Canada’s Single-Use Plastics Law May Restrict Biodegradable Plastics

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Written by Jonathan D. CockerBaker McKenzie

Some might have wondered what the purpose might be for this joint assessment from Environment and Climate Change Canada and Health Canada:  Draft Science Assessment of Plastic Pollution, January 2020After all, the federal government and the provinces have already entered into an agreement through the Canadian Council of the Ministers of the Environment to create a regulated circular economy for plastics in the name of environmental harm reduction.

In fact, a single-use plastics law was promised by the federal government in June 2019 (and reaffirmed in January 2020), with a likely effective date coincident with the implementation of the European Union Single-Use Plastics (SUP) Directive.  It’s a virtual article of faith in Canada that some plastic pollution is adversely impacting the environment – so what does the Draft Assessment tell us about the scope of the promised Canadian single-use plastics law that we don’t already know?

The Rise of Alternative Plastics…

Since the plastic pollution crisis of 2018, there has been a sudden rush of new end-of-life labels and certifications applied to common products, including those very same products targeted by the EU SUP Directive.  Initially, many of the promoted environmental claims were pulled from pre-crisis times, and were disseminated broadly even though they were neither verified nor verifiable.  “Bioplastic” was one such label – which did not necessarily perform any better environmentally than its petroleum-based cousin but arguably benefitted from commonly held beliefs as to its environmental superiority.

Many industries were compelled to respond to public skepticism and attributes such as “Compostable” and “Biodegradable” have become increasingly standardized, with biodegradable / compostable certifications available under international standards such as ASTM.  The growth of these alternative plastics for many common items has been meteoric, attracting long-term capital investment and seemingly setting new industry standards for years to come.

…and Their Coming Fall?

But wait – the landscape in Canada may have just shifted again… The Draft Assessment seems to signal that the plastic product, and not its composition, will be the focus of single-use plastics restrictions (and of those other laws to follow).  Scant attention is paid to alternative plastics in the Draft Assessment, which draws little distinction between conventional plastics and these newer offerings.  To the extent alternative plastics assessments were specifically considered, the Draft Assessment suggests little differentiation in the coming law will be made:

Although biodegradable plastics and bioplastics are increasingly being used as alternatives to conventional plastics, they may not degrade more readily than conventional plastics once in the environment.

In contrast, the Draft Assessment fundamentally divides plastics between macroplastics (greater than 5mm) and microplastics (5mm or less and inclusive of nanoplastics).  The near silence on alternative plastics may be deafening for the multitude of industries with substantial (and recent) investment in the viability of these alternatives.

Some Reason for Optimism

The Draft Assessment does seem to contemplate, within the range of alternative plastics, a need to “differentiate degradation pathways under different conditions” to recognize where alternative plastics may deliver preferable environmental performance:

  • for instance, some biodegradable variants are accepted as biodegradable in industrial composting facilities, but will not biodegrade under natural conditions;
  • Bioplastics may bepreferable to conventional plastic feedstock in decarbonization efforts or in providing demand for residual biomass that exists in integrated agriculture and forestry sectors;
  • There is insufficient evidence as to whether oxo-degradable plastics have accelerated degradation (it remains an open question); and
  • At least one biodegradable plastic was found to have largely degraded chemically and morphologically in sea water over a 180 day period.

In short, there wasn’t substantial evidence to support alternative plastics’ environmental value, but, for the most part, nor was there sufficient proof of the opposite.  An informational gap exists in this area.

More to Be Said on Alternative Plastic Before the Law?

As the Draft Assessment opens the door to a 60-day consultation period ending April 1st, 2020, there remains a window of opportunity for all industries engaged in the production, sourcing or sale of alternative plastics to provide input, technical and policy-driven, to preserve a space for environmentally beneficial alternatives to conventional plastics in Canada.

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The coming Canadian single-use plastics law is just the first initiative in a broader legislative program on plastics eventually regulating all plastic products, containers and packaging.  The time is now for Canadian industry to supply missing information on alternative plastics before long-term decisions about their role in the economy are made.

Republished with the permission of the author. This article was first published on the Baker McKenzie website


About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations.

Should Countries Outside of Europe Adopt EU Single-Use Plastics Law?

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Written by Jonathan D. Cocker, Baker McKenzie

The European Union’s landmark Single-Use Plastic (SUP) Directive is set to be enacted into member states’ national laws by 2021.  Some countries outside the EU have already signaled their intention, in all but name, to adopt consistent SUP laws, for good commercial and regulatory reasons.    

Confidence in the EU as the world’s standard bearers on environmental management, including product environmental regulatory matters, is in its ascendancy, particularly with initiatives such as the Circular Economy Action Plan and the recent Green New Deal.   

But questions must be asked – how clear and portable is the EU law and does local replication of the SUP Directive outside of Europe make sense?

SUP Directive to Regulate “Plastic”

In June of 2019, following months of dire warnings over the proliferation of plastic pollution, the EU passed the SUP Directive with the stated aim of reducing the impact of “certain plastic products” on the environment – namely many of the most prevalent plastic items regularly found on beaches in Europe, along with fishing nets, which together are said to account for a substantial amount of the (visible) marine plastic pollution. 

The SUP Directive adopts a variety of regulatory measures depending upon the material:  from outright bans to mandatory extended producer obligations to product labelling and consumption reduction obligations.   The core regulated material is “plastic” but, surprisingly, this is the beginning, not the end, of the story.

Natural v. Synthetic  – But Both Pollution

Definitions of plastics start with long-chain synthetic polymers which can be generated from petroleum or plant-based materials subjected to imposed polymerization and therefore regulated as a plastic.   Conversely, the SUP Directive excludes:

            Natural polymers that have not been chemically modified

Natural polymers are free of imposed polymerization but may also become synthetic through any “chemical modification” – though exactly when this occurs is more a question of arcane chemistry than environmental protection and, interestingly, might have reference to other regulatory treatments of the material.  In some instances, the designation of a natural v. synthetic polymer can be a distinction without a difference at it relates to environmental impacts. 

