Six Things To Consider Before The Coronavirus Impacts Environmental Compliance

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Written by Patrick Traylor, Conrad Bolston, and Misty M. Howell, Vinson & Elkins LLP

Companies with environmental compliance obligations should think carefully about and plan ahead for how the coronavirus outbreak might affect their ability to comply. Depending on the severity of the outbreak, companies may run out of the supplies they need to operate pollution controls, or their environmental compliance departments might become short-staffed, which could result in missed monitoring, recordkeeping, or reporting. Here are six things to keep in mind.

Enforcement discretion. Think about developing a strong argument for why federal and state environmental enforcement agencies should exercise their enforcement discretion not to pursue noncompliance caused by an emergency. The EPA has a long-standing policy that allows for “no action” assurances to be issued to excuse noncompliance during emergencies. The prerequisites for an assurance are stringent, and a requestor must demonstrate that the public interest in excusing noncompliance outweighs the public impacts from the noncompliance. These assurances may only be issued by the Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance, so the work of obtaining them must be conducted at EPA Headquarters.

Malfunctions and upset defenses. Think about how malfunction and upset provisions in federal and state regulations and many permits can provide protection against enforcement, but only if the company complies with the prerequisites for these provisions. Each state (and some federal regulations) has different malfunction and upset rules, so it will be important to meet the stringent conditions of these rules before noncompliance will be excused.

Force majeure. Think about whether the company is subject to federal or state settlements that might have a force majeure clause that could excuse noncompliance. Most federal judicial consent decrees have force majeure clauses that could excuse noncompliance, but require that companies use “best efforts” to avoid noncompliance. Companies should carefully review their settlements to see how to comply with their force majeure provisions. And some states have “act of God” statutes under which the inevitable consequences of such events (which may include “other catastrophes”) are deemed to not constitute violations at all.

Impact of staffing challenges. Think about how staffing challenges might affect the company’s ability to comply. With companies beginning to shut down operations, it is possible that environmental compliance staff might not be able to work, and the company might miss monitoring, recordkeeping, and reporting obligations. A company will want to very clearly justify decisions to excuse environmental compliance staff from work, especially if a “no action” assurance is sought or a malfunction/upset/force majeure claim is made.

Don’t forget your supply contracts. Think about the terms and conditions of supply contracts that are critical for environmental compliance and consider taking steps now to make sure suppliers comply with their contracts. If they cannot, think about whether a supply failure could qualify as a malfunction, upset, or force majeure event.

After the storm has passed. Think ahead to when the crisis has passed, and governmental and non-governmental organizations evaluate whether the emergency justified any noncompliance.


About the Authors

Patrick Traylor is a partner in Vinson & Elkin’s Environment and Natural Resources practice and was most recently the Deputy Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance in Washington, D.C., where he helped oversee the EPA’s enforcement response during natural disasters.

Conrad Bolston is a senior associate in Vinson & Elkin’s Environment and Natural Resources practice. He has assisted clients with a variety of federal and state environmental enforcement matters, environmental due diligence efforts, regulatory guidance, internal investigations, and litigation.

Misty M. Howell is an associate in Vinson & Elkin’s Environment and Natural Resources practice. She has assisted clients with a variety of federal environmental enforcement matters, due diligence efforts, government investigations, and litigation. 

What Power Does Canada Have to Restrict Single-Use Plastics?

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Written by Jonathan D. Cocker, Baker McKenzie and Peter Hargreave, Policy Integrity Inc.

With all of the talk from the Government of Canada about the coming laws targeting single-use plastics (SUP), it’s worth asking whether the Parliament has such powers and what’s needed for them to act on SUP.   After all, the federal government has ceded much of its role to the provinces and territories which regulate over environmental protection generally, including most waste management matters, and some provinces have expressed hostility and a willingness to commence legal challenges to any encroachment on their jurisdiction, often on environmental matters such as climate change.   

Regional exceptionalism has become the norm as the federal government has for decades left the provinces and territories to take the lead without national coordination. As a result, the federal approach to SUP which will inherently value (in some measure) national consistency over regionalism will have difficulty in establishing balance, particularly given that some provinces rely upon plastics production as critical revenue sources.  So where exactly does the federal government believe they possess the powers to fulfil their promises to impose a SUP law across Canada?

CEPA and Toxic Substances

The federal government will, by all accounts, attempt to use Part V of the Canadian Environmental Protection Act, Controlling Toxic Substances.   Specifically, Environment and Climate Change Canada has the power to regulate plastics under section 90(1) of CEPA, if satisfied that the substance is toxic, to place them on the List of Toxic Substances, which is Schedule 1 to CEPA. 

