Who’s Making the Rules on Global Plastics?

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Written by Jonathan D. Cocker, Baker McKenzie

There is no question that dramatic changes are coming for the supply and reverse supply chain for plastics that will impact packaging, containers, and plastic products. From resins and polymer mixes to ocean plastic clean up and waste export bans and everything in between, it is difficult to not foresee a fundamental regime shift coming for the regulation of plastics globally. But just who decides on these new rules and how will disparate initiatives and goals lead to convergence on legal standards?

EU Plastics Strategy

The first place to start is, of course, the European Union. The broad-reaching 2018 strategy encompasses the landmark 2019 Single Use Plastics Directive, targeting certain commonly disposed products and includes:

  • Bans for a number of single use plastics (cutlery, straws, etc.) where non-plastic alternatives are readily available and affordable;
  • Reduction targets for food containers and cups;
  • Ambitious collection targets of up to 90%;
  • Producer payment obligations to help fund waste management and legacy clean-up costs;
  • Labelling of some plastics, indicating how to waste dispose and alerts as to the negative environmental impacts of plastics; and
  • Consumer awareness campaigns about negative impacts of plastic litter and re-use and waste management options. 

In short, it is a policy mix impacting various parts of the life-cycle. The Plastics Strategy goes further, however, and requires of all plastics:

  • Design of recyclability;
  • Creation of markets for recycled and renewable plastics;
  • Expanding and modernizing EU’s plastics sorting and recycling capacity;
  • Mandating producer-paid initiatives to curb plastic wastes;
  • A regulatory framework for plastics with biodegradable properties; and
  • Coming regulation on microplastics across a number of industries.

This relatively comprehensive set of product and supply chain requirements would apply to both inbound and outbound products, leaving little room for global plastics industry stakeholders to remain untouched by these coming standards.

Ellen MacArthur’s “New Plastics Economy”

What the Ellen MacArthur Foundation lacks in regulatory authority, it more than makes up for in ambition. The seminal publications on a “New Plastics Economy” involves macro-level systems to remake supply/reverse supply chains. Overall, it’s mission is described as follows:

  • Elimination of problematic or unnecessary plastic packaging through redesign, innovation, and new delivery models is a priority;
  • Reuse models are applied where relevant, reducing the need for single-use packaging;
  • All plastic packaging is 100% reusable, recyclable, or compostable;
  • All plastic packaging is reused, recycled, or composted in practice;
  • The use of plastic is fully decoupled from the consumption of finite resources; and
  • All plastic packaging is free of hazardous chemicals, and the health, safety, and rights of all people involved are respected.

The genius of the New Plastics Economy Global Commitment is its multi-stakeholders industry approach, enlisting some of the largest industrials and other stakeholders from across the plastics supply and reverse supply chain to make concrete, shared undertakings, thereby establishing common terms of reference and objective standards by which supply chain parties can systematize their efforts.

They’ve gone further and fostered the growth of “Plastic Pacts” in which countries are to enlist domestic industry to make commitments which exceed EU standards. The reference terms are not, however, entirely consistent, potentially creating future challenges for international industry to adopt a single compliance legal regime where long-term investment under the MacArthur Foundation model isn’t entirely exported into law.

Alliance to End Plastic Waste

January 2019 also saw the creation of the industry-led Alliance to End Plastic Waste, which has committed an astounding $1.5 Billion over the next five years with a mandate to “bring to scale solutions that will minimize and manage plastic waste and promote solutions for used plastics by helping enable a circular economy”.

To date, the Alliance appears to be focused upon funding plastics-relevant waste management projects, principally in Asia, but their heft will, no doubt, be relevant in the overall direction of plastics policy given their petrochemical representation and their planned investments. It remains to be seen when and how they might enter the plastics product design-for-environment field.

Basel Convention

Finally, the newest major entrant in the increasingly crowded field of new plastics standards is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. In addition to the deeming of most plastic wastes as controlled by the environmental and transfer protections built into the Basel Convention effective January 1st, 2021, the May 2019 resolutions also put the organization into the forefront of plastics regulation with some notable initiatives:

  • An expert working group is to be convened to consider whether to expand the categories of plastic wastes which should be classified as “hazardous” under the Convention (many will be simply classified as “other wastes” under the May 2019 resolutions);
  • A “partnership on plastic wastes” is to be convened which will include the (state) parties to the Convention, as well as certain other stakeholders (as either parties or observers) and will:
    • Engage in pilot projects and scaling exercises;
    • Assess best practices, as well as barriers, for the prevention, minimization, and environmentally-sound management of plastic waste movements; and
    • Consider options for increasing durability, reusability, reparability and recyclability of plastics.
  • A mandate to update the current Technical Guidelines which are to be a point of reference of parties’ national and international waste management and recycling standards, including how they relate to plastics.

With these goals, the Basel Convention has gone from a virtual bystander on most plastic waste issues to an aspirant for a central role, with the backing of almost all national governments (notably absent – USA). Further, the Basel Convention has overtly called for collaboration with the United National Environment Program, giving it a further platform to push through multi-lateral action on plastics. Whether the Basel Convention lacks the industry integration to remain relevant in this dynamic market, however, remains to be seen.

Where’s the Convergence?

In looking at these four major global initiatives, what’s most staggering is that they’ve all arisen in the past year, each arguably filling a vacuum on plastics stewardship to which great public animosity was paid.

While each has a somewhat different mandate and maybe all would benefit from each pursuing their own enterprises for now, there will soon be a need for convergence on the fundamentals of future plastics rules, such as permissible plastics types, hazards eliminations, recycled content minimums, environmental attributes, such as “compostable” or “biodegradable”, design for recyclability, usage bans, and reverse supply chain integration.

Without convergent, plastics industry stakeholders won’t find the market stability necessary to make any of these initiatives successful.


