Canadian product stewardship and EPR: 2022 summer update

Across Canada, governments and non-governmental agencies continue to implement various innovative waste management programs to divert waste away from landfills. These programs involve many product categories, including tires, batteries, electronic products, packaging and printed paper, beverage containers, and hazardous and special products.

A. The 2022 summer update

In our January 21, 2022 article, we provided a primer on product stewardship and extended producer responsibility ("EPR") programs, and a snapshot of key changes that occurred in 2021 and were expected to occur in 2022. This article is the second instalment in a bi-annual series that will provide updates on Canadian product stewardship and EPR programs.

Key changes can include: i) new programs in jurisdictions that formerly did not have programs, ii) expanded product lists for existing programs, iii) shifts from product stewardship models to EPR models, and iv) expanded regulatory enforcement mechanisms and activity.

We also note several general updates about Canadian waste management and diversion.

B. How have programs already changed in 2022, and what changes are expected in the rest of 2022 and beyond?

Alberta

Upcoming changes

• In our previous update, we noted that the Alberta government is developing an EPR framework for Alberta pursuant to the Environmental Protection and Enhancement Amendment Act. Consultation on this framework ended on January 21, 2022, and the results are currently under review with draft regulations to follow.[1] The Alberta government had originally planned to release the regulations in the spring of 2022, but has shifted the release to fall 2022. Once an EPR regulation comes into force, there will be a 28-month transition period to allow producers and producer responsibility organizations ("PROs") to establish collections systems and register with the EPR oversight body.

Saskatchewan

Upcoming changes

• On May 11, 2022, the Government of Saskatchewan released draft Household Packaging and Paper Stewardship Regulations,[2] which govern the distribution of packaging and printed paper ("PPP") to Saskatchewan households by businesses. The regulations are intended to ensure a successful, efficient and sustainable program to handle the recycling of PPP. The draft regulations propose transitioning to a full EPR model, where industry assumes full operational and financial responsibility for collecting and recycling PPP in Saskatchewan. The Government of Saskatchewan also recently released a summary of the proposed changes between the current and proposed regulatory frameworks.[3] The Ministry's engagement process on the proposed regulations spanned from May to June 30, 2022.

Manitoba

Upcoming changes

• On June 3, 2022, Multi-Material Stewardship Manitoba ("MMSM") re-submitted its draft Transition Plan outlining its shift to a full EPR model for Manitoba's PPP program to the Minister of Environment, Climate and Parks.[4] The revised draft reflects feedback received from the Department of Environment, Climate and Parks on April 6, 2022. Specifically, this plan sets out the process by which MMSM will assume both operational and financial responsibility and accountability for PPP collection and management in Manitoba. Following a 30-day consultation period that concluded on August 15, 2022, the government of Manitoba plans to review all responses and request any necessary revisions to the plan.

Ontario

2022

• On April 14, 2022, amendments[5] to the Ontario Blue Box Regulation under the Resource Recovery and Circular Economy Act, 2016[6] ("RRCEA") came into effect. These amendments seek to clarify the process for creating the province-wide system for collecting Blue Box materials that will be operated by "PROs" on behalf of producers. Amendments of particular relevance are as follows:
  • each producer is responsible for providing Blue Box collection to every residence or facility in eligible communities in Ontario;
  • rule creators and the rule creation process, including the allocation table, have been removed; and
  • PROs that, either on their own or with another PRO, represent producers that supply more than 66% of Blue Box material tonnage are required to submit a report on how they will operate the Blue Box system. The report was due to the Resource Productivity and Recovery Authority ("RPRA") by July 1, 2022.[7]
• On June 3, 2022, the RPRA posted the final 2022 RRCEA Program Fees for Ontario producers,[8] opened the Supply Reporting Registry for producers,[9] and included specific requirements for what producers need to report. Producers can access the Report from their dashboard by logging onto their Registry account.[10] Producers of batteries and ITT/AV were required to submit their 2022 Supply Data Report and pay their annual program fee by July 4, 2022.[11]
• Under the Ontario Blue Box Regulation, municipalities and other eligible communities are required to report to RPRA about current blue box programs to help facilitate the transition to full producer responsibility.[12] Reporting is now open for communities transitioning to full producer responsibility in 2024. Such communities are required to submit their Transition Report to RPRA by August 31, 2022. For guidance on completing the Transition Report, see RPRA's Municipal and First Nation Reporting Guide.[13]
• On July 21, 2022, the RPRA's Registrar issued a statement reminding producers and PROs of their obligations under the Ontario Blue Box Regulation.[14] Under the Blue Box Regulation, all producers have an obligation to establish a collection system and ensure it is in place by July 1, 2023. According to this statement, the Registrar considers the readiness of the Blue Box System on July 1, 2023 a "high priority matter."

