the United States and abroad.