About the Author

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

Making Producers Pay – From Stewardship to Innovative EPR Programs in Canada

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Written by Mark Youden and Maya Stano, Associate Lawyers at Gowling WLG

Product and packaging waste is increasingly drawing public attention across the globe. This stems, in part, from a growing awareness of massive plastic pollution accumulation zones in our oceans, government bans of single use plastics, China’s recent import ban on scrap plastics, and news of the Philippines wanting to return Canadian “recyclables.”  In this era, governments are increasingly turning to innovative waste management and diversion policies and laws.

To date, Canada has focused on two approaches for managing products and their packaging at end-of-life: (1) extended producer responsibility or “EPR”, and (2) product stewardship programs. For the most part, these programs (which cover various categories) fall under provincial jurisdiction.    

To varying degrees, these programs shift the end-of-life waste responsibility away from governments (and tax payers) and on to producers (e.g., brand owners, manufacturers and first importers).  Depending on the program, this responsibility includes reporting and funding (at least in part) the management of the waste created by their products.  

Stewardship versus EPR

Although often used interchangeably, there are key policy differences between product stewardship and EPR programs (as well as significant corresponding financial implications for companies). Generally speaking, EPR programs place responsibility (and costs) on product producers, whereas product stewardship programs generally rely on consumer-paid environmental fees or public funds. Although the emphasis in Canada has historically been on product stewardship programs, there is a growing shift towards transforming those initiatives to full-fledged EPR programs. Such EPR programs place full responsibility for designing, operating and financing diversion programs, and accountability for the program’s environmental performance, on producers.  The concept is intended to incentivize companies to not only bear responsibility for, but actually reduce, their product waste footprint (e.g., through recyclable product and packaging innovation).

Status of EPR Programs

Provincial Level

In 2014, British Columbia became the first jurisdiction in Canada to implement an EPR system making producers fully responsible for funding and managing curbside and drop-off recycling programs for packaging and printed paper. Under the province’s Environmental Management Act and Recycling Regulation, producers must recover 75% of the paper and packaging they produce, and face fines if they don’t achieve this target.

Full EPR programs have not yet been implemented in other provinces – some provinces do require producers to pay for part of their recycling, but none outside of BC require producers to manage the actual system. At the local level, municipalities often bear the burden of dealing with urban waste generation, and towns and cities are increasingly expressing support for full EPR implementation to help cover the costs of expensive recycling programs. For example, the City of Calgary recently passed a motion to push the province into looking into EPR programs. 

Similarly, in Ontario producers are required to pay for 50% of the recycling system, but municipalities are actively calling for a full EPR model. In 2016, Ontario passed a groundbreaking bill that instituted an EPR requirement for all product categories. The bill also sought to prevent producers from discharging their liabilities to a third party, thereby making them fully responsible. These efforts culminated in the adoption of several new laws, including the Waste Diversion Transition Act, 2016 (which includes payments to municipalities to cover their costs associated with the blue box recycling program), and the Resource Recovery and Circular Economy Act, 2016 (which led to the development of the Strategy for a Waste-Free Ontario: Building the Circular Economy).

Federal Level

At the federal level, the Canadian Council of Ministers of the Environment began taking action in the late 1990’s in regard to its waste reduction target of 50% of the product waste that is placed into the market. Since 2004, the CCME has published several reports, analyses, studies, tools and progress reports in regard to the Canada-wide Action Plan for Extended Producer Responsibility, with product packaging recognized as a priority in that plan.

International Level

EPR has a long history in Europe, where it has existed in varying forms since 1990. Sweden and Germany led the way by encouraging industries that made and sold products to be responsible for the waste stage of those products. EPR programs subsequently spread to other EU countries and beyond.

Challenges with recycling recently led to the EU’s approval of a law banning 10 types of single-use plastics by 2021 as part of its shift towards a circular economy (which aims to keep resources in use for as long as possible, extract the maximum value from them whilst in use, and recover and regenerate products and materials at the end of each service life). Canadian federal MP Nathan Cullen has recently introduced a private member’s bill, Bill C-429, the Zero Waste Packaging Act, which seeks to follow the EU lead.1 Stay tuned on the progress of those efforts as they evolve here in Canada.

The Spotlight on Product and Packaging Waste

A dispute between the Philippines and Canada has recently drawn attention on Canada’s product and packaging waste system.  In April 2019, the Philippines demanded that Canada take back shipping containers full of waste and recyclable plastics. Canada originally argued that it is not responsible for returning the waste that was shipped. This dispute, spanning over 5 years now, is complicated by obligations under international law (including the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1992).  As threats from the Philippines President escalated in late April 2019, Canada offered to accept and pay for the return of close to 70 shipping containers.Those containers are now on their way back to Canada. 

This international dispute has placed the spotlight on the state of recycling in Canada (as many did not realize Canada ships its waste elsewhere).  This, coupled with the public criticism over the effectiveness of Canada’s recycling regime, could spark local governments to expedite implementation of waste reduction policy and full-EPR programs. 

In summary, EPR and product stewardship programs are here to stay and will increasingly impose significant requirements on product producers.  Our Gowling WLG team has extensive experience in the detailed requirements that must be followed to ensure legal compliance. Should you have any concerns or questions regarding your company’s product stewardship and EPR duties, please contact one of our knowledgeable team members.


1 https://www.parl.ca/DocumentViewer/en/42-1/bill/C-429/first-reading#enH123


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

About the Authors

Mark Youden is an associate lawyer in Gowling WLG’s Vancouver office, practising in the firm’s Environmental and Indigenous Law groups. Mark is called to the bar in British Columbia, Alberta and Ontario and advises a wide range of clients on all aspects of environmental, Indigenous and regulatory law issues.

