Provincial governments (and non-governmental agencies) have been busy implementing various innovative waste management programs to divert waste away from landfills. In 2021, important changes were implemented across all product categories, including tires, batteries, electronic products, packaging and printed paper, beverage containers, and hazardous and special products. Key changes 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 extended producer responsibility ("EPR") models, and iv) expanded regulatory enforcement mechanisms and activity.
Now more than ever, companies must stay on top of their obligations, as the consequences of non-compliance affect consumer perception and can result in direct financial consequences. For example, in December 2021 a Saskatchewan tire retailer was ordered to pay $217,000 in unremitted tire recycling fees, close to $7,000 in accounting fees (associated with the investigation) and a $1,400 fine.
In this article, we provide: A) a primer on product stewardship and EPR and B) a snapshot of key changes that occurred in 2021, as well as what to expect for 2022 and beyond.
A. What are product stewardship and EPR programs?
Canadian provinces have primarily focused on two types of waste diversion programs: EPR and product stewardship. These programs capture a wide range of products and packaging.
An important feature of these programs is that they shift responsibility for product waste away from governments and consumers and onto the producers of the products themselves, to varying degrees. As a result of these programs, producers are responsible for reporting and funding (in part or in full) the management of product waste.
Though often used interchangeably, there are important policy and financial differences between EPR and stewardship programs. EPR programs place full responsibility and costs onto producers whereas stewardship programs are partially funded by government or consumer-paid environmental fees. EPR programs are becoming increasingly common in Canada, because they incentivize producers to reduce their waste footprint.
B. How did Canadian programs change in 2021, and what changes are expected in 2022 and beyond?
- On June 29, 2021, Tire Stewardship BC announced its next Five-Year EPR Draft Plan. Public feedback closed on August 13, 2021.
2022 and beyond
- The BC government has released the Extended Producer Responsibility Five-Year Action Plan 2021-2026 which proposes changes to the Recycling Regulation. The amended regulations are not yet in force, but they intend to require producers of designated products to take full responsibility for the lifecycle of their products, including collection and recycling. The amended regulations will also broaden the scope of items captured.
- The BC government has proposed amendments to the Hazardous Waste Regulation to better support the collection and diversion of moderate-risk wastes and EPR in BC. The BC government expressed its intention to draft the new regulation and necessary amendments after the comment period for its Intention Paper closed on July 30, 2021.
- On February 1, 2022, an amendment to BC's Recycling Regulation takes effect to amend the definition of "beverage" in order to capture previously-excluded milk and plant-based milk beverage containers in the deposit-refund system.
- On September 1, 2021, the Alberta Recycling Management Authority completed the first year of a two-year pilot project expanding the list of electronic equipment that can be recycled. The new categories include: small appliances, audio visual equipment, games, toys and music, power tools, telecom equipment, lawn and garden equipment, and residential solar panels.
2022 and beyond
- On December 2, 2021, the Alberta government passed the Environmental Protection and Enhancement Amendment Act, which implements an EPR framework for Alberta and creates provincial systems for managing single-use plastics, packaging and paper products, and hazardous and special products (like household pesticides and solvents).
2022 and beyond
- Consultations on a discussion paper regarding the Household Packaging and Paper Stewardship Program Regulations recently ended. The province is now developing a regulatory framework to manage a transition to a full EPR model.
- On January 1, 2021, Ontario electronic and lighting producers became individually accountable and financially responsible for collecting and reusing, refurbishing, or recycling their electronic and lighting products when consumers discard them. Producers were required to register with the Resource Productivity and Recovery Authority ("RPRA") by January 31, 2021. These changes follow the dissolution of the Ontario Electronic Stewardship agency, which occurred on December 31, 2020. The RPRA is the new Producer Responsibility Organization for electronic and lighting products in Ontario.
- On June 3, 2021, the Ontario government finalized the Blue Box Regulation. The new Blue Box Program will replace the current Stewardship Ontario Blue Box Program, with the transition occurring between July 1, 2023 and December 31, 2025. The new Blue Box Program is operated by the RPRA and will transition community blue box services, which cover household packaging and printed paper items, to an independent producer responsibility system. This new system will make producers responsible for funding and managing the entire life-cycle of their products, including their collection and recycling. Stewardship Ontario will manage the transition.
