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Consultations begin on Ontario Electronic Stewardship’s Wind-Up Plan

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The Ontario Resource Productivity and Recovery Authority (RPRA) is consulting with stakeholders and the public on Ontario Electronic Stewardship’s (OES) Wind-Up Plan for the Waste Electrical and Electronic Equipment (WEEE) Program. Public comment on the 85-page OES Wind up Plan will be accepted by the RPRA until April 18th.

Background on the Ontario Electronic Stewardship

Ontario Electronic Stewardship (OES) is an Industry Funding Organization (IFO) designated to operate the waste diversion program for waste electrical and electronic equipment (WEEE) under the Waste Diversion Transition Act, 2016 (WDTA). Since its inception in 2009, the WEEE program has diverted over 67 million electronic devices or over 500,000 tonnes of waste electronics from Ontario landfills. The WEEE program promotes the re-use and refurbishment of waste electronics and ensures that the valuable resources found in waste electronics, that cannot be re-used, are processed and recycled in an environmentally responsible manner.

Why is OES being wound up?

In 2016 the Ontario legislature passed the Resource Recovery and Circular Economy Act, 2016 (RRCEA) which creates a new legislative framework for managing waste in Ontario. Current waste diversion programs and related IFOs, such as Ontario Electronic Stewardship, will be wound up subject to provisions under the WDTA. Under the RRCEA, producers will be responsible for the implementation of new waste diversion programs that must meet recycling targets and objectives established under that Act.

Under the WDTA wind up process IFOs are required to develop wind up plans in accordance with specified statutory requirements once directed to do so by the Minister. Subsection 14 (13) of the WDTA requires IFOs to consult with stewards, municipalities and other stakeholders affected by termination of the program in developing wind up plans. IFOs submit wind up plans to the Resource Recovery and Productivity Authority (RPRA) which reviews and approves the plan if it is consistent with the Minister’s direction and statutory requirements.

In February 2018, OES received direction from the former Minister of Environment and Climate Change to wind up the WEEE program by June 30, 2020. (Note: In July 2018 the Honourable Rod Phillips, Minister of Environment, Conservation and Parks, assumed responsibility for administering the RRCEA and WDTA statutes.)

What’s Next in Ontario with respect to WEEE?

After wind up, electrical and electronic equipment will be managed under a new, mandatory individual producer responsibility (IPR) framework. This means that producers of electrical and electronic equipment will be responsible for ensuring their products and packaging are collected and reused or recycled at end-of-life. The RPRA is mandated by the Government of Ontario to oversee the wind up of Ontario’s current waste diversion programs and enforce IPR requirements.

Public Information and Feedback Sessions

The RPRA is hosting several sessions to present key elements of the plan for feedback and to answer any questions you may have. The sessions are open to all WEEE Program participants, municipalities, the public and other interested stakeholders.

The RPRA is encouraging all interested organizations and persons to attend to learn more about the wind-up, the new framework for electrical and electronic equipment.

The sessions consist of a presentation that will explore key aspects of OES’s proposed wind-up plan and there will be time for your questions. The Authority will also consult on OES’s revised projection for program surplus, which is based on information that was not available at the time of OES’s consultations.

The schedule for public consultations can be found in the table below.

LocationDate and TimeRegistration
WebinarThursday, March 21
1 p.m. – 3 p.m.
Register here
LondonFriday, March 22
10 a.m. – 12 p.m.
Register here
Ottawa (Kanata)Wednesday, April 3
9 a.m. – 11 a.m.
Register here
North BayThursday, April 4
9 a.m. – 11 a.m.
Register here
TorontoTuesday, April 9
9 a.m. – 12 p.m.
Register here
WebinarWednesday, April 10
10 a.m. – 12 p.m.
Register here

Feedback on the Wind-Up Plan is due by 5 p.m. on Thursday, April 18. You can provide feedback via email to consultations@rpra.ca.