Prior to studying law, Mark obtained a Master of Science focused on biophysical interactions and the fate of contaminants in terrestrial and aquatic systems. He also worked as an environmental consultant for an international engineering firm.

Mark’s scientific expertise and multidisciplinary approach to the law help him provide clients with practical solutions to complex environmental and Indigenous law matters.

Maya Stano is a Vancouver-based Gowling WLG associate lawyer who practises natural resource, environmental and Indigenous law.

Maya has a wide range of legal experience assisting individuals, companies and Indigenous Nations and other levels of governments on natural resource projects, including mining, forestry, large and small scale hydro projects, oil and gas projects, and nuclear projects. Maya provides timely and effective advice at all stages of project life, from early planning and tenure applications, through construction, operations and final closure, decommissioning and reclamation. Maya’s services cover due diligence matters, permitting (including environmental assessments), land rights (including leases and other land access and tenure agreements), regulatory compliance, and engagement and agreement negotiations between First Nations, the Crown and proponents.

Maya also assists Indigenous Nations in various government-related matters, including drafting laws and bylaws, drafting and implementing trust instruments for sustainable long-term financial management, managing land use and rights on reserve, and working with land codes and other governance matters.

Maya studied law at the University of British Columbia, graduating with a specialization in environmental and natural resource Law. After graduation, Maya clerked at the Federal Court of Canada for the Honourable Mr. Justice John A. O’Keefe. Concurrently, she completed an LLM at the University of Ottawa, focusing on the legal implications associated with lifecycle management of metals.

Maya is also a professional geological engineer and previously worked on mining projects both domestically and abroad, as well as on contaminated sites across British Columbia, and on oil and gas projects in northern Alberta.

Motor Oil Recycling: Barriers and Breakthroughs

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Written by Zachary Gray, B.Eng.Biosci., Chemical Engineering & Bioengineering

Motor oil changes are a sacrament in our car-obsessed modern life, while the mechanics working in the auto shops are their enforcers and evangelizers.  Every 5,000 to 8,000 kilometres, car owners begrudgingly schedule an oil change between busy work days and weekend errands.  

Primer of Motor Oil

During the 20-minute oil-change procedure, mechanics bleed the blackened, viscous motor oil from the bowels of the engine and replace it with pristine liquids from bright plastic packaging – eye-catching to some, but a far cry from the painted metal containers that furnish collector’s shelves.

Vintage Motor Oil Can, $31 (USD) on ebay

While the myriad of car oil brands available might suggest a wide variance in products, they differ only in the precise mixing of additives.  Motor lubricant is essentially 70-80% base oil with the remaining 20-30% consisting of supplements such as antioxidants, detergents, and viscosity enhancers, as well as rust inhibitors.

The quality of the motor oil degrades over time in a motor vehicle.  The build-up of debris blackens the oil, while the additive properties deteriorate over the driving cycle, dissipating heat and lubricating contact points between metal parts with less efficiency as time marches onward.  Water entrainment and oxidation of the base oil are also contributing factors.  

Changing one’s motor oil frequently, as the chorus drones on, ensures the longevity of the engine. One question remains as the mechanics dispense with the last of the used oil: what happens to it afterward?   Nothing much is often the answer. 

Motor Oil Re-refining

There are over 300 million registered vehicles in Canada and the United States alone, contributing to the nearly 2.5 billion gallons of motor oil disposed of annually throughout North America.  Of the almost 60% recovered, a mere 8% is recycled. The remainder feeds the 12 billion of gallons of lubricant reduced to toxic waste yearly.

Catastrophizing about the volumes quoted and their impact is not productive in and of itself.  Exploring ways to improve oil recycling figures is a better use of time.

In 2009, when the revered Scientific American explored whether motor oil could be recycled, the editors profiled Universal Lubricants (“UL”).  The Wichita-based company uses conventional refining techniques from upgrading crude oil when recovering the spent lubricant.  They essentially re-refine the used motor oil

UL processes over 45.4 million litres of used motor oil, or 28,600 barrels, per day.  In the re-refining process, used oil passes through a vacuum distillation unit which removes water from the base oil, accounting for 5-7% of the incoming volume. Next, contaminants are removed using an evaporation press.  In the final step, UL hydrotreats the decontaminated oil. 

Hydrotreating consists of applying high temperature and pressure (700 deg-F and 1,100 PSI) and enriching the carbon-backbone of the oil with hydrogen molecules in the presence of catalysts that aid in the chemical reactions. 

The final product resembles base oil, ready for lubricant merchants to add their additive concoctions and branding power.

Photo Credit: UL

Re-refining efforts, much like those by UL, accounts for only 10 percent of used oil management market.  The majority of used motor oil is either burned or dumped, depending on the jurisdiction and level of enforcement.  The emergence of re-refining technologies has done little in altering the outcome for spent motor oil — but why?

Barriers to Recycling

There are two main barriers to a broader adaptation of re-refining used motor oil.  The first is the capital expense in building and operating a facility on UL’s scale.  Investors should expect a final bill of tens of millions of dollars in replicating UL’s plant in Canada.  Recovering their investment is another issue: refineries derive their profits either from large volumes, amplifying small gains per unit of measurement, or upgrading cheaper base stocks.  With respect to the latter point, one could argue that the used motor oil would be a commodity instead of merely a waste product with broader market adaptation.  Such a classification diminishes the facility’s economic viability.

The second barrier to re-refining is the plant’s environmental impact.  A re-refiner has a similar environmental impact as an oil refinery.  To understand how difficult it is to get environmental approval for an oil refinery, one need to realize that the newest oil refinery in Canada is over 30 years old.

Canadian Innovation

Besides re-refining, there are innovative and arguably more feasible solutions for recycling motor oil in development.  The Ottawa-based MemPore Environmental Technologies Inc. (“MemPore”) is one such example, scaling their locally-minded, membrane-based process.