Non-Plastic Alternatives May Be Regulated 

The recital to the SUP Directive appears to recognize this quandary in expressing an intention (but not mandating) that (non-plastic) single-use products within a material category capturing plastics can also be regulated under the SUP Directive unless the product can be shown to have a substantially reduced impact on the environment relative to a regulated plastic alternative.  

In other words, industry should be prevented from making only a technical product content switch to a non-plastic category without any appreciable environmental gain.   But this moves the law away from strict international plastic product standards and brings in a host of local considerations.  

The Case of Wet Wipes – No Clean Distinctions to Be Made

The recent joint report by environmental consultants Eunomia and Reloop entitled What is Plastic?explores the tension between plastics taxonomy and environmental impacts using a concrete example of consumer wet wipes and points out that they can be made by synthetic or natural polymers, including man-made (non-plastic) cellulosic fibres (MMCFs), with similar environmental impacts.   

The report looks at whether either a technical or purposive reading of the SUP Directive would potentially capture certain MMCFs as equally harmful in wet wipes to plastic alternatives.  In conclusion, the competing goals of meaningful environmental protection (with a broad interpretation of SUPs) and potentially inconsistent Directive implementation across the EU remains unresolved, with some clarity hopefully coming through 2020 EU policy statements.  

This is not the turnkey plastics legal regime the rest of us might have hoped for.

If Environmental (not “Plastic”) Harm is the Question, the Answer Won’t Be the Same Worldwide

The final point in understanding what is coming under plastics regulation, regardless of which scheme is adopted, is that countries / regions will need to look at the prevalence and persistence of waste in their ecosystems in determining where to draw the line on material bans / regulatory restrictions, and, of course, it won’t necessarily be wet wipes which creates the greatest local challenges.  

In short, countries / regions need to do their own strategic thinking around environmental, commercial and social outcomes in developing a plastics law – simple local replication of the SUP Directive isn’t a viable option.

This article has been republished with the permission of the author. It was first published on the Baker McKenzie website.


About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations.

Automakers Charge Headlong Into EV Battery Recovery

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Written by Jonathan D. Cocker, Baker McKenzie

There has certainly been rapid growth in the market for electric vehicles (EV), in part due to their associated (and celebrated) environmental attributes.  What receives much less attention, however, is the looming waste-management challenge, particularly for EV lithium-ion batteries (LIBs).  The proliferation of post-consumer LIBs has yet to fully materialize given the recent installation of long-life LIBs across multiple vehicle industries, but the environmental price for the switch to EV will soon be paid by EV makers.

Currently, brands are scrambling to both develop their EV offerings and determine their resource recovery strategies around LIBs, which will be a source of strategic elements and critical materials for key components in new EVs, as well as a coming materials efficiency compliance obligations internationally.  So just where does LIB recycling stand today?

Re-Use as Energy Storage or Charging Stations

Recently, there has been some positive attention paid to the re-use opportunities for end-of-life LIBS – either as energy storage units or as part of EV charging stations- which Re-use is an accepted method of resource recovery, including under regulated LIB circular economy laws so there may well be a portion (however small) of post-consumer LIBs which are deployed for these projects.

The metals content of LIBs, however, is sufficiently valuable and the coming demand for LIBs is so great that the lithium-ion battery recycling industry will necessarily take the lion’s share of available batteries, even though the content of the LIBs continues to rapidly evolve as the technology develops.  Specific recovery goals applied to LIBs is a moving target right now.

LIBs and Eco-Design

Remanufacturing is permissible, if not encouraged, as a resource recovery activity under most legal regimes. For LIBs, this usually requires the disassembly of the LIB to at least the module level.  This will require high-voltage training and specialized tools to protect the operators and the battery from electrocution and short-circuiting risks, respectively.  There are also potentially toxic gases released in the process.

All of which highlights a key industry question- will there be eco-design rules such as right-to-repair disclosure and accessibility obligations upon the brands and their LIB providers, particularly given the variance in LIBS emerging across the vehicle spectrum.  The EU Right-to-Repair obligations for other e-waste, such as lighting, televisions and large appliances are set to apply within Europe as of April 1st, 2020 under the EU Eco-Design Resource Efficiency Standards.  It can be anticipated that similar accessibility obligations, including perhaps labelling and design data disclosures, could apply to LIBs in spite of the acute safety concerns.

Recycling, But Without Common Standards

The recycling of LIBs is certainly complicated by the myriad of physical configurations, cell types and chemistries, however leading companies are beginning this challenge through innovative process technologies capable of recycling a diverse feed of lithium-ion batteries.  Still, design-for-recycling of LIBs is not likely too far away and there are already state-of-the-art processing facilities in Europe and North America that engage in some recycling combination of stabilization, opening and separation of the LIB.

Proprietary LIB Recycling v. Industry Solution

Like every resource recovery market, there are EV brands which are seeking to develop market leading “closed loop” processes for their materials, through significant direct capital investment and / or strategic partnerships with the LIB maker and the specialized recycler.  These processes involve centralization of receiving and processing, with a heavy reliance on custom automated processing which may permit sorting for some combination of remanufacturing, re-use and recycling.  In the near term, these investments are likely to remain proprietary to the individual brands with limited accessibility to the rest of the industry.

For the remainder of the brands, the resource recovery pull will come either from the LIB maker servicing multiple brands or the local LIB recycling industries quickly growing around the pending demand, whether driven by waste diversion or circular economy requirements.  For now, there is likely more splintering and less convergence in the near term as brands come to fully develop their EV offerings, leaving legacy challenges for LIB recyclers in the years to come.