Ontario: Orphaned Eco-Fees Raises Legal Questions for Electronics Industry

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by Jonathan D. Cocker, Baker McKenzie

Ontario’s waste electrical and electronic equipment (e-waste) stewardship obligations are being transitioned to a circular economy legal regime.  The government-overseen e-waste program is being wound-up and will effectively cease as of June 30, 2020. The program has managed to generate such a surplus of funds from consumers it otherwise would pay the electronics recycling industry that it’s obtained approval from the Ontario government to grant the industry, and presumably in turn, consumers a “fee holiday” in order to expend the surplus. The fee holiday started on February 1st, 2019 and runs until June 30, 2020.

This means no eco-fees (or Environmental Handling Fees) on electronics are to be charged and remitted for the next 17 months when the program ends.

No Relaxation For Electronics Industry During Fee Holiday

But what if the electronics supply chain and retailers somehow continue to pass the now orphaned eco-fee down the supply chain and ultimately to consumers in spite of industry’s inability to remit it.  Most consumers will not likely be aware of this reprieve in obligation. Most suppliers and retailers have systems already programed to charge the fee. It’s not clear any regulatory authority is actively policing industry on this. So if it’s business as usual in electronics sales, where will the money go and what are the risks?

Whose Money Is it Anyway?

The e-waste program, like all government-overseen plans in the province, funds its ongoing program costs with an eco-fee cost imposed upon consumers. The rates are rigidly set and the supply chain and retail parties simply pass the eco-fee through to point-of-sale and then remit to the program. No risks or rewards are assumed by these parties and there is no opportunity to internalize or otherwise alter the eco-fee for competitive or profit purposes.

The fees have not been, and cannot credibly be claimed as, margin adjustments when charged in an identical manner to unwitting consumers.  It would be difficult for industry to claim title to the monies, whether as an advance or an investment. The monies are simply consumer overpayments relative to the costs of the soon-to-be-defunct program, and the amount at issue is not insignificant. Orphaned eco-fees which could be passed to consumers during the holiday could potentially be as high as one hundred million dollars.

Duty of Care for Orphaned Eco-Fees

As the e-waste program can no longer accept eco-fees charged after February 1st, 2019, it raises questions as to what proactive measures the electronics industry, including brand owners and importers, must take to ensure no such fees continue to be passed on to consumers who should otherwise be enjoying the fee holiday they’ve effectively funded.

Ignorance of the holiday may not protect electronics companies. Through their participation in the e-waste program, industry will be deemed to have knowledge that any post-February 1st, 2019 eco-fees are effectively orphaned.  Nor are any parties clearly insulated from risk. Continued charging of the eco-fee by supply chain parties, effectively compelling retailers to recapture the costs from consumers, may also create legal uncertainty. All parties may have a duty of care here.

Be Neither Recipient Nor Beneficiary of Orphaned Eco-fees?

Resetting systems and processes to eliminate the eco-fee will be laborious. Instead, some parties within the electronics industry may be inclined to accrue the orphaned eco-fee for a future mutually-beneficial use, such as supporting industry-segmented private producer responsibility organizations which will rise from the ashes of the government program. This, however, may appear as industry doing indirectly what it cannot do directly and may not be defensible if and when someone comes asking about the treasure trove of orphaned fees.

It’s clear that the 17-month fee holiday journey to a private circular economy model for electronics provides no time off for industry.  It must act now to address any unsanctioned charging of orphaned eco-fees.  The holiday has already started.


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).

Nova Scotia amends rules to allow waste-to-energy projects

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The Government of Nova Scotia recently gave the green light to waste-to-energy projects in the province. Nova Scotia’s solid waste regulations have been amended to allow thermal treatment facilities to turn plastic, cardboard and newsprint into energy. The changes clarify that the province considers energy recovery as waste diversion.

All waste-to-energy facilities will require an environmental assessment and industrial approvals before going ahead.

A potential benefactor of the amended regulation is Sustane Technologies based in Chester, Nova Scotia. The company is in the process of constructing a waste-to-pellets facility. Sustainable Development Technology Canada (SDTC) provided $2.6 million in funding assistance in 2017 for the development of the facility.

At the media event in 2017 announcing the SDTC funding award, Leah Lawrence, President and CEO of SDTC, stated: “Sustane’s first-of-its-kind technology converts waste into useful products like synthetic diesel and recycled metal and plastic, potentially eliminating the need for landfills. This Nova Scotia–based company’s technology has applications around the world, and SDTC is proud to be its partner.” 