MemPore’s solution is this: the used motor oil is kept in 5,000-gallon settling tanks and periodically shipped to their regionally-based operation.  The central locations reduce the amount of pollution from transporting oil over longer distances and eases logistical challenges.  After removing contaminants during the pretreatment process, consisting of a filter, centrifuge, and flash evaporators, the oil is sent to the membrane unit.  Once polished to a quality consistent with a regular base oil, lubricant mixers take the final product and infuse it with their additives.

Cement kilns take the waste sludge separated by the membrane. The 15 metric tonnes, or 148 barrels, per day system operates at low temperatures and pressures, thus reducing its running costs and environmental impact.

Mempore Used Oil Recycling System

Alastair Samson, MemPore’s CEO, eloquently summarizes the company’s position and value proposition:

“The MemPore System can, for the first time, recover and recycle this base oil with 71% reduction in pollution, from localized systems, using low energy, and at low capital and operating cost. This is an important contribution to the clean technology movement and the preservation of earth’s natural resources.”

MemPore’s community-centric and scalable solution, with the potential for handsome profit margins, offers a tangible solution to the endemic squandering of used motor oil.  They also provide the mechanics a new hymn during drivers’ reluctant excursion to the auto body shop.

Windsor-Essex Recycling Success Story

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The Essex-Windsor Solid Waste Authority (EWSWA) is one of the few municipalities in North America that has had minimal impact from the recycled material bans issued in Asia. The secret to its success is due to dealing exclusively with North American processors.

The EWSWA is the governmental agency charged with the responsibility of providing an integrated solid waste management system for the County of Essex and the City of Windsor in Ontario. Windsor is directly across the Detroit River from the City of Detroit. The City of Windsor and County of Essex has a combined population of 393,000.

The Authority generates revenue through the sale of recyclable materials. The more materials recycled – the more revenue there is to offset the waste management system costs.

In an interview with the CBC, Cathy Copot-Nepsy, the EWSWA manager of waste diversion, stated, “EWSWA has been working strategically for years to get established in the domestic market. [This] has allowed us to be one step ahead of all the other recycling plants who have been sending it overseas.”

In the CBC interview, Ms. Copot-Nepsy did admit the EWSWA was not entirely insulated from the Asian ban on recyclables. With more North American municipalities looking for local processors of recyclables, an over saturated domestic market has meant that EWSWA had to reduce the contaminants in the recyclables it sold to processors.

The residential recycling program in Essex Windsor is two stream – container materials and paper materials. Every recycling truck has two compartments (one for containers and one for paper). The materials are delivered to two different facilities (one building for containers and another building for paper).

EWSWA is expanding it public education program to reduce contamination of the recyclables that are received at the material recycling facilities (MRFs). It has also added an optical sorter at its fibre plant.

https://www.cbc.ca/news/canada/windsor/municipalities-recycling-windsor-step-1.5092863

Innovative company fueling greener steel from Wood Waste

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Ontario-based CHAR Technologies is developing cost-effective and efficient alternative fuels that help manufacturers drastically reduce greenhouse gas emissions (GHGs), all while adding value to otherwise wasted resources. Andrew White is CEO of CHAR Technologies Ltd., an innovative Toronto-based cleantech company specializing in biocarbon fuel development and provides custom equipment for industrial air and water treatment, environmental management services, site investigation and remediation and resource efficiency.

Mr. White began developing their first product, SulfaCHAR, while he was a grad student at the University of Toronto (U of T). SulfaCHAR is a patented form of activated biochar that removes hydrogen sulfide from renewable natural gas the same way a Brita® water filter removes contaminants from tap water, leaving behind a clean biogas that can be used for multiple energy applications.

The feedstock used in the production of SulfaCHAR is anaerobic digestate and/or compost.  Production of SulfaCHAR is achieved by pyrolysis under patented conditions that include specific hold times, temperatures, and conditions.  Currently, there is a SulfaCHAR production facility co-located at the Stormfisher Environmental biogas facility in London, Ontario.

CHAR Technologies’ next challenge is to develop a product it calls CleanFyre, a solid biofuel intended to replace traditional coal. On a fundamental level, CleanFyre is produced through pyrolysis, the same process that has been used to turn wood into charcoal since ancient times. “In pyrolysis, you have a bio-based material that you heat up in the absence of oxygen,” explains Devon Barry, Char Technologies’ Biocarbon Manager. “Since there is no oxygen, the organic material does not combust but instead the chemical compounds that make up the material decompose into combustible gases and charcoal.”

As we all know, burning coal proliferates GHGs, and unfortunately, a commercially viable solution that produces high enough energy levels to replace coal in many manufacturing processes, such as iron making, doesn’t exist yet. However, CHAR Technologies believes it can offer a solution to address the need for a high carbon, low ash coal replacement as an energy and reactant source.

The feedstock in the production of Cleanfyre is currently clean wood and waste wood. Other biomass materials are also being testing. The use of wood and biomass in the production the CleanFyre is considered carbon neutral as the source material is renewable.

ArcelorMittal Dofasco is Canada’s largest flat roll steel producer based in Hamilton, Ontario. In 2017, the steelmaker approached one of Ontario’s regional innovation centres, the Ontario Centres of Excellence (OCE), looking for a cost-effective alternative fuel for their blast furnaces that would reduce GHGs.

Andrew White, CEO, CHAR Technologies

“There was nothing that could generate the high levels of carbon and energy needed for steel production,” says White, who has now been meeting with ArcelorMittal Dofasco for 18 months. CHAR Technologies is piloting their CleanFyre energy fuel product through this Ontario-based collaboration, with an eye on opening up a market estimated at $340 million in Ontario alone.

