Are you registered? Upcoming deadlines for Ontario's new "Blue Box" and "Hazardous and Special Products" individual producer responsibility programs

A. Ontario's shift to individual producer responsibility models

In 2016, the Government of Ontario created the Resource Productivity and Recovery Authority ("RPRA") to support Ontario's transition to individual producer responsibility ("IPR") waste recovery models, in furtherance of a "circular economy" and a "waste-free Ontario".  The IPR model requires "producers" of designated products to contract with a registered Producer Responsibility Organization ("PRO") to, on the producer's behalf, carry out the collection, management, and recycling or disposal of regulated products and execute promotional and educational programs for public awareness.

Since 2016, Ontario's tire stewardship program, battery stewardship program, and electrical and electronic equipment stewardship program have wound up and transitioned into IPR models enforced by the RPRA. 

Soon, both the existing Blue Box program (covering packaging and printed paper ("PPP")) and the Municipal and Hazardous Special Waste ("MHSW") stewardship program will wind up to allow for the transition to IPR models. By October 1, 2021 , companies under these existing programs must register with the RPRA in order to be compliant with the new Blue Box Regulation^[1] and Hazardous and Special Products ("HSP") Regulation.^[2]  Notably, due to the new definition of "producer" under these regulations, companies that may not have been required to register and participate under the old programs (due to a lack of residential ties to Ontario) may now need to register and participate in the new programs if they are "brand holders" and have residential ties anywhere in Canada.

Tech and electronic product companies, tire and automotive manufacturers, and businesses shipping batteries to consumers in Ontario should already be aware of the requirements of the existing IPR programs. Although the new Blue Box and HSP programs are not yet in operation, these same businesses and a wide array of others should review the requirements and upcoming deadlines for these programs, which we discuss in this article.

B. New blue box regulation covering packaging and printed paper

On June 3, 2021, the Government of Ontario finalized the Blue Box Regulation under the Resource Recovery and Circular Economy Act, 2016^[3], creating a new Blue Box Program. This new program will replace the current Stewardship Ontario Blue Box Program, with the transition occurring between July 1, 2023 and December 31, 2025.

The Regulation will transition community blue box services in Ontario, which cover household PPP items, to an IPR system starting in 2023. Under this IPR model, the costs of the program will transition away from communities and taxpayers, making PPP "producers" responsible for managing the entire life-cycle of their products.

Who needs to register?

Under the Blue Box Regulation, "producers" become fully responsible for the collection, recycling, and reuse of PPP materials when consumers discard them. All producers are required to register with the RPRA.^[4]

An entity is a "producer" under the new Blue Box Regulation if they supply products comprised of paper, glass, metal, plastic, or a combination of these materials to consumers in Ontario. Entities supplying these materials can be considered a producer if (in order of priority): (1) they are the brand holder of the PPP product and are resident in Canada; (2) they are resident in Ontario and import the product; or (3) they are the retailer that supplies the product directly to consumers in Ontario. It is worth noting that the Blue Box Regulation can place obligations on brand holders resident anywhere in Canada, unlike PPP programs in other regulated provinces, which require producers to be resident in the relevant province.

What PPP is covered?

The Blue Box Regulation standardizes what PPP products can be recycled across more than 250 Ontario communities. In addition to previously covered PPP such as printed paper and plastic, metal, and glass containers, the Blue Box Regulation covers a broader array of products, including single-use stir sticks, straws, cutlery, and plates.^[5]

Important dates

As of July 1, 2023, producers will be responsible for PPP waste in Ontario. Producers must:

1. Register with RPRA by October 1, 2021;
2. Establish and operate systems to collect and manage PPP materials in communities outside the Far North^[6] starting July 1, 2023; and
3. Report annually on performance to RPRA starting in 2024.^[7]

The province will transition to the new program between July 1, 2023 to December 31, 2025 according to a staggered transition schedule.^[8] Toronto, London, and Kenora will become some of the first municipalities under the IPR model in July 2023.