Findings of toxicity were made for plastic microbeads in toiletries in 2017. Section 64 defines a substance as toxic if

“it is entering or may enter the environment in a quantity or concentration or under conditions that:

  1. have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
  2. constitute or may constitute a danger to the environment on which life depends; or
  3. constitute or may constitute a danger in Canada to human life or health.”

On the Toxic Substances List already are substances Canadians would recognize as inherently dangerous such as lead and mercury.  In contrast, the federal government would be seeking to make a common household material, broadly used to contain and preserve our foods, medicines, etc. equivalent under CEPA to these clearly toxic substances.  It would be a difficult argument to claim that plastics are toxic at all times and for all purposes.    

The ECCC presumably intends to assess plastics as toxic on a more narrow and functional basis – namely that plastics become plastic pollution as they degrade over time, principally as waste material, especially when not managed properly at the end of life.  As waste management is admittedly a provincial/territorial area of legislative authority, the toxicity claim would blur jurisdictional lines.  In short, it’s not as straight forward as the federal government has suggested. 

The Test to Establish Plastics are Toxic

Curiously, while the test for plastics to be placed on Schedule 1 List is that plastics are toxic, the considerations the ECCC are to adopt in assessing a substance are expanded under section 68 to whether a substance is toxic or is capable of being toxic.  The considerations include:

  1. whether short-term exposure to the substance causes significant effects,
  2. the potential of organisms in the environment to be widely exposed to the substance,
  3. whether organisms are exposed to the substance via multiple pathways,
  4. the ability of the substance to cause a reduction in metabolic functions of an organism,
  5. the ability of the substance to cause delayed or latent effects over the lifetime of an organism,
  6. the ability of the substance to cause reproductive or survival impairment of an organism,
  7. whether exposure to the substance has the potential to contribute to population failure of a species,
  8. the ability of the substance to cause transgenerational effects,
  9. quantities, uses and disposal of the substance,
  10. the manner in which the substance is released into the environment,
  11. the extent to which the substance can be dispersed and will persist in the environment,
  12. the development and use of alternatives to the substance,
  13. methods of controlling the presence of the substance in the environment, and
  14. methods of reducing the quantity of the substance used or produced or the quantities or concentration of the substance released into the environment;

As this is a list of considerations and not a strict legal test, no particular item may be necessary or sufficient for the federal government to declare plastics are toxic – there is likely considerable latitude where the science supports concerns over environmental harm.

Does the Draft Assessment Provide Sufficient Scientific Support?

On January 31st, 2020, the ECCC released its draft Science Assessment of Plastic Pollution.   The assessment was not focused upon plastics itself, but rather on plastics when it comes pollution.   This might be understood as an assessment of how plastics are capable of being toxic and not a study on the inherent toxicity of plastics, which has a separate assessment process.  This itself is a departure from the ECCC’s common assessment process, although used for microbeads as arguably the first of those lifecycle toxicity tests.

The findings from the draft Assessment, still in consultation until the end of March, are limited to the pollution (read: waste) effects of plastics and not plastics absent their current usage:

The purpose of this report is to summarize the current state of the science regarding the potential impacts of plastic pollution on the environment and human health, as well as to guide future research and inform decision-making on plastic pollution in Canada. It provides a review of the available information on plastic pollution, including its sources, occurrence, and fate, as well as on the potential effects of plastics on the environment and human health.

It’s also notable that the draft Assessment is identifies as a “survey” of existing science and anticipates further research on plastics, even though the assessment is to serve as to “guide regulatory activities”. 

This report is not intended to quantify the risks of plastic pollution on the environment or human health, but rather to survey the existing state of science in order to guide future scientific and regulatory activities.

The broad remedial powers of the ECCC under CEPA likely cure these defects in science for a finding of plastics as toxics, but proceeding to regulation from the draft Assessment alone may open the ECCC up to challenges that more is needed before such as determination can be made. The ECCC seems to leave the door open to more science, perhaps as much due diligence as inquiry.

It is also worth noting that the regulation of SUP in the name of plastic pollution mitigation aligns with Canada’s commitments under the Ocean Plastics Charter. Such an agreement does not however vest the federal government with implementation powers it does not already have.

So Which Plastics Would Be Declared Toxic?

