Canadian product stewardship and EPR: A review of 2022 and beyond

In 2022, Canadian governments and other organizations forged ahead with innovative stewardship and extended producer responsibility ("EPR") programs to decrease the amount of waste headed to landfills. These programs capture product categories such as tires, batteries, electronics, packaging and printed paper, beverage containers, and hazardous and special products.

This article is the third instalment of an ongoing series, published bi-annually, that explores current developments in Canadian product stewardship and EPR programs. Our first article provides a primer on product stewardship and EPR programs and compiles the key changes that occurred in 2021, and our second article compiles the key changes that occurred in the first half of 2022. The Gowling WLG environmental law team also discussed some of the key issues and trends in product stewardship and EPR programs in a recent webinar.

This review provides updates from the latter half of 2022, including with respect to new programs, expanded product lists for existing programs, and expanded regulatory enforcement mechanisms and activity at the federal and provincial/territorial levels. Further, it provides insight into what companies should expect in 2023 and beyond (but is by no means exhaustive).

Table of contents

A. How did programs change in the second half of 2022, and what changes are expected in early 2023 and beyond?

1. Federal
2. British Columbia
3. Alberta
4. Ontario
5. Quebec
6. New Brunswick
7. Prince Edward Island
8. Yukon
9. Northwest Territories

B. Next steps

A. How did programs change in the second half of 2022, and what changes are expected in early 2023 and beyond?

1. Federal

2022

• On August 17, 2022, the Canadian Council of Ministers of the Environment ("CCME") published a guidance document to facilitate consistent EPR policies for plastics.^[1] The guidance document calls for greater consistency in EPR policies with regard to definitions, roles and responsibilities of key players, program accessibility, targets, and ways to measure program performance.
• In October 2022, Circular Materials - a national not-for-profit producer responsibility organization - published their revised Guidebook for Stewards, which includes updated product definitions, procedures for determining obligated stewards, and updated examples and reporting tips.^[2]

2023

• On January 1, 2023, Call2Recycle's latest Environmental Handling Fee ("EHF") Product Guide^[3] and Environmental Handling Fees Schedule^[4] for batteries took effect. The Guide is intended to assist members in identifying program products and the associated EHFs for the Call2Recycle Canada battery stewardship programs for BC, Saskatchewan, Manitoba, Ontario, Quebec, and PEI.^[5] The updated Guide includes a new fee schedule for Quebec, reflecting a reduction in EHFs for AA primary batteries and certain batteries sold within products.^[6] EHFs now also apply in Quebec for small sealed lead acid batteries over 500g and less than 5KG.^[7] Additionally, a new EHF was applied to e-bikes in BC.^[8]
• On January 3, 2023, the Electronic Products Recycling Association (the "EPRA") published the latest Steward Update for manufacturers, retailers, distributors, and other suppliers of regulated electronic products in, or into, any one of the provinces in Canada with provincial EPR regulations.^[9] The update outlines changes in product definitions, fees, and clarification protocols relevant to provincial EPR programs.^[10] The EPRA currently manages government-approved programs for electronic products in BC, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, PEI, New Brunswick, and Newfoundland and Labrador.^[11]

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2. British Columbia

2022

• In September 2022, Recycle BC published its draft Packaging and Paper Product Extended Producer Responsibility Plan for stakeholder feedback.^[12] The Plan, which is renewed every five years, outlines Recycle BC's objectives, commitments, and performance targets and acts as Recycle BC's operational roadmap for discharging its producer members' obligations under the Recycling Regulation.^[13] Recycle BC conducted a public consultation process on the draft Plan between October and December 2022.

2023

• As of January 1, 2023, Schedule 5 of British Columbia's Recycling Regulation^[14] was expanded to add "packaging-like" and "single-use" products.^[15] Both packaging-like and single-use products are included if they would be ordinarily disposed of after a single use or short-term use, regardless of whether they could be re-used or not.^[16] This refers to products that are used and re-used for a short period of time, typically less than five years, before being disposed of or reaching the end of their useful lifespan.^[17]

Packaging-like products include items such as disposable food storage bags, wraps, and containers, cardboard moving boxes, and plastic plant pots.^[18] Single-use products include items such as straws, stir sticks, utensils, plates, bowls, cups, and party supplies.^[19]

• Starting February 1, 2023, electric staplers, hole punchers, pencil sharpeners and paper shredders are captured by the "Sports, Leisure, Arts, Crafts, Hobby Devices" product category of the Canadian Electrical Stewardship Association's small appliance recycling program, which operates in BC.^[20]

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3. Alberta

2022

• On November 30, 2022, Alberta's new Extended Producer Responsibility Regulation^[21] came into force. The Regulation is similar to that of other jurisdictions such as BC and Ontario, and creates an EPR framework for certain products that end up in the residential waste stream. The framework implements EPR systems for two categories of products:

1. Single-use products and packaging and printed paper: designated products include paper, plastics, metal, and glass; and
2. Hazardous and special products: designated products include consumer-sized solid, liquid, and gaseous products that are flammable, corrosive, and toxic, including batteries and pesticides.