Two regulatory pushes will eventually bring needed standardization to LIBs: consistency of EV charging as an accessibility right; and circular economy / materials efficiency obligations for end-of-life LIBs as environmental compliance for EV industries.  However, as to when common standards (and common chemistries) are adopted is anyone’s guess.

This article has been republished with the permission of the author. It was first published on the Baker McKenzie website.


About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations.

Fun with Waste: Enviro Kids Camp

The Province of Newfoundland and Labrador offers a summer camp for kids called “Enviro Kids“. The summer camp activities are designed to engage children aged 5-8 years in environmental learning in a fun and interactive way. 

The camp includes opportunities for kids to discover the natural world and help protect our planet. In this fun-filled week, Enviro-Kids embarks on a journey of fun games and activities as they explore the 3Rs and composting. Camp participants also enjoy nature hikes, educational games, arts and crafts and discover the secret to organic magic.

Economic Study of Canadian Plastics Industry, Markets, and Waste

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You may have missed a significant study published by Environment Canada and Climate Change (ECCC) last year on the Canadian plastics industry that included an examination of the waste. The scope of the study encompassed most plastics types used across all key sectors. It attempted to shed light on the entire plastics value chain in Canada, from raw material production and products manufacturing to use and end-of-life.

The study concludes that landfilling 87% of plastic waste represents a $7.8 billion lost opportunity. By 2030, it is estimated that Canada’s lost opportunity related to unrecovered plastics could rise to CA$11.1 billion, under a business as usual scenario following the same end uses and value recovery performance as the current baseline.

Domestically recycled “secondary” plastics output accounted for approximately CA$350 million in sales in Canada in 2016. In comparison with the sales of its primary resin competitor, it is 30 times smaller. The recycling industry focuses on polyethylene terephthalate (PET), high-density polyethylene (HDPE) and polypropylene (PP) and is predominantly located in large end-markets providing easier access to plastic waste feedstock, such as in Ontario, Quebec and British Columbia.

The main generating sectors for plastic waste are packaging (43 percent of total plastic waste), automotive (9 percent), textiles (7 percent), and electrical and electronic equipment (EEE 7 percent). The construction sector, while an important end-use market (accounting for 26 percent of plastic put on the market), is not yet a large plastic waste generator (5 percent), given the fairly recent incorporation of plastics in construction (in the 1980s and 90s) that remains ‘stocked’ in houses and buildings; this situation could change in future years with construction renewal. Under a business as usual situation, the linear profile of the Canadian plastics economy is not going to improve given forecasted trends in waste streams and economic drivers.

Ambitious Recycling Plan

An ambitious 2030 scenario was developed as part of the study to model the potential costs and benefits of achieving zero plastic waste. This scenario used a 90% landfill diversion rate as a proxy for zero plastic waste and assumed that: i) plastics production and end use applications increased but followed the same patterns as in 2016, ii) mechanical recycling was quadrupled from its business as usual level; iii) chemical recycling was significantly scaled up, taking into account readiness levels and associated learning curves and iv) energy from waste was leveraged to deal with the remaining volumes and hard-to-recycle plastics.

The 90% recycling scenario is not a prediction or a recommendation: it is an illustration of what zero plastic waste could look like given current product designs and emerging value recovery technologies. Changes in plastic production and design would open the door to higher value recycling and recovery options. However, even without such changes, a preliminary comparative analysis shows that 90% recyclingwould deliver significant benefits to Canada in comparison to business as usual: CA$500 million of annual costs avoided, 42,000 direct and indirect jobs created, and annual greenhouse gas emissions savings of 1.8Mt of CO2 eq.

About the Study

The report then describes future scenarios up to 2030, highlighting potential paths for the plastics value chain, in particular relating to end-of-life performance. The report then presents a high-level economic, environmental and social impact assessment to discuss the scenarios and their feasibility. Finally, the report introduces a review of policy measures that could be implemented to support the growth of the secondary plastics markets in Canada.

ECC funded and coordinated the study. It was conducted by a consortium the included Deloitte and Cheminfo Services.

Tire-Derived Fuels Making Inroads in Canada

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Written by Jonathan D. Cocker, Baker McKenzie

Following some recent key milestones for the tire-derived fuels industries, it appears that TDF is now positioned for significant growth across Canada in the coming years.  It hasn’t been easy in light of long-standing environmental concerns and pressures for circular economy solutions for end-of-life tires but TDF may well be poised to gain ready acceptance as part of Canada’s resource recovery strategy.

Nova Scotia Legal Challenge Unsuccessful

The watershed moment for TDF in Canada arguably came in 2018.  The Province of Nova Scotia first approved TDF as a supplemental energy source for a cement plant facility in Brookfield, Nova Scotia in 2017 on a 12-month pilot project basis.

In so doing, the ministry relied, in part, on a detailed environment study conducted for the proponent by Dalhousie University which compared the greenhouse gas emissions from TDF-supplemented fuels favourably against existing the coal sources.  The report was funded by the Natural Sciences and Engineering Council of Canada, giving it further clout.

Local residents challenged the ministry’s approval on environmental and procedural grounds – both of which were rejected in a March 2018 decision.  This allowed the proponent to commission the pilot project by August 2019, with a daily consumption rate of 20 metric tonnes of whole tires.

Brookfield Emissions Results Likely Critical to Industry Aspirations

The last hurdle to a full scale commercial TDF-fuel additive kiln at Brookfield will, of course, be the resulting emissions, concerns about which have long-plagued the industry.  Both the proponent and an independent group from Dalhousie will be collecting and reporting on a wide range of emissions data to the ministry, with a first planned public release of certain emissions information set for early in 2020.

