by Erin D. Farrell, Jessica E.M. Boily and
Liane Langstaff, Associate Lawyers, Gowlings WLG
On November 29, 2018, Ontario’s new Progressive Conservative government released “Preserving and Protecting our Environment for Future Generations: A Made-in-Ontario Environment Plan” (the Plan).
The Plan comes on the heels of Ontario’s announcement to scrap the cap and trade program in Ontario, previously discussed in our October 9, 2018 article, “Ontario’s Cap and Trade Program Ends and Federal Backstop Looms: Implications for Ontario Businesses”. In addition to addressing climate change, without the cap and trade regime, as set out in our companion article, the Plan sets out the government’s other priorities with respect to the environment. Among other priorities, the Plan touches on four aspects of waste management:
In summary, the policies and priorities in the Plan don’t differ drastically from the previous government’s waste management policies. It is clear that the government recognizes the work done to date to consult with stakeholders on waste management challenges and hopes to build on that work. It is also clear that, on waste, the government is hoping to find pragmatic, balanced solutions that aim to improve both the environment and economy.
1.ORGANIC WASTE AND LANDFILLS
The Plan notes that individual Ontarians divert almost 50% of their own household waste to either the blue or green bin, but that when Industrial, Commercial and Institutional (IC&I) waste is considered, Ontario’s waste diversion rate has been stalled at below 30% for the past 15 years. By way of comparison, San Francisco has a waste diversion rate of 80% and New York diverts about 21%. Contributing to the gap in Ontario is the fact that over 60% of Ontario’s food and organic waste is still sent to landfills. There it breaks down to create methane, a greenhouse gas that contributes to climate change.
In May 2018, after consultation with stakeholders, the previous government released Ontario’s Food and Organic Waste Framework, (the Framework) which included an Action Plan and Policy Statement setting out the priorities for addressing food and organic waste in Ontario. The Framework focused on 4 priorities:
- Reducing food and organic waste
- Recovering resources from food and organic waste (particularly in multi-unit residential and the IC&I sector)
- Supporting resource recovery infrastructure
- Promoting recovered resources with a focus both on beneficial uses and promoting sustainable markets for end-use products
While the previous government’s Framework identified short, medium and long-term priorities for a number of overarching goals, it also contemplated future consultation on a number of specific legal changes including amending the 3Rs Regulations (O. Reg.103/94, 104/94, and 102/94) under the Environmental Protection Act to include food and organic waste, banning food and organic waste from landfills, modernizing approval processes and requirements to support resource recovery infrastructure, and reviewing regulatory approaches to compost quality standards and agricultural soil health.
The Plan similarly hopes to close the gap and ban all food and organic waste from landfills. This is proposed to be done by expanding green bin collection systems and educating the public about organic waste diversion. As part of its focus on reducing food waste, the Plan notes that safe food donation will continue to be supported through the Ontario Community Food Program Donation Tax Creditand the Ontario Donation of Food Act, which provide tax credits to encourage partnerships between farms and food banks.
Though the Plan aims to eliminate organic waste being set to landfills, the government recognizes that despite best efforts at diversion, there will be a need for new landfills in the future. In addition the Plan references “enhanced” consultation with municipalities and communities regarding landfill siting in addition to the already rigorous environmental assessment and approval process currently in place.
2. EXCESS SOIL
It has been estimated that Ontario’s construction activities generate close to 26 million cubic metres of excess construction soil every year, and that $2 billion is spent annually to manage excess soil. Historically, there has been a lack of clear legal requirements around the management of excess soil generated from construction and environmental remediation activities. Decisions about how and when to classify excess soil as “clean” enough to exclude it from the definition of waste had to be made on a case-by-case basis without reference to a clear legal framework. Stakeholders in the industry have been looking for clarity and guidance on this issue.
In April 2018, the previous government released an Excess Soil Management Regulation for consultation. The Regulation built on stakeholder comments provided to a previous regulatory proposal and the Excess Soil Management Policy Framework released in December 2016.
The Plan briefly touches on excess soil management but does not state whether the Excess Soil Management Regulation will be passed. Rather, the Plan reflects the general commitment to include making “clear rules and standards around how extra soil from construction projects is managed, relocated and reused”. In addition, the Plan speaks to consideration of local options (which reduce greenhouse gas emissions from trucking) and the re-use of soil rather than landfilling. It remains to be seen whether the proposed Regulation will be passed in its entirety.
Last, the Plan comments on enforcement, noting the government will “take strong enforcement action” to ensure waste, including hazardous waste in soil, is properly stored, transported, recycled, recovered or disposed of.