These new systems will not include products already captured by a provincially-regulated recycling program in Alberta.

Like EPR programs in other jurisdictions, producers will be fully responsible, both financially and operationally, for the collection and management of designated products after consumer use. Producers will also be responsible for collection services, achieving performance standards, and educating Albertans on the new regime.

Recognizing that producers will need time to develop and implement EPR systems, the Government of Alberta has set a deadline of April 1, 2024 for producers to provide verification of collection and management plans and a deadline of April 1, 2025 for EPR systems to be operational. The Government of Alberta has published EPR information for producers here.^[22]

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4. Ontario

2022

• On September 7, 2022, the Resource Productivity & Recovery Authority (the "RPRA") issued a notice stating that Call2Recycle had been unable to demonstrate a compliant collection system for batteries in Ontario as required under Part III of the Batteries Regulation.^[23] Accordingly, battery producers relying on Call2Recycle as their producer responsibility organization were out of compliance with the Batteries Regulation, and were required to provide the RPRA with a corrective action plan outlining the process to establish a compliant collection system.^[24] The corrective action plan was required to bring the battery collection system into compliance by September 30, 2022.
• On October 18, 2022, RPRA released its 2023 Business Plan, which details the RPRA's strategic priorities, objectives and performance measures, the key activities planned, and the human and financial resources it will need to deliver on its mandate during the 2023-2025 planning period.^[25] The activities described in the plan are derived from the RPRA's statutory mandate and the directions received to date from Ontario's Minister of the Environment, Conservation and Parks.^[26] This is the RPRA's seventh business plan since it was established in November 2016.^[27]
• On October 27, 2022, the RPRA issued a notice to all battery producers with management requirements advising that they were out of compliance with section 14 (Management of batteries) of the Batteries Regulation^[28], which, among other things, requires producers to use processors registered with the RPRA to meet their resource recovery requirements.^[29] Unless a processor is subject to the small processor registration exemption, producers (or producer responsibility organizations on their behalf) can only rely on the following battery processors registered with RPRA to meet their 2020, 2021 and 2022 management requirements:^[30]

1. Battery Solutions LLC;
2. Laurentide Re-Sources Inc – as of October 26, 2022;
3. Li-Cycle Corp;
4. Raw Materials Company Inc.; and
5. Retriev Technologies Ltd.

To ensure compliance, producers were required to submit information regarding their current used batteries management system and used batteries tonnage to the RPRA on several dates in November 2022.^[31]

• On December 9, 2022, the Batteries Regulation^[32] was amended to clarify the roles of volunteer organizations and producer responsibility organizations, and to clarify the public education requirements regarding resource recovery charges.^[33] For example, every battery producer and person who markets batteries must provide information to the public on "how the charge will be used to collect, reduce, reuse, recycle and recover batteries." The amended Regulation also clarifies that producer responsibility organizations have shared liability with producers for certain aspects of the regulation, such as establishing the collection network and ensuring batteries collected are managed properly.^[34] The majority of these amendments came into force on December 9, 2022, while others, including the requirements surrounding resource recovery charges, came into force on January 1, 2023.^[35]
• On December 9, 2022, the Electrical and Electronic Equipment Regulation^[36] was amended to clarify the roles of volunteer organizations and producer responsibility organizations, and to clarify the public education requirements regarding resource recovery charges.^[37] For example, every electrical and electrical equipment ("EEE") producer and person who markets EEE must provide information to the public on "how the charge will be used to collect, reduce, reuse, recycle and recover EEE." The amendments also update the "producer agreement" provisions to clarify that producer responsibility organizations have shared liability with producers for certain aspects of the regulation, such as establishing the collection network and ensuring EEE collected is managed properly.^[38] The majority of these amendments came into force on December 9, 2022, while others, including the requirements surrounding resource recovery charges, came into force on January 1, 2023.^[39]
• On December 9, 2022, the Tires Regulation^[40] was amended. Key changes to the Regulation include removal of the audit requirement and replacement with an internal verification process, removal of reporting and audit requirements for visible fees, reduction of management audits from annually to once every three years, amendment of the small producer exemption to require just record keeping instead of registration and reporting, update of the producer hierarchy to replace Ontario brand holders with Canadian brand holders (thereby reducing the number of obligated parties), and clarification that producer responsibility organizations have shared liability with producers for certain aspects of the Regulation, such as establishing the collection network and ensuring tires collected are managed properly.^[41] The majority of these amendments came into force on December 9, 2022, while others came into force on January 1, 2023.^[42]