To be included in the new program, municipalities and First Nations must provide information to RPRA regarding their current blue box systems by September 30, 2021 and November 30, 2021, respectively. Municipalities scheduled to transition in 2023 must also submit a transition report to RPRA by September 30, 2021.^[9]  

C. New hazardous and special products regulation

The transition to IPR for HSP in Ontario also reaches an important milestone at the end of September 2021. HSP includes automotive fluids and containers, solvents, paints, coatings, pesticides, fertilizers, pressurized containers, and mercury-containing devices.

On July 1, 2021, Ontario's Hazardous and Special Products Regulation ("HSP Regulation")^[10] came into force.  Like the Blue Box Regulation, the HSP Regulation initiates a transition from the Stewardship Ontario MHSW program to an IPR model for HSP overseen by RPRA.

On September 30, 2021, the MHSW program ceased and, starting October 1, 2021, the materials subject to that program will transition to the new HSP program. This deadline is an extension of the original deadline of July 1, 2021, granted through a Minister's directive earlier this year.^[11]

What HSP is covered?

The HSP Regulation standardizes what HSP are subject to IPR obligations, separating them into five categories:

• Category A: non-refillable pressurized containers and oil filters;
• Category B: antifreeze, oil containers, paints and coatings, pesticides, refillable pressurized containers and solvents;
• Category C: mercury-containing devices including barometers, thermometers and thermostats;
• Category D: fertilizers; and
• Category E: refillable propane containers.

All of the above categories of products were subject to the former MHSW regime, except for mercury-containing products (Category C) which is a new addition under the IPR regime.

Who needs to register?

As with the PPP program, the HSP Regulation makes "producers" fully responsible for discarded HSP materials and requires them to register with RPRA.

The definition of "producer" under the HSP Regulation varies by HSP category: 

• For Category A, B, and E products, an entity will be the responsible "producer" if (in order of priority): (1) they are the brand holder of the product and are resident in Canada; (2) they are resident in Ontario and import the product; (3) they are the first person to market the product who is resident in Ontario; or (4) they are a person who marketed the product that is not resident in Ontario.
• For Category C products, an entity will be the responsible "producer" if (in order of priority): (1) they are the brand holder of the product and are resident in Canada; or (2) they are a brand holder of a product marketed to consumers in Ontario that is similar to Category C products but does not contain mercury.
• For Category D products, an entity will be the responsible "producer" if they are the brand holder of the product and are resident in Canada.

Like the PPP program, the HSP Regulation can place obligations on brand holders resident anywhere in Canada.

The HSP program will also require registration by:

• "Haulers": entities, other than the generator of HSP, who arrange for the transportation of HSP for processing, reuse, refurbishing, or disposal;
• "Processors": entities who process HSP used by Ontario consumers for the purpose of resource recovery; and
• "Disposal facilities" facilities at which pesticides are disposed of.^[12]

Important dates

As of October 1, 2021, producers will be responsible for HSP waste in Ontario.

Producers must:

1. Establish "transitional" programs to collect and manage products and to promote and educate on resource recovery programs by October 1, 2021;^[13]
2. Register with RPRA by November 30, 2021; and
3. Report annually on performance to RPRA starting in 2022, including through:
   • An interim report by January 31, 2022; and
   • Annual reports beginning on July 31, 2022 and every year thereafter (which, as of the end of the transitional period on January 1, 2023, must be delivered through RPRA's forthcoming Hazardous Waste Digital Reporting Service).

D. Next steps

As these deadlines approach, companies that sell, distribute or import PPP and/or HSP waste into Ontario should ensure their supply chains are prepared to onboard the new requirements.  As indicated above, if your company has been selling regulated products into Ontario, but has not registered with the applicable programs in the past due to lack of residential ties in Ontario, it is important that you consider how these new regulations apply to your supply chain.

If you have questions about how these programs will affect your business, we encourage you to reach out to our Environmental group, which has a wealth of experience with stewardship, extended producer responsibility, IPR and other waste diversion programs in Ontario, and across Canada.