It is difficult to overstate the importance that these results will have on the TDF industry across Canada.  There remains substantial opposition to TDF-usage in any application, including cement, and a failure to meet the emissions conditions for the pilot project approval will likely mean a further moratorium on project development, further placing the TDF industry behind other resource recovery technologies and processes.

Ontario Permits Waste Rubber Fuel Source in 2019

The battleground over TDF is far from new in Ontario.  In 2011, a group of community interests, including none other than Gord Downie, successfully opposed the use of TDF at a cement production facility in Bath, Ontario.  The proponent subsequently revised its alternate fuel sourcing plans to include two low carbon fuel categories (LCFs), which have since been subject to emissions testing for a number of years.

Of these categories, “LCF 3” includes:

“Non-recyclable rubber, rubber recycling by-products (including polyester/nylon fibre from tire recycling facilities) and non-recyclable plastics.”

An amended environmental approval was granted to the proponent in August 2019 to augment the alternative feedstock to include the principal LCF 3 materials, thereby allowing rubber waste material (with its superb BTU values) to be included with lower carbon and less energy-rich materials, including various biomass sources.  A graduated approach, which does not preclude moving to TDF as the market conditions evolve.

TDF Established Practice Elsewhere

It is also worth noting that the current disputes over TDF come against a backdrop of established TDF usage in heavy industry elsewhere, including in the cement industries of the United States and Europe.

Further, the provinces of Quebec and British Columbia have long permitted TDF in cement production facilities, though none has been approved recently (in the circular economy era).  Finally, there are other materials whose fuel usage is also contentious, such as roofing shingles, telephone poles, used oils and plastics, which have also been approved for cement production in Canada.  TDF does not, in fact, have a unique environmental legacy.

TDF may remain a lightning rod for industries such as cement production, but recent developments suggest that rapid expansion of TDF usage may be near, particularly following a successful pilot project.  It may also be that the coming regulated circular economy regimes across Canada will, ironically, contribute to TDF growth with privatized and non-prescriptive EPR obligations that may allow producers to economically benefit from TDF resource recovery.

This article has been republished with the permission of the author. It was first published on the Baker McKenzie Environmental Law Insights website.


About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations. Mr. Cocker was recently appointed the first Sustainability Officer of the International Bar Association.

Canada: Construction Waste Rules Set to Change

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Written by by Jonathan D. Cocker, Baker McKenzie

The numbers speak for themselves – construction, along with renovation and demolition (CRD) waste has long been one of the largest waste streams in Canada (e.g. wood, asphalt roofing, drywall, etc). Further, unlike waste streams of similar size such as municipal solid waste and organics/food waste, CRD waste has been relatively untouched by regulation in either its generation or its disposal.  This appears about to change.

CAP Required EPR for CRD Wastes by 2017

The Canadian Action Plan for Extended Producer Responsibility, CCME, September 2009, (the CAP) included important cross-country commitments by every province and territory to require Extended Producer Responsibility (EPR) for CRD wastes within 8 years of the CAP.

CRD waste was to be subject to EPR along with “Phase I” wastes and other “Phase 2” wastes such as furniture, textiles, carpeting and appliances.  While there has been demonstrable success among the provinces and territories with Phase I material EPR programs, the inverse has been true for Phase II, including for CRD waste:

Despite these documented successes, there continues to be major challenges. Firstly and most importantly, the CCME goal for action by 2017 on the Phase 2 product list (construction and demolition materials, furniture, textiles and carpet, appliances and ozone depleting substances) will not be met. Construction and demolition materials are a major component of the solid waste stream both by weight and percentage and despite a few studies, small pilot programs and private initiatives there has been little progress in this area.

Overview of the State of EPR in Canada: What Have We Learned?, EPR Canada, September 2017

From the Shadows to the Spotlight?

Sceptics might ask why CRD waste cannot simply remain in the regulatory no-man’s land between unfettered disposal and comprehensive waste management- namely, the soft industry CRD waste goals.

After all, Ontario has quietly dropped CRD waste from its circular economy commitments.  The former administration’s 2016 Strategy for a Waste-Free Ontario: Building a Circular Economy, called for the construction and demolition sectors to dramatically increase resource recovery efforts, including through amendments to the “3 Rs” Industrial, Commercial & Institutional Sectors waste regulations.  Since then, CRD waste has vanished from the province’s EPR regulatory agenda (other than in respect of soils).  But perhaps, EPR alone was never the answer for all CRD materials.

The Canadian Council of Ministers of the Environment (CCME), after a 3-year consultation and policy development process, aims to return CRD waste to the policy forefront with a much broader and more robust set of policy requirements to reduce and resource recovery CRD waste.

CCME Aims to Change CRD Industries

The new CCME Guide for Identifying, Evaluating and Selecting Policies for Influencing Construction, Renovation and Demolition Waste Management, 2019 contains a nearly exhaustive study of the policy options provinces and territories may adopt in reducing and diverting CRD waste.

Among the options presented:

  • Permitting process to better incorporate CRD waste reduction and diversion;
  • Producer responsibility programs for flooring, drywall, window glass, brick, asphalt roofing and engineering/treated wood;
  • Restrictions upon CRD waste transportation and disposal bans;
  • Levies upon virgin materials and non-divertible CRD wastes;
  • Building code, certifications and standards changes to require CRD waste reduction/diversion; and
  • Public procurement to include CRD waste management.

Clearly, the days of the 3Rs as exhaustive CRD waste regulation are numbered.

Regional Approaches to CRD Regulation

In some of the CCME waste / EPR policies, typically relating to specific products and consumer materials, there is an understandable push for cross-Canada uniformity of approach and related regulatory requirements.