3. PRODUCER RESPONSIBILITY
In 2016, the Resource Recovery and Circular Economy Act, 2016 began Ontario’s progression towards “full producer responsibility”, i.e. making producers financially responsible for recovering resources and reducing waste associated with their products and packaging. Prior “extended producer responsibility” programs only required designated producers to pay a portion of these costs, and were criticized for decoupling waste creation and waste processing as the producers do not control or participate in the recycling process for their products. Used tires were the first material to be transitioned to the full producer responsibility system. Additional materials, including blue box waste, municipal hazardous or special waste, and waste electrical and electronic equipment, were to follow.
The Plan states that the government will “move Ontario’s existing waste diversion programs to the producer responsibility model”. It is unclear whether the new government will make substantive changes to the existing producer responsibility programs in Ontario, which had already begun to phase-in manufacturer responsibility product and packaging waste. However, the focus on certain products such as compostable packaging in the Plan indicates what sectors may become a priority to this government.
4. FUNDING FOR CLEAN TECH AND WASTE MANAGEMENT INNOVATIONS
The Plan calls on the private sector to use its capital, capability and know-how to transform clean-tech markets, including the technologies involved in waste management. A variety of funding streams were previously available to support clean tech. For example, the 2016 budget contained a $55 million commitment to support the clean tech industry. Furthermore, in recognition that 6% of Ontario’s total GHG emissions came from the waste sector, some of the proceeds of Ontario’s previous cap and trade program were to be used for waste management innovations and the cap and trade program intended to accept offset credits for landfill gas capture projects that resulted in GHG emissions reductions. The previous Climate Change Action Plan also established a pilot programto use methane obtained from agricultural materials and food wastes for transportation purposes.
It is not clear from the Plan whether these types of funding sources will be continued. What the Plan does do is to specifically reference investment in waste management technologies such as chemical recycling and thermal treatment to ensure that valuable waste-based resources do not end up in landfills. Ontario is also seeking in increase new projects or technologies to deal with difficult to recycle materials.
Furthermore, the Government will still support clean tech through a new funding pool called the Ontario Carbon Trust. In total the program will devote $400 million over four years. $350 million would be used to create an emission reduction fund to support GHG reduction emissions. The remaining $50 million would be used to fund a “Reverse Auction”, allowing bidders to send the Government proposals for emissions reduction projects and compete for contracts based on the bidder who can reduce emissions for the lowest cost. Thus, waste management innovations that have a corresponding benefit of reducing GHG emissions may receive some of this funding.
Green Bonds, government bonds meant to fund projects with environmental or climate benefits, may also be on the horizon. The Government states that it will work with the Ontario Financing Authority to issue Green Bonds to allow Ontario to raise funds for “green” projects by the end of the fiscal year.
Ontario also notes that a planned emissions performance standard for large emitters may include compliance flexibility mechanisms, such as offset credits. Given the prior government’s acceptance of landfill gas capture projects for offsets, it is conceivable that similar projects could qualify for offsets under the new emissions performance standard and spur innovation in this field. For more details on Ontario’s emissions performance standard, see our companion article on the climate change implications of the Plan.
Most of the waste management goals set out in the Plan build upon previous plans or programs. The Plan aims to:
- Improve and update environmental approvals to support sustainable end markets for waste and new waste processing infrastructure
- Incentivize new technologies, such as thermal treatment, to recover valuable resources in waste
- Reduce the amount of waste going to landfill
- Expand green bin and organic waste collection systems in cities and the IC&I sector to prevent any food waste from entering landfills
- Promote redevelopment of brownfields.
The implementation of the Plan will require detailed regulatory proposals, programs and policies. Once those details are made available, it will be possible to determine whether the Plan achieves its goals of fostering innovation while still protecting the environment.
The Ministry will accept comments and feedback on the Plan until January 28, 2019.
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About the Authors
Erin Farrell is an associate lawyer in Gowling WLG’s Toronto office, practising in the firm’s advocacy department. Her practice focuses on a variety of commercial litigation matters, including class actions, product and professional liability, environmental law and municipal liability.
Erin represents professionals in both civil and administrative matters, and has defended a number of Canadian and foreign clients in the pharmaceutical, medical device and manufacturing sectors in litigation. She also has extensive experience in the banking sector, advising clients on a range of litigation matters, including a variety of motions and injunctions.
Jessica Boily is an associate in Gowling WLG’s Toronto office, practising in Environmental Law. Jessica works with clients to navigate and resolve complex disputes, including advocating for clients in appeals of environmental orders and civil litigation involving contaminated sites. She guides clients through regulatory inspections and investigations, including defending clients charged with federal, provincial and municipal environmental and regulatory offences.
Liane Langstaff is an associate lawyer in Gowling WLG’s Toronto office, practising in the areas of environmental law, indigenous law and land use planning law. Liane has a diverse practice, serving corporate, municipal and indigenous clients. She is a passionate advocate and provides comprehensive legal advice on a range of environmental issue