ArcelorMittal Dofasco has active plans towards an initial 20 tonne trial of CleanFyre in their blast furnaces, with the potential to scale-up once they confirm the fuel’s effectiveness. The major advantage of CHAR Technologies’ solution is ‘simplicity,’ says White. “There are no major modifications required for the iron making process; we’re striving towards a ‘drop-in’ solid biofuel.”

Ongoing research at the University of Toronto will be key to CleanFyre’s success. “We are working with researchers at the University of Toronto on some very innovative ways to drastically reduce the ash content, which will allow us to expand our feed stocks to low value ‘wastes’ that have valuable low GHG carbon that’s otherwise inaccessible.”

This article is an edited version from the one posted on the InvestOntario website.

Dressing the problem: Textile Waste in Canada

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By Zachary Gray, B.Eng. Biosci., Chemical & Bioengineering

Canadians dispense with their frayed, used clothing by the millions of tons each year.  Good Samaritans flood noble ventures, including the Salvation Army Thrift Stores and Goodwill Services, with their worn textiles, while some consumers exchange their threads for in-store vouchers with fast fashion lines, such as H&M, keeping their closets and racks well stocked.  The hope is that these used clothes will be recycled or given a second lease on life, inspiring joy in another person that only an excellent pair of second-hand jeans can.  The reality, however, is bleaker.  For convenience, many will deposit their clothes in the trash, while only a fraction of the donated items will find their way onto other people’s backs, while another minuscule sum replenishes the country’s supply of polishing cloths and carpet fibres.  Most of the time, the used garments are landfilled.  Therein lays the problem — and the opportunity — for recycling textiles in Canada.

The Current Situation

Textile recycling in Canada is in need of resuscitation: The country’s current trajectory is as environmentally damaging as it poorly understood.  For context, landfilling claims 85% of the wearable textiles and 99% of non-wearable ones, such as shoes and towels. The thoughtful donations and in-store voucher trade-ins, packaged in bulk and either sold in local thrift shops or abroad are usually of poor quality and are promptly thrown out.  African countries, such as Kenya, where an estimated 80% of the population wear second-hand clothing were once popular destinations for Canadian’s used clothing.  They are now imposing steep tariffs to curb the increasing amount of textile waste imported and thrown almost immediately into their landfills.  What is more, recycling used clothing has been a technically challenging and economically ruinous venture, at least up until this point in time.  In sum, either directly or not, the average Canadian tosses away some 37 kilograms of textiles per annum.

Textile Bans and Environmental Impacts

The cities of Markham, ON and Brandon, MB banned textiles from their respective garbage collections in an attempt to curb higher volumes of fabric from further occupying landfill space.  Vancouver, BC is weighing a similar decision.  

However, the problem continues to grow as consumption levels climb, and the consequences are farther reaching than landfill occupancy and degradation by-products.  Clothing production doubled worldwide between the years 2000 and 2014, while consumers purchase 60% more textile products and keep them for half the time.  For context, the average Canadian now buys 72 textiles items annually.  

As Canadians’ tastes for textiles increases, so too are the demands on its supply chain, placing further stress on sourcing raw materials as well as water and power consumption.  Textile fibres spun and manufactured from crops, such as cotton and hemp, and synthetics, including acrylics, nylons, and polyesters, each has its own carbon footprint.  For example, polyesters generate 9.52 kg-CO2 for every ton made, while conventionally farmed, non-organic, cotton and hemp produce 5.09 and 4.05, respectively.  

Image courtesy of Waste Reduction Week in Canada.

There are additional environmental costs in manufacturing synthetic fibres. For instance, processes making nylon products emit significant quantities of nitrous oxides, which are approximately 300 times worse in terms of their greenhouse gas potency.  The electricity demands placed on the power grid for processing the textile fibres are immense.  Spinning, knitting, and weaving are all energy-intensive steps, as are driving a facility’s air conditioning systems, pumps, and compressors.  Analysts estimate that the textile business consumes one trillion kilowatt hours annually worldwide.  

The water consumed, and often treated with dyes and other chemicals, in making textiles is commensurately high.  In illustrating the point, a single cotton shirt uses 2,700 litres of water while a pair of jeans uses 6,800.  A World Bank reported estimated that textile manufacturing accounts for 17-20% of the industrial water pollution globally.  

This tallying of textile’s environmental impacts does not include the considerable land requirements both for production, but more importantly, disposal, nor the industry’s complex socioeconomic, possibly exploitive, relationship with labour forces, many of whom are women in developing countries.  Given the high demands placed on energy production and commodities, as well as the vast sums overrunning landfills, Canadians’ relationship with textiles is unsustainable and needs readjustment.

Change is Happening

A paradigm shift leveraging multiple strategies can help Canadian reorient their increasing demands for textiles.  Encouraging changes in consumer habits and possibly embracing new recycling technologies are two options.

Canadians recycle approximately 15% of wearable and 1% of non-wearable textiles each year.  Polishing and cleaning cloths account for 20% of the amount recovered, while fibre insulations claim another 26%.  

Innovative Companies

Canadian Textile Recycling Ltd. based in Burlington, Ontario is an example of a start-up business furthering the cause of textile recycling.  They are perfecting their WOOLTEX sorting system, adeptly refashioning used clothes into cleaning cloths and shipping reusable items abroad.  Theoretically, the majority of textiles are recyclable or reusable, but neither has been economical.  Together blended cotton, composed mostly of bleached cellulose, and polyester fibres are worth little, but invaluable separately.  Thermally separating complex fibre blends have been economically infeasible until recently.

Several new ventures are focusing on textile recycling.  The UK-based Worn Again Technologies secured investment of $8.8 million for scaling their textile decontamination and polyester extraction platform solution.  The start-up’s brain trust from the University of Cambridge believes there are enough textiles and plastic water bottles in circulation to supply various industries’ raw material needs.