For CRD waste, however, the CCME allows a combination of the best policy options above to be “tailored to [a jurisdiction’s] unique political, economic and market conditions.” How to resolve local and regional needs with industry’s desire for consistent and transparent national standards will be just one of many areas of interest to CRD industries.

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The CCME has arguably laid out a detailed and instructive regulatory roadmap for CRD wastes. It is now up to the CRD industries and their partners to determine how to make the most out of these challenges and opportunities across Canada.

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 Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations. Mr. Cocker was recently appointed the first Sustainability Officer of the International Bar Association Mr. Cocker is a frequent speaker and writer on environmental issues and has authored numerous publications including recent publications in the Environment and Climate Change Law Review, Detritus – the Official Journal of the International Waste Working Group, Chemical Watch, Circular Economy: Global Perspectives published by Springer, and in the upcoming Yale University Journal of Industrial Ecology’s special issue on Material Efficiency for Climate Change Mitigation. Mr. Cocker maintains a blog focused upon international resource recovery issues at environmentlawinsights.com.

Battery Industries Prepare For Circular Economy

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Written by Jonathan D. Cocker, Partner at Baker McKenzie

With some important recent developments, the battery industries and their resource recovery partners have taken significant steps in preparing for the coming individual producer responsibility (IPR) circular economy laws.

More specifically, Ontario’s Resource Recovery and Circular Economy Act will impose regulated IPR obligations upon makers, brand owners and first importers of a range of small and large size batteries as of June 30, 2020.   Clearly, the time for needed industry-wide structural adjustments to meet this challenge is now.

Single-Use Batteries, But What Else?

There has been some shuffling between the batteries and electronics industries as to when and how the two sectors will transition to IPR.  Critics of the transitions have argued that some or all of the battery categories must be regulated under IPR at the same time as e-waste, December 31st, 2020.

The Batteries Regulation, likely due for release in the coming weeks, will hopefully make clear as to which categories of batteries will be caught by this resource recovery law beyond single use batteries – which will necessarily be regulated by June 30th, 2020.  The draft regulation proposed the following battery categories:

  1. Small single use batteries weighing 5 kilograms or less
  2. Small rechargeable batteries weighing 5 kilograms or less
  3. Large batteries weighing more than 5 kilograms.

It may be that some of these categories, or industry-specific battery types within these proposed categories, have staggered compliance dates.  Either way, Ontario’s batteries are joining tires as North America’s first circular economy-regulated materials.

The Case for Some Exclusions

Perhaps the most contentious products potentially caught under the coming Batteries Regulation are lead acid batteries, commonly used in vehicles.  The Canadian Battery Association has long run a voluntary stewardship program in Ontario, as well as some regulated programs in certain other provinces, for the successful recycling of lead acid batteries.

Used Car Batteries

The value of imposing regulated IPR for lead acid batteries in Ontario has been openly questioned by the CBA, which boasts very high new battery recovery rates already.  Its recovery rate includes other types of lead-acid battery applications:  energy storage, motive power as well as batteries for other applications such as boats, skidoos etc that are not legally considered vehicles. The CBA takes the position that all lead-acid batteries within a circular economy should be exempt. Exempting vehicle batteries under IPR, when their tires and waste oils (and perhaps other components) will be governed by the resource recovery regime, does appear to be a challenge.

Further, there remains the thorny issue of how responsibility is allocated between battery and electronic producers for embedded batteries.  The Batteries Regulation will hopefully resolve this.

No Institutional Incumbent

Unlike tires and the coming transition for e-waste (tech and A/V), where the government-designated industry-funded organization has been positioned to transition to becoming the IPR producer responsibility organization (PRO), the private sector response to batteries will be different.

Call2Recycle, traditionally a voluntary market collector of recyclable batteries in Ontario, does have experience operating programs to meet regulated battery recycling obligations (rechargeable and single use) in some other provinces of Canada.

Call2Recycle has signaled its intention to be a registered PRO for certain categories of batteries.  It would appear likely that the largest brand owners will obtain their recovery services through this battery PRO, but producer choices remain to be finalized once the market fully privatizes.

The CBA also has a Memorandum of Understanding with Call2Recycle, which will serve both parties under IPR in Ontario and elsewhere.

RMC – Call2Recycle Partnership Agreement

Most recently, a partnership agreement for the management of end-of-life single use and rechargeable batteries has been entered into between Call2Recycle and Ontario-based Raw Materials Company (RMC).

RMC has been the only in-province recycler of waste-regulated batteries under the current government-directed program and will likely gain opportunities to enhance its competitive position with both Call2Recycle and other battery producer groups, as this resource recovery market developments.

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While there are only slightly more than 6 months for the battery industries to prepare for the circular economy, there are clear signs that anticipatory market adjustments are already happening to meet the coming demands of the Batteries Regulation, just as the legislation had intended.

This article has been republished with the permission of the author. It was first published in the Environmental Law Insights.


About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations. Mr. Cocker was recently appointed the first Sustainability Officer of the International Bar Association Mr. Cocker is a frequent speaker and writer on environmental issues and has authored numerous publications including recent publications in the Environment and Climate Change Law Review, Detritus – the Official Journal of the International Waste Working Group, Chemical Watch, Circular Economy: Global Perspectives published by Springer, and in the upcoming Yale University Journal of Industrial Ecology’s special issue on Material Efficiency for Climate Change Mitigation. Mr. Cocker maintains a blog focused upon international resource recovery issues at environmentlawinsights.com.