When fully constructed and operational, the plant will transform up to 70,000 tonnes per year of MSW into 35,000 tonnes per year of biomass pellets, 3.5 million litres per year of diesel fuel, plus recyclable metals.  The project will increase landfill diversion rates for Chester, Valley Waste Authority (Annapolis Valley) and Municipal Joint Services Board from approximately 50% to over 90%.

The project broke ground in March 2017 and is currently undergoing testing with full operation expected in Q1 of 2019.

A waste audit in 2017 by Divert Nova Scotia found 43 per cent of the garbage being sent to landfills is banned material that could have been composted or recycled. 

According to the province’s news release, recyclable materials will still be banned from landfills.

“Nova Scotians are national leaders in waste diversion, but there is still more we can do to keep waste out of our landfills,” Environment Minister Margaret Miller said in a news release. “We want Nova Scotians to continue to recycle and compost, but we also need to ensure we’re doing all we can to reduce our footprint. This will give new businesses the chance to create something useful from waste destined for landfills.”

Gordon Helm, Chief Technical Officer at Fourth State Energy & Nova Waste Solutions Inc., said “This is very exciting news for Nova Scotia, and the government’s stated intention to modernize our solid waste resource management regime. It’s a major step in reducing the harmful environmental impacts of active landfilling and the generations of emissions of methane GHG and the production of millions of litres of toxic leachate.”

Mr. Helm added, “Advanced thermal conversion technologies are a proven, cost effective, and energy efficient alternative to landfills and incineration. We can and need to continue to do more in terms of reducing waste resources, but waiting for the all or nothing solution is not the answer … In the end, any solution that moves us towards ending active landfilling is a worthy effort.”

Nova Scotians, on a per capita basis, send the least amount of waste to landfill – 404 kilograms of waste per person per year. The national average is 688 kilograms of waste landfilled per person per year.

Canadian Electronics Makers at Risk with e-Waste Exports

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by Jonathan Cocker, Partner at Baker McKenzie

“Canada continues to allow exports of hazardous e-waste to flow to developing countries (in this case, China and Pakistan)… These are all likely to be illegal.”
Export of e-Waste from Canada, October 10th, 2018, Basel Action Network

The release of this report by the Basel Action Network, subtitled A Story as Told by GPS Trackers, has thrown a veritable thunderbolt into the midst of the waste electrical and electronic equipment recycling industry in Canada (and beyond as these issues are not unique to any one country). Not only are current stakeholders engaging in the continued export of toxic materials to unlicensed (and unregulated) locations in developing countries, but these exports may well violate one or more laws, including national laws adopting the original Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.

e-Waste Monopolies and the Limits of Due Diligence
A question arises as to how manufacturers of electronics could allow their products and their industry representatives to engage in these exports long after the harmful environmental and societal impacts of such exports have come to light and addressed through international agreements. The answer lies in their proximity to the compliance activities undertaken on their behalf. In Canada, the makers of electronics are mandated to participate in a single government-approved WEEE recycling organization in each province. Decisions around this reverse supply chain are simply too remote to many in the electronics industry.

More importantly, there is too little incentive for the government designate to rigorously oversee the end-of-life compliance of the waste they transfer, as painfully demonstrated by the Export of e-Waste from Canada Basel Ban report. Instead, the organizations can rest upon the recycler qualifications and standards as due diligence and blame the bad apples when these scandals come to light. Their compliance mandate can be viewed as essentially process, not results, driven and they have little organizational risk, as the monopoly party, in whatever mischief happens thereafter. Equally, individual electronics manufacturers aren’t invested in the environmental outcomes as they are not at risk. It’s no coincidence that the report itself does not name one electronics company as culpable.

Electronics Industry Facing Coming Individual Producer Responsibility
Ironically, it is the Canadian e-Waste government designates which will lose their monopoly positions in the marketplace under the coming individual producer responsibility model (IPR) for many waste streams, including electronics. Under IPR, it will be individual producers who will assume direct responsibility for the proper resource recovery of the electronics they place on the market. These electronics companies will retain the liability for outcomes such as illegal shipments to:

“an area well documented as being a global e-waste trafficking and smuggling hub.”