2023

• On November 15, 2022, the RPRA's Hazardous Waste Program Registry opened for generators, carriers, and receivers of industrial hazardous or liquid waste to set up accounts in preparation for meeting reporting requirements that recently came into effect.^[43] Beginning January 1, 2023, obligated parties are required to report on waste management activities, including manifesting, through the online Registry. The new Registry allows a generator to delegate reporting and fee payment and provides the option for bulk data transfers in order to support high volume manifesting.^[44] The Ministry of the Environment, Conservation and Parks has updated the Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste to align with these regulatory changes.^[45]
• On January 1, 2023, Ontario's new Administrative Penalties Regulation^[46] came into effect.^[47] The new Regulation gives the RPRA the power to issue monetary penalties to obligated parties non-compliant with the Resource Recovery and Circular Economy Act^[48] and its associated regulations.^[49] This Regulation is intended to support and strengthen the RPRA's enforcement tools to help ensure that producers, manufacturers, and importers of tires, batteries, EEE, blue box materials, and hazardous and special products comply with the requirements for the collection and end-of-life management of the materials they supply in Ontario.^[50] Under the Regulation, all administrative penalties issued will be posted to the RPRA's public website,^[51] and the RPRA will report annually to the Minister and the public on the use of revenue from the administrative penalties.^[52] The RPRA has stated that it will publicly consult in 2023 on how administrative penalties collected by the RPRA will be used.^[53]
• As of January 1, 2023, lighting producers in Ontario are individually accountable and financially responsible for collecting and reusing, refurbishing, or recycling their products when consumers discard them, pursuant to the Electrical and Electronic Equipment Regulation.^[54] Lighting producers are now required to establish and operate a collection system for lighting, and establish and operate a system for managing used lighting.^[55] Lighting producers must also register with RPRA through the digital Registry, pay RPRA's annual program fees, and submit lighting supply data and information about their collection network.^[56]
• Starting July 1, 2023, Ontario will begin transferring responsibility for providing blue box services from municipalities, local services boards, and First Nations to producers of blue box materials.^[57] This transition will continue between July 1, 2023 and December 31, 2025. As of July 1, 2023, blue box producers will become fully accountable and financially responsible for collecting and recycling their blue box materials when consumers discard them. The new blue box program will be overseen by the RPRA. Stewardship Ontario will continue to oversee the current blue box program until the end of the transition period, after which it will be wound up as an organization. Obligated companies should be aware that during the transition period, they will temporarily have obligations to both Stewardship Ontario and the RPRA.

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5. Quebec

2022

• On October 24, 2022, two management organizations were designated by Recyc-Québec as part of the modernization of the deposit, packaging, and printed matter collection systems.^[58] The Quebec Association for the Recovery of Beverage Containers will now be in charge of the deposit system, and Éco Entreprises Québec will now be responsible for the packaging and printed matter system.

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6. New Brunswick

2022

• Effective October 24, 2022, New Brunswick amended the Designated Materials Regulation^[59] to include pharmaceutical products and medical sharps as designated materials for the purposes of section 22.1 of the Clean Environment Act.^[60]
• On November 2, 2022, Recycle NB released an update on New Brunswick's incoming packaging and paper product EPR program.^[61] In early 2022, the Government of New Brunswick amended the Designated Materials Regulation^[62] to include an EPR program for packaging and paper products. Over the past year, brand owners have had to register with Recycle NB, as well as prepare a stewardship plan that had to be submitted by the deadline of October 14, 2022.^[63] In the update, Recycle NB advised that a stewardship plan has been submitted and Recycle NB is now preparing feedback.^[64]

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7. Prince Edward Island

2022

• PEI is now the first province in Atlantic Canada with a regulated EPR program for agricultural plastics.^[65] On December 1, 2022, the Agricultural Plastic Product – Product Stewardship Program came into effect.^[66] Companies that supply pesticides, fertilizers, seed and other items like silage plastics, bale wrap, and grain bags to farmers in the province must now develop a product stewardship program or appoint an agent to operate such a program on their behalf.^[67] The Program will be managed by Cleanfarms, which operates voluntary and/or regulated programs in all ten provinces.^[68]

8. Yukon

2023

• Yukon has committed to developing an EPR regulation by 2025, with three priority product categories:^[69]

1. printed paper and packaging;
2. household hazardous waste; and
3. automotive wastes, such as waste oil and waste antifreeze and their containers.

The Government of Yukon is hosting a number of online public information sessions throughout January 2023, and is soliciting feedback through a public survey and written responses via email until January 27, 2023.^[70]

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9. Northwest Territories

2023

• NWT is proposing amendments to the Waste Reduction and Recovery Act^[71] that would, among other things, enable the government of NWT to establish EPR programs and clarify Environment Fund contribution, disbursement, and administration requirements to avoid conflict with EPR programs.^[72] The Government of NWT solicited feedback about the proposed amendments between December 1, 2022 and January 4, 2023, and intends to publish a summary of what they heard in January or February of 2023.^[73]

Next steps

As highlighted above, companies should be cognizant of the many changes that took effect in 2022 and will take place in 2023, including the new EPR program in Alberta and new enforcement powers in Ontario.

Gowling WLG will continue to monitor the evolution of product stewardship and EPR programs in Canada and publish bi-annual updates of important changes. If you have questions about your company's obligations under these programs, we encourage you to contact any member of our experienced environmental law team.