Too Much Waste, Too Little Investment

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Written by Mark Bernstein, Alicia Marseille, and Rajesh Buch, Arizona State University and co-authored by Kimberley Marumahoko, Venkatesh Kini, and Peter Schelstraete, Ubuntoo

Fifty years ago, a US undersecretary of the Interior told a waste management seminar in Houston that “trash is our only growing resource.” Forty-two years and only a little progress later, the Bureau of International Recycling proclaimed, “the end of the waste era.” In her recent book “Waste,” UC Berkeley Professor Kate O’Neill describes waste as a global resource frontier. She suggests that wastes are no longer unwanted, but instead will help fuel a richer and more sustainable future. Despite these proclamations for the past fifty years and the knowledge that there is ‘value’ in what we throw away, we continue to put most if it into landfills, our waterways and our oceans. And micro-plastics now are showing up in the air as well.

By 2050, the world is expected to generate 3.4 billion tons of waste annually, increasing drastically from today’s 2 billion tons. In the US, municipal waste is expected to grow 20% by 2030. Single use plastics and cardboard are driving most of this growth. Some people say it won’t be too long before there are more plastics in the ocean than fish. Just this week, a beached sperm whale was found with a 210-pound ball of waste — predominantly plastics — ingested in its belly, likely the cause for its death.

It is possible we are finally beginning to see an attitude shift. Urban waste management is getting more expensive and taking larger shares of municipal and corporate budgets. Tipping fees in the U.S. are expected to rise 2–3% per year over the next few years with some regions facing 5% a year increases in costs. For the past two decades, recycling has been a viable solution to keeping waste costs in check, but this was driven mostly by cost effective, low cost end markets existing through shipping materials around the world mostly importantly to China. In 2018, this changed when China stopped importing materials. This combined with an increasingly aware public, may start to change the dynamics.

The future of taking advantage of the value in our waste stream is to invest in innovation. One thing that the easy exporting of waste to China did, was to hinder innovation in the recycling space. When we analyze the investment streams in the waste management industry, we see evidence of this. Only 0.3% of international development financing has gone into solid waste management. The industry has also been lacking substantial investment in innovation. As one entrepreneur half-jokingly told us:

“Innovation in waste management means buying a bigger excavator.”

Ubuntoo, in partnership with the Rob and Melani Walton Sustainability Solutions Service at Arizona State University (ASU), researched global data on startup investments between 1995 and 2019. Investments in startups is a great indicator for industry innovation. The investments in these spaces means that entrepreneurs see opportunity to develop new business models and innovation and are willing to dedicate their professional lives to those. And on the other hand, it signals that investors see the market opportunity for value and wealth creation.

Source: Crunchbase, 1995–2019

WeWork funding in 8 years is double that of all recycling startups in the past 24 years

The numbers for recycling are very disappointing. Whereas investments have poured into industries like healthcare, software, energy and transportation, only 0.22% of the total startup investments have found their way towards waste management and recycling startups. WeWork, the struggling “tech” real estate company founded in 2010, raised a total of $12.8 billion in 14 funding rounds. That is double the amount of all recycling startup funding over the last 24 years!

There are many reasons for this investment shortfall:

  1. As noted above, the ease and low cost of sending materials to China meant there was no incentive to innovate;
  2. Fluctuation in material markets over time have hurt overall business predictability. Global markets for secondary materials are subject to policy changes, economic ups and downs and pricing of virgin materials. In the case of plastics for example, crude oil costs have remained at very low levels, effectively out-competing recycled materials. In addition, in many places around the world the low cost of landfilling has hampered the growth of a recycling market;
  3. Many of the benefits of effective recycling and sustainable materials development are not as visible to people and are about “avoidance” of cost. At a macro-level, an effective recycling system can prevent negative impact on human health and climate change. But the benefit of that is hard to calculate and even harder to monetize;
  4. This is a tough business to be in. Unlike Social Media or SaaS (Software as a Service), most startups in the space of recycling and materials are dealing with physical interconnected set-ups, complex supply chains and a much longer incubation period. For a VC looking for an exit in 3–5 years and multiples exceeding 10x, investing in the digital space has been a more attractive proposition;
  5. Until recently, there were no clear policy drivers that created the right environment for investments in this space.

Time to invest in our only rapidly growing resource: waste

Although the past five decades have been disappointing, we are now entering an era of unprecedented opportunity. Over the past few years we have witnessed the emergence of a new generation of entrepreneurs and investors, working hand in hand to create material impact. As the graph below shows, there was an increase in investment activity 2018, perhaps in response to the China ban, and early indications show that we are on the same track in 2019.

Source: Crunchbase 2010–2019

We believe that the underlying drivers for new investment in this space can be systemic and long-term, but they will need some help. The following factors can drive this:

  1. Governments around the world are changing policies and legislation related to single-use plastics and waste imports. A flurry of Asian countries has changed their stance on waste imports. Many governments around the world have been stipulating collection targets and guidelines for the inclusion of recycled plastics (eg. European Union guidelines to include 30% recycled plastic in beverage bottles by the year 2030). And, politicians are embracing the idea of new materials. Earlier this year during the VivaTech conference, French president Emmanuel Macron endorsed bioplastics and underlined its potential for job creation. This already is starting to have a tremendous impact on the materials market. Many large and small food and beverage companies are scrambling to assure supply of recycled PET while investing in new innovative materials.
  2. We are witnessing a groundswell of entrepreneurs, innovators and university researchers across the globe in this space. They have access to technologies and innovations that used to be accessible only to large companies before: AI, blockchain, robotics, object recognition technology, bio-technology and materials. It is a tidal wave of opportunity that is here to stay and that will have tremendous impact over time.
  3. The advent of big data is starting to have an impact on the recycling industry. Tech companies and large-scale producers are using consumer behavior data and material tracking to identify new opportunities and markets for recycled materials.
  4. A rapidly growing number of impact investors, family offices and corporate VCs have capitalized on the opportunities. Organizations like The Closed Loop Fund, Circulate Capital and the Alliance to End Plastic Waste are making tangible investments in the space of recycling — not just in infrastructure for the “here and now” but also in innovation for tomorrow. We have seen corporate VC arms of companies stepping up to the plate, mostly driven by economic opportunity, partially also by social responsibility. For example: AB Inbev (100+ Accelerator), Danone (Danone Manifesto Ventures), Levi Strauss & Co., Nike, Suez, Henkel and Unilever– as well as household names in the recycling and plastics industry.
  5. The consumer is voting with their wallet. In 2018, the Stern Center for Sustainable Business has conducted an extensive study on market performance of more than 71,000 products in the United States. They found that 16.6% of products in the US market that have sustainability claims have contributed to more than 50% of the market growth between 2013 and 2018! And although just a portion of those claims were related to recycling and packaging materials, it shows that sustainability buying behavior is not a fringe phenomenon anymore.