Purified cotton waste garments are shredded and then extruded into a fibre for reuse in new clothing

The Seattle-based Evrnu is another ascending textile recycling start-up.  Their technology regenerates fibres at the molecular level suitable for new manufacturing. Evrnu recently secured venture capital financing from the Closed Loop Cycle Fund, a heavyweight in the clean-technology investment space, in recognition — and hope — for their company’s economic viability.
Levi Strauss & Co. sells the world’s blue jeans made from regenerated post-consumer cotton waste fibres from Evrnu.

Outside of clothing, Quebec’s Victor Innovatex’s Eco Intelligent Polyester (“EIP”) is a cradle-to-cradle furniture textile made from recycled plastics.  The company estimates that their EIP textile, generated using their antimony-free catalyst technology, reduces greenhouse gas emissions by 80% in comparison to using virgin polyesters while creating a sustainable product ecosystem.

Adjusting consumer behaviour throughout the cycle of buying, wearing, and disposing can have a significant impact.  Part of the problem is fast fashion brands making inexpensive, easily disposable garments that are difficult to repair and even harder to recycle due to their poor quality.  There is a correlation between the rise of fast fashion and the growth of the middle-class and their incomes, negating the argument that purchasing higher quality items is out of reach for most consumers.  Consumers’ dollars are pushing the market, not the other way around.  The British government recently announced that they are considering a tax on fast fashion items, with the hope of dampening consumer activity in that market segment.

Aside from choosing higher-quality clothing, selecting brands that purposefully reduce waste is additionally beneficial.  Picking designers with zero waste, such as the St. James brand from Queen’s, NY, also helps.  The Toronto-based twins Alex and Lindsay Lorusso have taken the concept of zero waste clothing a step further with Nudnik, their fashion line for children.  Nudnik makes fun and affordable apparel from other clothing manufacturers’ scraps and discarded fragments, essentially making the brand negative-waste. Nudnik and St. James’s concepts are forward-thinking and straightforward, yet they too shall eventually go.

Nudnik t-shirt made entirely from off-cut fabrics and end-of-roll threads 

While vast sums of donated clothing find their way to the landfill, many people throw their old clothes away instead of letting a charitable organization or recycling service evaluate them.  The fact remains that considerable volumes of trash-destined textiles are reusable.  The reasons are many, but one in particular is that donation bins in larger urban centres are sparse.  Vancouver’s Revify is addressing bin scarcity in their city by partnering with high-rise condominiums and eliminating the convenience factor of filing away old clothing in the trash.  Recycling can happen in other ways, too.  Community-wide clothing swaps and drives are also viable strategies in furthering one’s original purchases: someone else can enjoy them; this tactic applies to other textiles as well.

Textile waste is an issue we wear, sleep with, and have little concept of.  Canadians are less able to export the problem as it consumes land, resources, and money.  And while a magic bullet solution for textile recycling is a lovely idea, most technologies are in their infancy; people must rethink their relationship with clothes and fabric during the interim period of unwittingly purgatorial proportions — if only they knew.

About the Author

Zachary Gray graduated from McMaster University with a bachelor’s degree in Chemical Engineering & Bioengineering.  He has worked with several early-stage cleantech and agri-industrial companies since completing his studies, while remaining an active member of his community.  He is enthusiastic about topics that combine innovation, entrepreneurism, and social impact.

Recycled Content Standards for Plastic Products Coming?

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by Jonathan Cocker, Baker Mckenzie

The attention currently devoted to plastics waste in both the public and private sectors is breathtaking. A growing number of international brands have made recycled content commitments for their plastic packaging and related containers. The European Union’s Strategy for Plastics in a Circular Economy has begun implementing changes to the EU Packaging and Packaging Waste Directive and the UK Department of Agriculture, Environment and Rural Affairs (DAERA) has just released a well-developed plastics packaging taxation proposal that is currently under public consultation. The plans for plastic packaging are open and notorious.

Less obvious has been the regulatory direction for plastic products. An increasing number of consumer goods companies are promoting products with some plastic (or even ocean plastic) waste content, though there are no common standards by which these claims can be measured. The EU has committed to some limited prohibitions on single use plastics (read: knives and forks) and has called for voluntary member commitments to grow markets for recycled plastics in its Strategy. The G7 Oceans Plastic Charter includes, an aspirational 2030 member goal of “working with industry towards increasing recycled content by at least 50% in plastic products where applicable”.

The dramatic reduction of overseas markets, including China’s National Sword, has, however, made urgent the need for local markets for recycled plastics. Something must be done.

Circular Economy and the Demand Side

In response, there is increasing support for broadening the role that all plastic products (of some chemistry) can play within a broader plastics circular economy strategy. Reloop’s June 2018 A Call for EU Action on Recycled Content Mandates, Eunomia’s UK Demand Recycled, October 2018 and A Vision for a Circular Economy for Plastics in Canada, Smart Prosperity Institute, February 2019 are just three recent advocates for recycled plastics content standards, creating the necessary market to ensure both supply chains and reverse supply chains are designed for the resupply of the necessary recycled content input.

Further, the materials caught by these recycled content obligations could be substantially broadened to capture the industrial, commercial and institutional sectors, as additional to consumer goods, to expand the market (and thereby potentially lower the price) for recycled plastics content.

The Commercial Case for Recycled Content Standards

Among the benefits of recycled content requirements would be the marriage of product content with its recycling, compelling producers to better understand the opportunities for the recycled plastics generated, and to foster further innovation to best streamline more efficient recycling methods to produce high-grade plastics at commercial scale.

The Smart Prosperity Institute also points out that this closed loop strategy will insulate producers from plastic market fluctuations:

Recycled content performance standards create a market for recycled materials that moves in step with the demand for plastic products regardless of input prices from other feedstocks. Such an approach will overcome the economic barrier posed by fluctuating virgin commodity prices even as demand for plastic products continues to grow.

