Taking Stock Volume 16

2 Feature Analysis: Off-site Transfers to Disposal in North America, 2014–2018

2.3 Waste Disposal Practices and Their Potential Impacts

2.3.3 Industrial and hazardous waste management laws, regulations, and guidelines

This section describes the national and international agreements, laws, regulations, and standards that pertain to the management and disposal of industrial and hazardous waste in North America.

International Agreements

The three countries of North America have signed and/or ratified various international conventions, protocols, agreements, and other instruments that facilitate the tracking, management and minimization of environmental and human health impacts arising from the inadequate management of chemicals and waste. These international instruments include^[38]:

• The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal was adopted in 1989 to address the issue, brought to light in the 1980s, of toxic waste exported to developing countries for disposal (UNEP 2010a). The objectives of the Convention are to protect human health and the environment against the adverse effects of hazardous waste, to reduce the generation of hazardous waste and restrict the transboundary movements thereof, and to promote the environmentally rational management of these materials, regardless of their place of disposal. The United States has not ratified the Basel Convention; however, as over 98% of North American imports and exports of hazardous waste and hazardous recyclable materials are between Canada and the United States, in 1986 the two countries signed the Agreement between the Government of Canada and the Government of the United States concerning the Transboundary Movement of Hazardous Waste to ensure that transboundary movements of hazardous wastes are handled safely and that these wastes are sent to authorized facilities in the importing jurisdiction.^[39]
• The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. The objective of this Convention is to establish a procedure for prior authorization of the import and export of certain hazardous chemicals and commercial pesticides. This is achieved by ensuring that importing countries dispose of all necessary information regarding the characteristics of such materials and the risks of managing them, thereby enabling them to decide, on the basis of informed consent, which chemicals they wish to receive and exclude those they cannot safely manage, to avoid risks to human health and the environment (UNEP 2010b).
• The Stockholm Convention on Persistent Organic Pollutants (POPs). The objective of this Convention is to protect human health and the environment from POPs, as well as to foster the best available practices and technologies to replace the POPs currently in use and prevent the development of new POPs by strengthening national laws and policy instruments (UNEP 2010c).
• The Minamata Convention is an international, legally binding instrument whose objective is to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds. The WHO classifies mercury as one of the ten most hazardous chemical substances. The Convention came into force on 16 August 2017. To date, it has been ratified by 86 parties (UNEP 2021a).
• The Intergovernmental Forum on Chemical Safety (IFCS) is a non-binding agreement by which government representatives meet, together with intergovernmental and non-governmental organizations, to consider all aspects related to the evaluation and management of chemical substances. Its purpose is to integrate and consolidate national and international efforts to advance the objectives set forth in Chapter 19 of Agenda 21.^[40]
• Strategic Approach to International Chemicals Management (SAICM). SAICM’s objective is to achieve the sound management of chemicals throughout their life cycle, so that they are produced and used in ways that minimize significant adverse effects on human health and the environment. This objective will be achieved in various ways, including through the implementation of the Global Plan of Action (UNEP 2021b).

Canada

Canadian Environmental Protection Act (CEPA)

The CEPA is the cornerstone of Canada’s environmental legislation. It is administered by the Ministry of the Environment and Climate Change Canada (ECCC), in conjunction with the Ministry of Health, with the objective of protecting the environment and human health by preventing pollution and minimizing the risks associated with exposure to potentially hazardous chemicals (Government of Canada 2021b).

The CEPA provides the Government of Canada with a variety of tools and regulations to protect the environment and human health, including the prescribing of strict guidelines for managing substances that it determines to be toxic. Under this Act, the ECCC’s Waste Reduction and Management Division oversees the regulations on imports and exports of hazardous waste and hazardous recyclable materials, exports of waste containing polychlorinated biphenyls (PCBs), and interprovincial movements of hazardous waste (Government of Canada 2016a).^[41]

The Minister of the Environment and Climate Change Canada and the Minister of Health are jointly responsible for preparing a list of substances that must be assessed in a timely manner to determine whether they are toxic, or liable to become toxic. Substances of concern are added to the Priority Substances List (PSL), with the proviso that they are to be evaluated within five years of their inclusion therein. It is recommended that substances considered toxic be added to the Toxic Substances List (TSL, also known as Schedule 1 substances), and that thereafter consideration be given to prevention or control measures, such as regulations, guidelines, or codes of practice, concerning any aspect of the life cycle of each substance—from the research and development stage to the manufacturing, use, storage, transport and disposal or recycling thereof. The virtual elimination of determined substances may also be proposed pursuant to CEPA Section 65 (3) (Government of Canada 2016b).