The risks to the electronics industry participants become real, both regulatory and reputational, truly motivating them to ensure that their oversight role doesn’t end at a qualification program, in the same way that international brands in many other industries are increasingly scrutinizing their (front end) supply chains. Canada’s Province of Ontario will have IPR for e-Waste in 2020.

Small(er) Is Beautiful in Managing e-Waste
To conduct this kind of effective auditing and verification, electronics makers will want to stay closer to their reverse supply chains (and potentially lucrative secondary markets) through individual or smaller, market-segmented groups to best structure reverse supply chains which meet their individual or group needs. Leaving it in the hands of a single monolith entity acting on behalf of a myriad of parties, from manufacturers to retailers and everyone in between, across the broad spectrum of waste-relegated electronics and electrical equipment, will continue to prove ineffective in ensuring e-Waste compliance. It will be up to the producers themselves to finally bring these e-Waste exports to a permanent halt.

This article was originally published on the Baker McKenzie website.

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About the Author

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of its Global Consumer Goods & Retail and Energy, Mining & Infrastructure groups. He participated in founding one of North America’s first circular economy producer responsibility organizations. Jonathan 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 most recently the author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

B.C. Proposes Changes to Organic Matter Recycling Regulation

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The British Columbia Ministry of  Environment and Climate Change Strategy (the “Ministry”)  recently introduced proposed changes to the Organic Matter Recycling Regulation (OMRR).  The Regulation itself governs the construction and operation of compost facilities, and the production, distribution, storage, sale and use of biosolids and compost. It provides clear guidance for local governments and compost and biosolids producers, on how to use organic material while protecting soil quality and drinking water sources.

The Ministry is currently conducting a comprehensive the OMMR to ensure it remains protective of human health and the environment. The Ministry recently published a 2018 Intentions Paper for review. The Intentions Paper is the result of policy development following
three previous policy intentions papers (October 2006, July 2012, and September 2016) with consultations, a follow up Summary of
Public Input and Policy Update (March 2017), and policy work completed this past year by the Ministry.

The policy intentions paper presents the Ministry’s policy intentions for proposed revisions to the OMRR. The policy intentions paper reflects details and further policy development completed since March 2017, including in topic areas that had been identified for further exploration or policy development in the Summary of Public Input and Policy Update.  The policy intentions paper is developed for the purpose of consultation.

The ministry’s proposed revisions to the OMRR are intended to address advances in science, feedback from stakeholders, policy direction, and operational issues or gaps that have been identified through implementation of the OMRR. Proposed OMRR revisions will be in keeping with the ministry’s approach to develop legislation, regulation and policies based on evidence and sound scientific knowledge and expertise.

Vancouver Compost Site

The Intentions Paper contains specific policy intentions and details that have changed since earlier consultations or are new policy proposals which were not discussed in previous intentions papers.  They are are follows:

  • Improving government authority with a shift from a notification process to a registration process (Section 1);
  • Classifying composting facility size by the amount of feedstock received (i.e., input) rather than the amount of
    compost produced (i.e., output) (Section 1);
  • Requiring that a notice of operation be given by facilities producing BGM and using more than 5 m3 of biosolids at a
    site per calendar year (Section 1.1);
  • Specifying requirements for engagement with First Nations (Section 2);
  • Enabling substitutions (Section 3);
  • Enabling fee payments for substitutions and registrations (Section 4);
  • Addition of new feedstocks for composting, including raw domestic sludge and used mushroom growing substrate
    and (Section 5);
  • Establishing timelines for composting facilities under permit, approval or operational certificate to adopt higher
    performance standards (Section 6.2);
  • Improving standards for compost quality criteria, including a new limit of 0.25 percent by wet weight for plastics
    (Section 6.3);
  • Specifying mandatory setbacks for composting operations (Section 6.4); and
  • Enabling a director to request post-application sampling for each site and occurrence of the land application of
    managed organic matter (Section 7.4).

The Ministry is encouraging comments regarding the information outlined in the 2018 Intentions Paper. The deadline for responses is November 8, 2018.  The Ministry has stated that it will consider all responses as it prepares the proposed revisions to the regulation.