There is also existing recycling infrastructure in North America and the EU which is at risk if new viable markets aren’t found for recycled plastics. Finally, the liabilities associated with the release of plastic waste to the environment would be lessened given the market incentives for recapture.

How Would It Work?

As has already been proven on a more limited scale in California, recycled content standards can function in a local (though large) market without international adoption. It would, however, benefit from expansion through multilateral initiatives such as the G7 Oceans Plastic Charter and the EU Strategy, creating a sufficient market to attract broad-scale overhaul of international supply chains for plastic products.

Alternatives to direct mandated standards include an input tax based upon the percentage of fossil-fuel derived plastics. This is the approach seemingly favoured for packaging by DAERA. There are also more complex models such as a “feebate” or a tradable credit regime, both of which may offer unique functionality benefits but are perhaps too involved for easy and confident adoption by participating countries. All models, however, point to recycled plastics content as a coming reality.

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It would be a mistake to review recycled content standards as either obscure or otherwise a 2030 obligation. As traditional recycling is going through a dramatic shift, plastic feedstock no longer has easy secondary markets in developing countries and there is a growing clamour for circular economy as a remedy to pervasive plastic waste, it is possible that the international push for these standards will be upon plastics product makers sooner than they might expect.

This article is republished at the permission of the author. It was first published on the Baker McKenzie Environmental Law Insights website.

About the author

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

Global Waste-to-Energy Market Analysis and Forecast to 2027

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According to a recent research report prepared by Research and Markets Inc., the global waste-to-energy (WTE) market is poised for strong growth for the forecast period up to 2027.

The report, entitled “Global Waste to Energy Market Analysis & Trends – Industry Forecast to 2027”, states some of the prominent trends that the market is witnessing include demand in focus towards energy generation, rising government initiatives and stringent regulations, and increasing popularity of renewable energy resources.

The study presents detailed market analysis with inputs derived from industry professionals across the value chain. A special focus has been made on 23 countries such as U.S., Canada, Mexico, U.K., Germany, Spain, France, Italy, China, Brazil, Saudi Arabia, South Africa, etc. The market data is gathered from extensive primary interviews and secondary research. The market size is calculated based on the revenue generated through sales from all the given segments and sub segments in the research scope. The market sizing analysis includes both top-down and bottom-up approaches for data validation and accuracy measures.

Market Research Report

A similar market study prepared by Market Research, entitled Global Waste To Energy Market Analysis, Drivers, Restraints, Opportunities, Threats, Trends, Applications, And Growth Forecast To 2027, predicts growth in the WTE market.

The Market Research report states that increasing adoption of renewable energy resources globally is a key factor driving growth of the global waste to energy market. In addition, government policies on waste deposable & treatment techniques, low price of fossil fuel, and development in thermal technologies such as incineration, gasification, and pyrolysis that lowers the carbon emissions are other factors expected to boost growth of the global waste to energy market over the forecast period.

The Market Research report cautions that the high cost associated with waste to energy generation is a key factor restraining growth of the global waste to energy market. Additionally, lack of awareness regarding waste to energy benefits, and emission of flue gases in thermal waste to energy technology that causes health issues are other factors expected to hamper growth of the global waste to energy market over the forecast period.

The Market Research report predicts that the rising demand of low cost technologies for treating local waste is also expected to generate potential opportunity for key players in the global waste to energy market over the forecast period.

Provincial Environmental Obligations Prevail Over Federal Bankruptcy Laws – Supreme Court of Canada

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by Paul Manning, Manning Environmental Law

Recently, the Supreme Court of Canada released its decision in the case of Orphan Well Association, et al. v. Grant Thornton Limited, et al.Orphan Well Association, et al. v. Grant Thornton Limited, et al. 

The decision writes another chapter in the long running saga of whether a company’s environmental regulatory obligations survive bankruptcy and, in particular, whether the company’s trustee in bankruptcy can disclaim an asset so as to avoid environmental liability. (See our blog post The Non-Polluter Pays: Creditor Roulette and Director Liability)

The Supreme Court has now decided in Orphan Well that, after going bankrupt, an oil and gas company must  fulfill provincial environmental obligations before paying its creditors.

Background

Redwater was an Alberta oil and gas company, which owned over a hundred wells, pipelines, and facilities when it went bankrupt in 2015.

Alberta has provincial laws requiring oil and gas companies to obtain a licence to operate. As part of the licence, companies have to “abandon” wells, pipelines, and facilities when they are done. This means permanently taking these structures down. They also have to “reclaim” the land by cleaning it up. Companies cannot transfer licences without permission from the Alberta Energy Regulator (AER), which they won’t receive if they haven’t met their responsibilities.

Most of Redwater’s wells were dry when it went bankrupt. Dismantling the sites and restoring the land would have cost millions of dollars more than they were worth. To avoid paying those costs, the the trustee in Orphan Well decided to disclaim (i.e. not to take responsibility for) the redundant wells and sites under the BIA. The trustee wanted to sell the productive sites to pay Redwater’s creditors.

The AER said that this wasn’t allowed under the BIA or provincial law and ordered the trustee to dismantle the disowned sites. The trustee argued that even if the AER was correct, the provincial abandonment orders were only provable claims under the BIA. In this case, this meant the money would first go to pay Redwater’s creditors.

The Supreme  Court’s Decision

There were two main legal issues before the Supreme Court. The first was whether the BIA allowed the trustee disclaim the sites it didn’t want take responsibility for. The second was whether the provincial orders to remove structures from the land were provable claims under the BIA. If they were, that would mean the payment order set up in the BIA applied. Only money left, if any, after those payments were made, could be used to pay for taking the sites down.