Upcoming changes

• The RPRA is consulting with stakeholders in Ontario on Enhancing Public Reporting of Resource Recovery Data and RPRA Compliance Activities.[15] The RPRA is seeking feedback from stakeholders on what enhancements can be made to its public reporting of resource recovery and compliance information.[16] Interested parties can review the RPRA's proposal for enhanced public reporting,[17] and can submit feedback to consultations@rpra.ca. The deadline for comments was August 5, 2022.
• On April 14, 2022, the Registrar of the RPRA released a statement regarding the used battery collection system in Ontario.[18] This statement noted the existence of an ongoing dispute between Call2Recycle Canada Inc., a PRO operating a battery collection and recycling system in Ontario on behalf of its battery producer clients, and Raw Materials Company Inc., an Ontario-based battery processor, which has resulted in a significant reduction of used battery collection sites in Ontario. This dispute is outside the purview of the Batteries Regulation,[19] but its impact on the battery collection system is not. RPRA's Compliance and Enforcement Team is currently reviewing battery producers' compliance with the Batteries Regulation. Any orders issued related to this matter will be publicly disclosed on the RPRA's website. A follow up statement will be issued at the conclusion of the inspection.

Quebec

2022

• On May 4, 2022 the Quebec government made amendments to the Compensation for municipal services provided to recover and reclaim residual materials regulations under the Environment Quality Act.[20] The amendments require that, not later than June 30 each year, every municipality is required to send a declaration to the Société québécoise de récupération et de recyclage stating the quantity of material subject to compensation that was recovered and reclaimed and the net cost of the services the municipality provided for the collection, transportation, sorting and reconditions of those materials. The amendments further require that, not later than December 31 of the year in which the current schedule expires, a certified recycling agency (e.g., Éco Entreprises Québec and RecycleMédias) must send its proposed schedule regarding payment of contributions to Société québécoise de récupération et de recyclage.
• On June 1, 2022, the Government of Quebec enacted amendments[21] to the Regulation respecting the recovery and reclamation of products by enterprises[22] under the Environment Quality Act.[23] The amendments modify the current regime surrounding recycling and EPR in Quebec. Some of these changes include:
  • addition or expansion of categories of products that are subject to EPR, including small sealed lead-acid batteries, agricultural plastics, pharmaceutical products, and pressurized fuel containers between 2023 and 2025;
  • addressing online sales made by companies outside Quebec; and
  • removal of electric vehicles from the products covered by this amendment, with the government and industry planning to set up a voluntary recovery program next year instead.
• On June 8, 2022, the Government of Quebec published the Regulation respecting a system of selective collection or certain residual materials.[24] The purpose of this regulation is to require persons who commercialize, market or otherwise distribute products in containers or packaging or printed matter to develop, implement and contribute financially to a system of selective collection of residual materials generated to allow them to be recovered and reclaimed. The regulation defines "containers and packaging" as a product made of flexible or rigid material such as paper, cardboard, plastic, glass or metal, and any combination of such materials, excluding pallets designed to facilitate the handling and transportation of a number of sales units or grouped packagings. The regulation defines "printed matter" as any product made of paper and other cellulosic fibres, whether or not used as a medium for text or images, except books with a useful life of more than 5 years.
• On July 7, 2022, two regulations regarding the modernization of Quebec's deposit and selective collection systems came into force, the Regulation respecting the development, implementation and financial support of a deposit system for certain containers[25] and the Regulation on a curbside selective collection system for certain residual materials,[26] respectively. These regulations require entities who distribute products in containers or packaging to develop, implement and fund a deposit-refund system and a collection system for these containers and packaging.
• On July 13, 2022, the Quebec Minister of Environment and the Fight Against Climate Change approved the schedule of contributions established by Éco Entreprises Québec and RecycleMédias for the year 2022.[27] Under the Environment Quality Act, municipalities and Aboriginal communities, represented by their band councils, must be compensated for the services provided by the municipalities or Aboriginal communities to ensure that the materials designated by the Government under the Environment Quality Act are recovered and reclaimed. Éco Entreprises Québec and RecycleMédias both conducted special consultation before establishing the schedule of contributions applicable for 2022 for the "containers and packaging", "printed matter", and "newspapers" classes of materials.

Upcoming changes

• On January 26, 2022, the Quebec government tabled draft Regulations for a system of selective collection of certain residual materials.[28] The draft Regulations cover containers and PPP and will create an EPR system. The transition to the new system is set to begin in fall 2022 and end on January 1, 2025. The consultation period for the draft Regulations closed on March 11, 2022.

C. Next steps

Waste diversion programs will continue to evolve and companies must ensure they understand their obligations to maintain compliance. Gowling WLG continues to monitor these programs closely and will publish further updates as information becomes available.

The environmental law team at Gowling WLG has assisted many entities in meeting their EPR and stewardship requirements across Canada. If you have questions about your company's obligations, we encourage you to contact any member of our team.