In relation to the country’s economic sectors, the federal government’s responsibilities include the promotion of pollution prevention by averting pollutant releases and reducing the non-economic costs of waste treatment and disposal. This entails the management and control of Schedule 1 listed substances. Under the CEPA’s enforcement provisions, when a substance is released in contravention of the Act, or such a release is probable, the person or entity responsible must take reasonable emergency measures to prevent a release if it has yet to occur, remedy any hazardous condition, or reduce any danger to the environment or human life or health that may, or is expected to, result from the substance’s release (Government of Canada 2019a).

CEPA sections 46-53 define the activities related to the compilation of related information, including the development of substance release inventories such as the National Pollutant Release Inventory (NPRI). Established in 1993, the NPRI is a public inventory of pollutant releases, disposals and transfers that tracks approximately 320 pollutants from over 7,000 facilities in a wide variety of manufacturing sectors, as well as mining and oil and gas operations, power plants, and wastewater treatment plants.

Fisheries Act

In 2019, the provisions of Canada’s amended Fisheries Act came into effect, including new protections for fish and fish habitats in the form of standards, codes of practice and guidelines for projects located near bodies of water. ECCC is responsible for administering and enforcing the Act’s pollution prevention provisions, which prohibit the depositing (i.e., actions such as discharges, spraying, releases, spills, leaks, filtration, emission, draining, dumping or placement) of deleterious substances in water frequented by fish. The Fisheries Act defines deleterious substances as:

“…any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water…” (Government of Canada 2021c).

ECCC enforces the pollution prevention provisions of the Fisheries Act through inspections, evidence collection on alleged violations and other appropriate enforcement actions (Government of Canada 2021d). Moreover, the Environmental Enforcement Act provides for the maintaining of a registry of corporations found to be in violation of certain environmental and wildlife laws, including the pollution prevention provisions of the Fisheries Act. The fines thus collected go to the Environmental Damages Fund to finance priority environmental restoration projects and wildlife and habitat conservation projects (Government of Canada 2021e).

Impact Assessment Act (IAA)

This Act, which came into effect in 2019, created the Impact Assessment Agency of Canada (IAAC) with a broad mandate and responsibilities as the sole body responsible for impact assessments and coordination with Indigenous communities regarding major projects. The IAAC is responsible for assessing the positive and negative environmental, economic, social and health impacts of major potential projects (Government of Canada 2021f).

The Impact Assessment Act supersedes the 2012 Canadian Environmental Assessment Act (CEAA 2012). Among the activities subject to environmental impact assessments under the IAA are the construction, operation, dismantling and abandoning of installations used exclusively for the treatment, incineration, disposal, or recycling of hazardous waste; and the expansion of such installations where this would result in an increase in their capacity for processing hazardous waste by 50% or more.^[43]

In addition to negotiating international agreements on chemicals and waste management, the federal government regulates the transboundary movements of hazardous waste and recyclable hazardous materials. The conditions under which exports and imports may occur are subject to the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (EIHWHRMR) (Government of Canada 2021g).^[44] Provincial, territorial and municipal authorities are responsible for regulating the treatment, storage, and disposal of hazardous waste within their jurisdictions.

The shared jurisdiction over hazardous waste management in Canada adds to the complexity of this task. Although the federal government does put forward regulations and standards, the regulation of hazardous waste management activities is the responsibility of the provincial, territorial, and municipal authorities. Accordingly, regulations may vary widely from one jurisdiction to another. A key entity through which the federal, provincial, and territorial governments collaborate to protect Canadians’ environment and health is the Canadian Council of Ministers of the Environment (CCME). Established in 1964 and composed of federal, provincial, and territorial ministers of the environment, the CCME has developed national guidelines for the treatment, storage and disposal of hazardous waste and hazardous recyclable materials, as well as guidelines applicable to incineration facilities, confinement sites and physical, chemical, and biological treatment processes.^[45]

Among other federal authorities responsible for controlling pollutant substances is the Canadian Food Inspection Agency (CFIA), which regulates municipal biosolids imported or sold in Canada as fertilizers or soil supplements, through standards aimed at ensuring their safety relative to permissible levels of trace metals, dioxins and furans, and pathogens (CCME 2012).