The trial judge had ruled that the trustee was allowed to disclaim the disowned sites and the abandonment costs were only provable claims in the bankruptcy. The majority of judges at the Alberta Court of Appeal hearing had agreed.

The majority of judges at the Supreme Court disagreed. It ruled that the trustee could not disclaim  the disowned sites. It said the BIA was meant to protect trustees from having to pay for a bankrupt estate’s environmental claims with their own money. It did not mean Redwater’s estate could avoid its environmental obligations.

The majority also said the abandonment costs were not “provable claims”. These costs weren’t debts requiring payments; they were duties to the public and nearby landowners. This put the abandonment costs outside the BIA’s payment order scheme and as such, the majority ruled, there was no conflict between the federal and provincial laws.

(The minority of judges at the Supreme Court disagreed, arguing that there was a genuine conflict between the federal and provincial laws and the BIA being the federal law should prevail over the provincial regulations. Where a valid provincial law conflicts with a valid federal law, the federal law will normally prevail under the constitutional law “doctrine of paramountcy.”)

As the trustee had already sold or given up all of Redwater’s assets, the money from the sales was held “in trust” by the court during the lawsuit. This money must now be used to abandon and reclaim the land before anything is paid to any of Redwater’s creditors.

Click here for the full decision of the Supreme Court of Canada in Orphan Well

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focused on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal. This article is only as a general guide and is not legal advice.

Global Companies form an Alliance to End Plastic Waste

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Nearly 30 major global companies have joined together to form an Alliance to End Plastic Waste (AEPW) and have committed over $1.0 billion to develop, deploy and bring to scale solutions to reduce and manage such waste, and to promote post-use solutions. The companies, which span the entire plastics value chain, expect to invest $1.5 billion over the next five years.

The alliance is being chaired by David Taylor, president and CEO of Procter & Gamble (multi-national consumer goods corporation). The Vice President of the AEPW is Bob Patel, CEO of LyondellBasell (one of the largest plastics, chemicals and refining companies in the world).

In addition to Procter & Gamble, AEPW has drawn other big guns from across the value chain. Other founding companies – from throughout North and South America, Europe, Asia, Southeast Asia, Africa, and the Middle East – include BASF, Berry Global, Braskem, Chevron Phillips Chemical Company LLC, Clariant, Covestro, Dow, DSM, ExxonMobil, Formosa Plastics Corporation USA, Henkel, Mitsubishi Chemical Holdings, Mitsui Chemicals, NOVA Chemicals, OxyChem, PolyOne, Reliance Industries, SABIC, Sasol, SUEZ, Shell, SCG Chemicals, Sumitomo Chemical, Total, Veolia, and Versalis (Eni).

The Alliance is a not-for-profit organization that includes companies that make, use, sell, process, collect, and recycle plastics. This includes chemical and plastic manufacturers, consumer goods companies, retailers, converters, and waste management companies, also known as the plastics value chain. The Alliance has been working with the World Business Council for Sustainable Development as a founding strategic partner. The Alliance today also announced an initial set of projects and collaborations that reflect a range of solutions to help end plastic waste:

With participation from chemical and plastic manufacturers, consumer goods companies, retailers, converters, and waste management companies, the alliance membership has representation across the entire plastics value chain. The alliance has also been working with the World Business Council for Sustainable Development as a founding strategic partner

In the months ahead, the Alliance will make additional investments and drive progress in four key areas:

  • Infrastructure development to collect and manage waste and increase recycling;
  • Innovation to advance and scale new technologies that make recycling and recovering plastics easier and create value from all post-use plastics;
  • Education and engagement of governments, businesses, and communities to mobilize action; and,
  • Clean up of concentrated areas of plastic waste already in the environment, particularly the major conduits of waste, like rivers, that carry land-based plastic waste to the sea.

The Alliance also announced an initial set of projects and collaborations that reflect a range of solutions to help end plastic waste. Initial projects and collaborations include:

  • Partnering with cities to design integrated waste management systems in large urban areas where infrastructure is lacking, especially those along the rivers that transport large amounts of plastic waste from land to the ocean.
  • Funding The Incubator Network by Circulate Capital to develop and promote technologies, business models and entrepreneurs that prevent ocean plastic waste and improve waste management and recycling, with the intention of creating a pipeline of projects for investment; the initial focus area will be Southeast Asia.
  • Developing an open source, science-based global information project to support waste management projects globally with reliable data collection, metrics, standards, and methodologies to help governments, companies, and investors accelerate actions to stop plastic waste from entering the environment.
  • Creating a capacity building collaboration with intergovernmental organizations such as the United Nations to conduct joint workshops and trainings for government officials and community leaders to help identify and pursue the most effective solutions.
  • Supporting Renew Oceansto aid localized investment and engagement. The program is designed to capture plastic waste before it reaches the ocean from the ten major rivers shown to carry the vast majority of land-based waste to the ocean. The initial work will support the Renew Ganga project, which has also received support from the National Geographic Society.

The alliance will focus on collaboration and coordinated efforts across the value chain, working on projects focused on near-term progress as well as those that require major investments with longer timelines. “Addressing plastic waste in the environment and developing a circular economy of plastics requires the participation of everyone across the entire value chain and the long term commitment of businesses, governments, and communities. No one country, company or community can solve this on their own,” says Veolia CEO Antoine Frérot, a vice chairman of the Alliance to End Plastic Waste.

Research from the Ocean Conservancy shows that nearly 80 percent of plastic waste in the ocean begins as litter on land, the vast majority of which travels to the sea by rivers. In fact one study estimates that over 90 percent of river borne plastic in the ocean comes from 10 major rivers around the world – eight in Asia, and two in Africa. Sixty percent of plastic waste in the ocean can be sourced to five countries in Southeast Asia.

For more information, please visit www.endplasticwaste.org