In light of this, Arizona State University and Ubuntoo are stepping up our commitments too.

ASU is expanding on their successful regional economic development platform, the Resource Innovation Solutions Network (RISN), to launch the Circular Economy Regional Innovation Hub (CERIH). The RISN platform was a successful partnership between ASU’s Solutions Service and the City of Phoenix that worked with over 16 early stage companies over 2 years to create the following impact: $3.86 million in capital raised, $5.17 million in revenues generated, 7 patents filed, and 22 products launched. CERIH will expand beyond the boundaries of Phoenix and will be an economic driver for developing and accelerating circular solutions and technologies to meet the needs of both public and private sector entities. CERIH will continue working with early stage companies to provide unique access to resources and support from ASU, and it will be the first of its kind to focus on accelerating regional circular economy solutions with unique access to municipal resources, space for pilots and global partnerships.

Ubuntoo is announcing the development of a Funding Marketplace. Of the 700+ innovations that we feature on our platform, more than 70 have indicated that they are currently seeking funding. At the same time, many corporate VCs, family offices and impact VCs are already Ubuntoo members. Given our unique access to the ecosystem and our comprehensive global network, we see ourselves playing an important role in accelerating investments towards innovations that reduce or eliminate plastic waste and pollution.

This article has been a collaboration between Arizona State University Rob and Melani Walton Sustainability Solutions Service and Ubuntoo.


Mark Bernstein, Chair, Rob and Melani Walton Sustainability Solutions Service, Arizona State University. Mark Bernstein has 25 years of experience pioneering energy and sustainability solutions through robust analysis and innovative frameworks across academic, private, public and non-profit sectors. As the Rob and Melani Walton Chair for Sustainability Solutions, Mark leads an effort to make measurable impacts on sustainability and influence decisionmaking by utilizing the deep knowledge and experience resources across Arizona State University and drive collaborations and partnerships that will create global solutions.

Alicia Marseille, Director of Innovation, Rob and Melani Walton Sustainability Solutions Service, Arizona State University. Alicia Marseille serves as the Director of Innovation following her successful directorship of the RISN Incubator, a circular economy accelerator within the Resource Innovation and Solutions Network, or RISN. The RISN Incubator is a collaboration between the Rob and Melani Walton Sustainability Solutions Service and Entrepreneurship + Innovation departments at Arizona State University along with the City of Phoenix and is partially funded by a U.S. Economic Development Administration grant.

Rajesh Buch, Director, Sustainability Practice, International Development, Arizona State University. Rajesh Buch drives Arizona State University’s efforts to provide solutions to the complex sustainability challenges facing the developing world by linking ASU’s world-class researchers to international development funding agencies, and by fostering partnerships with NGOs, the public and private sectors, and foundations.

The Role of Chemical Recycling in a Circular Economy and Effective Waste Management

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Written by Zoltan Kish, Ph.D., Quasar Science Tech

The increasing amount of waste is one of the most challenging problems facing the World, which creates enormous environmental problems. According to the World Bank, Canada produces the most waste per capita in the world. Additionally, Canada recycles just 9 percent of its plastics. Banning foreign waste import by China and other counties has not helped to waste recycling business in Canada. In addition, shifting the recycling program to the producer responsibility by the Ontario Government, will reduce further plastic waste recycling and will increase the plastic pollution. A ban of certain single-use plastic products (e.g., straws, bags) may not solve the spread of plastic litter and environmental problems. Without more effective and sustainable ways to manage produced waste, more and more waste will end up in landfills polluting our land, water, and air.

At the same time, we have a tremendous business opportunity to convert waste into usable sustainable products. According to a market study report prepared by Market Insights Reports, the smart waste management market was valued at $1.41 billion (USD) in 2018 and is expected to reach $5.19 billion by 2024, registering a compound annual growth rate (CAGR) of 25.68%, during the forecast period of 2019-2024.

Contaminated and mixed waste products (e.g., plastic, paper, industrial waste, medical waste, MSW) are challenging to recycle by mechanical/physical processing. Especially, traditional plastic waste recycling has difficulties and limitations. Mechanical sorting is not effective for mixed plastic waste. Thousands of different types of plastic are manufactured by combinations of different resin types, dyes, and additives. In addition, the plastic material quality is very susceptible to contamination. Even carefully selected plastic materials can only be recycled limited times in similar products since it degrades every time after reheating. Therefore, most plastic products are downcycled into items of reduced value, such as textiles, toys or fibres, and eventually, end up in landfills and water resources creating tremendous environmental problems. Replacing plastics with alternative materials, such as glass and metals would cost more to manufacture due to the higher energy and other resource consumption. The problem is the way of the current waste management operating.

On the other hand, waste plastic can be recycled into high-value products using advanced and cost-effective waste conversion technologies. The circular economy is not only based on simple reusing waste products. The purpose the recycling is to redesign and convert waste into forms retaining as high value as possible in a circular economy. We need sustainable and effective waste management to protect our environment and develop a working circular economy. In a circular economy, chemical recycling can play a pivotal role in waste conversion into usable materials and clean energy.