Mexico

General Ecological Balance and Environmental Protection Act (LGEEPA)

The cornerstone of Mexico’s environmental legislation is the General Ecological Balance and Environmental Protection Act (Ley General del Equilibrio Ecológico y Protección al Ambiente—LGEEPA) (DOF 1988). This instrument includes provisions on ecological land-use planning, environmental impact, biodiversity, wildlife conservation, protected natural areas, self-regulation and environmental oversight, hazardous materials and waste, and the prevention and control of air, water, and soil pollution. LGEEPA defines hazardous waste management as a set of operations which includes the storage, collection, transport, confinement, re-use, treatment, recycling, incineration and disposal of these wastes—activities which require authorization from the Ministry of the Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales—Semarnat), acting through the General Directorate for the Comprehensive Management of Hazardous Materials and Activities (Dirección General de Gestión Integral de Materiales y Actividades Riesgosas—DGGIMAR). DGGIMAR recognizes specific hazardous waste management methodologies, including physical, chemical, or biological treatment; incineration; and treatment through underground injection.

General Law for the Prevention and Comprehensive Management of Waste (LGPGIR)

In Mexico, the management of solid waste, special waste and hazardous waste are all subject to the provisions of the General Law for the Prevention and Comprehensive Management of Waste (Ley General para la Prevención y Gestión Integral de los Residuos—LGPGIR) (DOF 2003), the Regulation to the LGPGIR, and the related Official Mexican Standards. These instruments establish the guidelines for safe comprehensive waste management, from the moment waste is generated until its final disposal. Table 11 outlines some of the provisions of the LGPGIR and its related regulation (DOF 2006).

Mexican Official Standards establish which types of waste are classified as hazardous, set the concentration limits of substances contained in these wastes, and prescribe science and evidence-based waste management practices in accordance with the degree of hazard posed (DOF 2003). Official Mexican Standard NOM-052-SEMARNAT-2005 specifies the characteristics of hazardous wastes, establishes procedures for identifying and classifying these materials, and maintains lists of types of hazardous waste. The following standards also pertain to hazardous waste management:

• NOM-054-SEMARNAT-1993, which establishes the procedure for determining whether two or more types of waste considered hazardous are incompatible.
• NOM-055-SEMARNAT-2003, which establishes the requirements applicable to sites intended for the controlled confinement of stabilized hazardous waste.
• NOM-058-SEMARNAT-1993, which establishes the requirements applicable to the operation of a hazardous waste confinement site.
• NOM-145-SEMARNAT-2003, which pertains to confinement in cavities excavated for the purpose of waste dissolution in geologically stable salt domes.

The LGEEPA’s Regulation on the Pollutant Release and Transfer Register (Reglamento de la LGEEPA en materia de Registro de Emisiones y Transferencia de Contaminantes—RETC) establishes the RETC as the sole instrument for disseminating information on emissions of substances listed by NOM-165-SEMARNAT-2013, by facilities subject to reporting requirements, in the air, soil and national water bodies (i.e. “releases”), or on movements of these pollutants for re-use, recycling, co-processing, treatment or disposal in hazardous waste disposal facilities, or via wastewater discharges in sewage systems (i.e., “transfers”) (Semarnat 2021). The information from the RETC is to be integrated with the data and information contained in the environmental authorizations, certificates, reports, licenses, permits, and concessions processed by Semarnat, or by the relevant authority, such as Mexico City, the states, and where applicable, the municipal governments (DOF 2004).