- On July 1, 2021, Ontario's Hazardous and Special Products Regulation ("HSP Regulation") came into force. The HSP Regulation initiates a transition to an EPR model for hazardous and special products, overseen by the RPRA. The previous program ended on September 30, 2021.
- On November 3, 2021, the RPRA released its revised Tire Performance Audit Procedure, which is used to verify the tire collection and management performance data that tire producers are required to submit annually.
2022 and beyond
- The Ontario government is proposing two new amendments to the Resource Recovery and Circular Economy Act, 2016:
- The first proposed regulation would allow the RPRA to issue administrative penalties for violations of the Resource Recovery and Circular Economy Act, 2016. The proposed changes, if implemented, will empower the RPRA to issue administrative penalties to producers who are non-compliant with requirements for the collection and end-of-life management of materials they supply in Ontario. This proposed regulation is not yet in effect, but may move forward in 2022.
- The second proposed amendment would amend the producer responsibility regulations for tires, batteries, and electrical and electronic equipment. These changes would "reduce and/or remove certain burdens, correct market issues, increase transparency, align administrative and technical provisions between the regulations and remove outdated provisions." The proposed amendments are not yet in effect, and comments in the consultation process were due January 10, 2022.
- Stewardship Ontario is consulting on a proposal to simplify the steward fee-setting methodology for the Blue Box Program transition period between 2023 and 2025. The proposed simplified methodology would eliminate the need for producers to report supply-to-market data to Stewardship Ontario starting in 2022. The RPRA will undertake its own consultation in early 2022.
- Hazardous and special products producers are required to submit their 2022 Interim Report to the RPRA by January 31, 2022. The report must include information about collection services provided and the processors, haulers, and disposal facilities that are part of the collection and management system. Producers can enlist the services of a producer responsibility organization to file this report on their behalf.
2022 and beyond
- On October 13, 2021, the Quebec government proposed significant amendments to the Regulation respecting the recovery and reclamation of products by enterprises under Quebec's Environment Quality Act. The proposal is still in draft form, but proposed changes include the addition of batteries as products subject to the regulation and the postponement of and changes to the minimum recovery rates applicable to products covered by the regulation.
- On October 14, 2021, amendments to New Brunswick's Designated Materials Regulation were approved. They mandate the creation of an EPR program for packaging and paper products. Brand owners must now register with Recycle New Brunswick by February 11, 2022.
- On December 17, 2021, the New Brunswick government passed legislation to modernize the province's 30-year-old Beverage Containers Program. The amendment clarifies the definition of "retailer" and "distributor," and requires distributors to submit plans for recycling or refilling beverage containers by February 21, 2022. It also requires distributors to report annually on the effectiveness of such plans.
2022 and beyond
- On October 19, 2021, the Nova Scotia legislature introduced Bill 25, the Extended Producer Responsibility and Paper and Packaging Act. This Bill directs the government to develop and implement an EPR program in Nova Scotia. Consultation is ongoing.
Prince Edward Island
- On August 1, 2021, amendments to the Materials Stewardship and Recycling Regulations came into force. These amendments mean that more products are captured in PEI's electrical and electronics stewardship program, including countertop appliances and personal care appliances.
2022 and beyond
- The Yukon government recently began stakeholder consultation to develop an EPR regulation. Yukon has committed to implementing an EPR program by 2025.
- On October 21, 2021, the Northwest Territories government announced the Electronic and Electrical Products Recycling Pilot Project. A number of communities will now be able to recycle an expanded list of over 500 electronics and electrical products. Over the next two years, the government will use the pilot to assess logistics, the quantity of materials likely to be recycled annually, and associated costs.
C. Next steps
As exemplified by this update, waste diversion programs will continue to evolve and companies must ensure they understand their obligations to maintain compliance. At Gowling WLG, our environmental law team has been monitoring these programs closely and have 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.