The draft Assessment divides plastics into two categories:  microplastics (5mm of less) and macroplastics (more than 5mm).   There is some other discussion regarding alternative plastics, such as biodegradable, compostable and bioplastics, but these arguably aren’t sufficiently addressed in isolation in the draft Assessment to warrant findings specific to these alternatives.   

It’s likely that each of microplastics and macroplastics will be the subject of distinct regulatory control measures on behalf of the ECCC under the coming law, with microplastics perhaps attracting the greater restrictions given the greater nexus to contamination.   After all, “microbeads” of 5mm or less are already listed as a toxic substance on Schedule 1.  

It’s also clear that the federal government views SUP as a more pressing matter in light of the 2021 implementation by member states of the European Union’s (EU) Single-Use Plastics Directive and the Ocean Plastics Charter.  In fashioning a Canadian version of a SUP law, it’s worth understanding what regulatory instruments the ECCC would have under CEPA.

The Range of Control Measures Available

Once some category of plastics are deemed “toxic”, the ECCC inherits a considerable range of control instruments to regulate those plastics.  Section 93 of CEPA provides the ECCC ability to control:

  1. the quantity or concentration of the substance that may be released into the environment either alone or in combination with any other substance from any source or type of source;
  2. the places or areas where the substance may be released;
  3. the commercial, manufacturing or processing activity in the course of which the substance may be released;
  4. the manner in which and conditions under which the substance may be released into the environment, either alone or in combination with any other substance;
  5. the quantity of the substance that may be manufactured, processed, used, offered for sale or sold in Canada;
  6. the purposes for which the substance or a product containing it may be imported, manufactured, processed, used, offered for sale or sold;
  7. the manner in which and conditions under which the substance or a product containing it may be imported, manufactured, processed or used;
  8. the quantities or concentrations in which the substance may be used;
  9. the quantities or concentrations of the substance that may be imported;
  10. the countries from or to which the substance may be imported or exported;
  11. the conditions under which, the manner in which and the purposes for which the substance may be imported or exported;
  12. the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export of the substance or a product containing it;
  13. the total, partial or conditional prohibition of the import or export of a product that is intended to contain the substance;
  14. the quantity or concentration of the substance that may be contained in any product manufactured, imported, exported, offered for sale or sold in Canada;
  15. the manner in which, conditions under which and the purposes for which the substance or a product containing it may be advertised or offered for sale;
  16. the manner in which and conditions under which the substance or a product containing it may be stored, displayed, handled, transported or offered for transport;
  17. the packaging and labelling of the substance or a product containing it;
  18. the manner, conditions, places and method of disposal of the substance or a product containing it, including standards for the construction, maintenance and inspection of disposal sites;

It is likely that a suite of these measures will be adopted distinctly for microplastics and macroplastics. (It’s not clear if alternative plastics would attract their own measures.)  The EU’s Single Use Plastics (SUP) Directive may be instructive, it sets out a number of measures including:

  • Aggressive recycling targets for beverage containers (77% by 2025 and 90% by 2030);
  • Design requirements for beverage containers (i.e., recycled content and tethered caps);
  • Labelling requirements for products that are often not disposed of properly (tobacco products, beverage cups, wet wipes and sanitary towels);
  • Expanded producer responsibility requirements; and
  • Bans by 2021 on single-use plastic cotton bud sticks, cutlery, plates, straws, stirrers, sticks for balloons; all products made of oxo-plastic; cups, food and beverage containers made of polystyrene foam.

Enter the Provinces

It is generally understood that most jurisdictions in the EU will achieve most of the outcomes in the Directive through EPR provisions. Given the diversity in approaches to EPR in Canada that could prove difficult to achieve as these efforts have firmly and institutionally rested with the provinces (and increasingly, territories) in Canada.  The ECCC is playing catch up and there are some questions related to their legislative authority over this mechanism without the support of the provinces. A comprehensive strategy around SUP will necessarily involve provincial /territorial for which the 2018 Canadian Council of Ministers of Environment’s (CCME) Strategy on Zero Plastic Waste was just the beginning of a new age of cooperation on (plastic) pollution.


About the Authors

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.

Peter Hargreave, the President of Policy Integrity Inc., has over 15 years’ experience in providing strategic advice in the development, implementation and oversight of public policy. Over his professional career, he has developed a strong network of relationships with regulators, public and private organizations, and other key stakeholders involved in environmental issues across Canada, the United States and abroad. He has extensive experience in assessing waste management policies at the federal, provincial, and municipal level across the country. He has also played a key role in leading major research efforts in the waste management sector including data capture and analysis, and understanding the economic and environmental impacts of various waste management activities.

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.