The Annual Certificate of Operations (Cédula de Operación Anual—COA) is the tool used for reporting and compiling annual information on pollutant releases and transfers, and for updating the RETC database. The COA is used by sectors and facilities under federal jurisdiction, hazardous waste generators, and facilities that discharge wastewater into national waters (DOF 2004). In addition to RETC data (contained in section V), the COA also contains information about a facility’s processes, inputs, products, by-products, and energy consumption, along with the generation, transfer, and management of its hazardous waste.

Under Semarnat, the General Directorate for Air Quality and Pollutant Release and Transfer Register (Dirección General de Calidad del Aire y Registro de Emisiones y Transferencia de Contaminantes—DGCARETC) is responsible for collating and disseminating PRTR information, as well as for developing and implementing the COA; while the DGGIMAR is responsible for the issuing, suspension or revoking of authorizations for hazardous waste/materials management and transfers, as well as for collection, transport, treatment and other services. Cooperation between the DGCARETC and the DGGIMAR is required to ensure clear and uniform information in relation to the COA and authorization registers, as this information is used to populate the RETC database. Discrepancies found in the latter may reflect the fact that hazardous waste management and disposal are sometimes contracted to authorized third parties. In such cases, the waste generator’s responsibility is transferred to said third parties, who are then responsible for requesting the necessary authorizations from DGGIMAR to carry out their waste management operations.^[47]

As a complement to the RETC and COA, a key waste management instrument is the Hazardous Waste Management Plan. This tool is designed to enable parties involved in hazardous waste generation to reduce their waste volumes and to fully leverage the value of materials that are re-usable, recyclable or potentially recyclable as alternative fuels, thereby reducing the need to treat, confine or dispose of the materials. The parties required to formulate and implement a waste management plan include producers, importers, exporters and distributors of products that, when disposed of, become hazardous waste under LGPGIR Article 31, sections I to XI (i.e., used lubricating oils, spent organic solvents, catalytic converters, car batteries containing lead, mercury or nickel-cadmium batteries, fluorescent and mercury vapor lamps, additives containing mercury, cadmium or lead, pharmaceuticals, pesticides and pesticide containers or packaging with residues) (DOF 2006).

In the case of the oil and gas sector, the Safety, Energy and Environment Agency (Agencia de Seguridad, Energía y Medio Ambiente—ASEA), which answers to Semarnat, is the regulatory authority charged with strategic planning. ASEA is responsible for interpreting and enforcing the laws and other legal provisions that regulate this sector’s operations in relation to, for example, the safety of the transport and distribution operations for hydrocarbons and/or petroleum products. ASEA also carries out inspection and monitoring activities.^[48]

National Water Commission (Comisión Nacional del Agua—Conagua): This agency monitors the granting of permits for industrial and commercial sectors and their compliance with water quality laws and regulations. Conagua also monitors the following water quality parameters or indicators: biochemical oxygen demand (BOD), chemical oxygen demand (COD), total suspended solids (TSS), fecal coliforms, Escherichia coli, enterococci, etc.

Conagua oversees the implementation of the following water quality standards:

• NOM-001-SEMARNAT-2021, which establishes the maximum permissible limits of pollutants for waste discharges in national waters and other national assets;
• NOM-002-SEMARNAT-1996, which establishes the maximum permissible limits of pollutants for wastewater discharges in urban or municipal sewage systems;
• NOM-003-SEMARNAT-1997, which establishes the maximum permissible limits of pollutants for treated wastewater re-used in public utilities, and provides guidelines for the use of biosolids for soil improvement;
• NOM-004-SEMARNAT-2002, which establishes the specifications and maximum permissible limits of pollutants in sludges and biosolids for re-use and final disposal.^[49]

United States

Toxic Substances Control Act (TSCA)

This Act gives EPA the authority over reporting, record-keeping and testing requirements, as well as restrictions relating to chemical substances and mixtures. While food, drugs, cosmetics and pesticides are generally excluded, TSCA addresses the production, importation, use, and disposal of specific chemicals (e.g., polychlorinated biphenyls, asbestos). Among others, TSCA provisions relate to: a) pre-manufacture notification for new chemical substances; b) testing of chemicals by manufacturers, importers, and processors where risks or exposures of concern are found; c) maintaining the TSCA inventory of more than 83,000 chemicals; and d) certification and reporting requirements for importing or exporting chemicals (EPA 2022a).