Chemical Recycling for a Circular Economy

Chemical recycling as waste recycling using effective waste conversion technology is essential for a working circular economy. Illinois and Ohio have become the most recent states to pass laws making it easier to build chemical recycling facilities, regulating them as recycling operations rather than waste processing plants. Canadian Government could also consider that as a tool to develop a new approach – “Chemical Recycling” in waste management. Regrettably, Canada and other G7 countries are planning to use waste-to-energy incineration as part of a plastic pollution solution. However, incineration is a very costly and inefficient way for waste conversion into energy and generating highly toxic and carcinogenic pollutants.

The environmental impact of waste can be minimized by proper waste management applying advanced waste conversion technologies. The government should address the demand to solve the incredible waste accumulation problem by developing appropriate tools for waste management challenges and supporting the development of effective waste conversion technologies. We should focus more on waste diversion from landfills and water resources, and the conversion of waste into high-value products. Garbage can be converted into high-value clean energy and sustainable products using advanced and cost-effective waste conversion technologies, such as anaerobic digestion, pyrolysis, gasification, plasma-enhanced gasification, and steam gasification. Therefore, the circular economy should include the use of effective waste conversion technologies to produce high-value usable products. Perspectives of different waste conversion technologies are provided in the article – “Perspectives on Waste-to-Energy Technologies”.

Chemical Recycling should be based on reliable and cost-effective waste conversion technologies. Therefore, it is very important to do technical due diligence before investing and applying new technology to prevent wasting time and money. Regrettably, investors often do not take the time to evaluate the proposed technology and, therefore, the underlying scientific/technological basis of the business is often neglected in the CleanTech sectors. As a result of this, enormous and overpriced facilities were built producing not profitable products. In addition to financial data and management of the company, the underlying scientific/technology base of the applied technology should be considered. Science is supposed to be an essential pillar of a successful and sustainable business. Consequently, it is very important to properly establish the underlying scientific/technology base for applied technologies to build a successful waste conversion plant. The success of waste conversion technology applications depends on the following main factors:

  • The underlying scientific/technological basis of the process
  • Implementation of effective scrubbing systems to remove contaminants
  • Process modelling
  • Mass & Energy balance
  • Proper engineering design
  • Financial data based on mass & energy balance
  • Waste feedstock evaluation, preparation and availability
  • Waste energy conversion efficiency
  • Quantity and quality of the produced products
  • Applications of the products
  • Cost-effectiveness of the project

As a result of many years of development, a unique and cost-effective waste convection technology has been developed and tested at the pre-commercial waste conversion facility.  The developed technology is based on a steam gasification process in combination with a reliable scrubbing/cleaning system. The steam gasification technology represents a potential alternative to the traditional treatments of waste feedstocks (e.g. plastic, biomass, MSW, sewage sludge, industrial by-products) to produce high-quality syngas, which contains no noxious oxides and higher hydrogen concentration than products produced by traditional gasification. The chemistry is different due to the high concentration of steam as a reactant and the total exclusion of air and, therefore, oxygen from the steam reformation process. The proposed technology using an indirectly heated kiln in combination with a reliable and effective scrubbing/cleaning system without a feedstock sorting requirement. The technology uses “off the shelf” commercially proven equipment, which significantly lowers the capital and operating costs compared to other waste conversion technologies.

In a working circular economy, a solution for waste disposal and clean energy and sustainable product regeneration is an effective waste conversion technology application based on thermo-chemical and bio-chemical processes. The produced product type depends on the types of feedstock and reactants, and the applied processing conditions as applied physico-chemical interaction conditions in the system. The applied waste conversion technology type depends on the waste feedstock composition and the market requirement on the produced products from waste. The suitable waste conversion technology can divert waste from landfills and convert waste into usable products and prevent contamination of our environment. The waste steam gasification technology as a cost-effective process is most suitable for contaminated and mixed waste (including plastic waste) conversion into various forms of high-value sustainable products, such as electricity, hydrogen, liquid synthetic fuels, and chemicals. At the current stage, based on market demand, hydrogen production from mixed waste (including contaminated plastic waste) is the most cost-effective solution. Using the steam gasification technology for waste conversion into hydrogen is an opportunity for a profitable business, which can solve the world’s biggest problem – the enormous waste accumulation.

There is a requirement for a new and innovative approach in the development of a solution for waste management challenges, waste recycling, plastic waste pollution reduction and a working circular economy. The used waste conversion technologies should be efficient and combined with a reliable scrubbing/cleaning system to remove contaminants in order to generate clean/ renewable energy and other sustainable products and prevent pollution of the surrounding environment. The application of advanced and effective waste conversion technologies can offer an innovative solution to the waste accumulation problem and making a positive impact on the protection of our environment.

Chemical recycling based on cost-effective waste conversion technologies can provide a fundamental shift in the way of produced waste handling in a circular economy. In the working circular economy, the use of cost-effective waste conversion technologies is an innovative waste management strategy to divert waste from landfills, produce clean energy and sustainable products, reduce depletion of natural resources, protect our environment, save time and money. Chemical recycling is a comprehensive and innovative solution to the complex problem of waste management and moving towards a circular economy.


About the Author

Dr. Zoltan Kish has a Ph.D. in Chemistry with over 25 years of diverse industrial and academic experience and contributed to more than 70 scientific publications. He has developed and managed complex research and development programs related to alternative/renewable energy, clean technologies, effective waste conversion into usable products, sustainability, and advanced materials applications. Dr. Kish was the Director of Research & Development at two Canadian alternative energy companies where he focused on R&D and commercialization of unique waste conversion technologies and reliable scrubbing/cleaning systems to produce clean and sustainable energy products.