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

This Act, also known as Superfund, provides federal funding to clean up uncontrolled or abandoned hazardous waste sites and accidents, spills, and other emergency releases of contaminants into the environment (EPA 1994).

Resource Conservation and Recovery Act (RCRA)

In the United States, industrial hazardous waste is regulated by the RCRA. This 1976 law stipulates what is classified as hazardous waste and specifies the allowable methods of disposal for the waste. It also maintains information on specific waste generation and disposal sites. The regulations relating to the identification, classification, generation, management, and disposal of hazardous waste are contained in Parts 148 and 260-273 of Title 40 of the Code of Federal Regulations (CFR). These regulations concern hazardous waste identification and related lists; the standards to be observed by hazardous waste generators, transporters of hazardous waste, and the proprietors and operators of hazardous waste treatment, storage, and disposal facilities; as well as the standards for hazardous waste management programs and authorizations at the state level (CFR 2020).

Table 12 summarizes key provisions of the abovementioned guidelines on hazardous waste disposal in the United States.

Emergency Planning and Community Right-to-Know Act (EPCRA)

Under this Act, companies are required to provide information on their inventories of hazardous chemicals, as well as report their chemical releases to the Toxics Release Inventory (TRI), which publishes annual information on the releases and transfers of more than 700 substances (and 33 chemical categories). The regulations applicable to facilities are found in in Parts 355, 370 and 372 of Title 40 of the CFR (EPA 1994).

Facilities are required to provide an annual estimate of their releases and transfers per TRI regulated chemical compound. Many facilities base their estimates on information they are required to report under other regulations. As may be seen in Figure 12, each of these programs contains information that may complement the TRI, as well as serve as a major information source regarding the use, management or disposal of other, non-TRI listed substances.

Clean Air Act (CAA)

Pursuant to amendments to the Clean Air Act, the EPA is required to publish regulations and guidelines on preventing chemical accidents in facilities that use certain hazardous substances (EPA 2018b). For example, in its Risk Management Plan (RMP) an installation must identify the potential effects of a chemical accident, as well as the measures being taken to prevent such accidents. In addition, it must specify its emergency response procedures in the event of an accident (EPA 2018b). Section 129 of the Act requires the EPA to develop and adopt standards and emission limits for hospital, medical and infectious waste incinerators relative to nine specific pollutants: cadmium, carbon monoxide, hydrogen chloride, lead, mercury, nitrogen oxides, particulate matter, dioxins and furans, and sulfur dioxide.

Clean Water Act (CWA)

The CWA regulates discharges of pollutants into US waters, as well as surface water quality standards. Under the CWA, the EPA has implemented pollution control programs and set wastewater standards applicable to industry. In addition, it has established the maximum permissible concentrations of pollutants and mandated good management practices, among other requirements (EPA 2021 a). Pursuant to CWA section 405(d), the EPA is required to review sewage sludge regulations at least once every two years (i.e., biennially) to identify any additional toxic pollutants and promulgate regulations consistent with established requirements, if necessary, for such additional pollutants.

Under the CWA, the permit program of the National Pollutant Discharge Elimination System (NPDES) regulates point sources that discharge pollutants into US waters. The NPDES sets the discharge limits and conditions applicable to industrial and commercial sources, including specific limits based on the sector and type of activity generating the discharge. The NPDES also establishes effluent limitation guidelines and standards aimed at controlling discharges of toxic pollutants (EPA 2021g).

Safe Drinking Water Act (SDWA)

The SDWA sets a framework for the Underground Injection Control (UIC) program, with regulations for the construction, operation, permitting and closure of injection wells (which are regulated under RCRA, as mentioned earlier) to ensure that injected wastes do not endanger underground sources of drinking water (USDWs). The EPA is charged with developing UIC requirements to protect USDWs from potential pollution due to underground injection activities; however, it has approved primacy status (i.e., authority) to thirty-one states and three territories relative to Class I, II, III, IV and V underground injection wells.  The principal means at the disposal of the EPA and the competent state authorities for enforcing UIC Program compliance is to inspect permitting conditions on injection sites (EPA 2016c).