Waste Audits: Why Statistical Significance is not a useful objective

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by Calvin Lakhan, Ph.D., Faculty of Environmental Studies, York University

One of the foremost issues with auditing approaches is the erroneous use of the term statistical significance.

I can’t tell you the number of times I have heard stakeholders from all sectors ask the question, “Was it a statistically significant sample?” A term many of us loosely remember from undergraduate statistics is often seen as the benchmark for establishing the credibility and reliability of results.

Most often, people think the term us used to describe achieving a sufficient number of samples to enable meaningful/credible analysis. However, calculating statistical significance is a mathematical exercise that denotes collecting enough samples such that unexplained variance falls below a confidence interval threshold (i.e. stated alternatively, statistical significance implies that we have collected enough samples such that the sample has a 95% probability of approximating for the actual population as a whole).

While it may not seem particularly important to make this distinction, incorrectly using the term statistical significance implies a level of precision/accuracy that is generally not possible through waste auditing.

The number of samples required to achieve true statistical significance can number in the thousands, which is neither feasible, nor practical for a municipality/stakeholder. I remember once telling a stakeholder that the number of audits they could afford (which was in the dozens), resulted in a confidence level of less than 30% given the size and distribution of their city. The disappointment was palpable.

It is absolutely critical that any auditing methodology stress the limitations of what can and cannot be done with respect to sampling, and provide guidance regarding how to interpret/analyze the data. The goal of an audit should never be precision – rather, a sound methodological approach would be premised on “what’s the best I can do with the resources that I have?”

On a number of occasions, the university has been asked to develop “Calculators” that will automatically generate an answer to help guide audit sampling. While this is technically possible, the only guidance that an automatic calculator can provide is distributing samples based on relative population weighting, subject to a series of constraints inputted by the user of the tool. It is a “brute force” tool, that fails to consider the multitude of factors that contribute to both why and how waste audits should be conducted.

A more meaningful approach to developing an audit plan is to include “qualitative” factors. The first question a municipality/stakeholder has to ask themselves is: What is the goal of my audit?

Depending on a municipalities needs, you may want to forego mathematical distribution, and rely on judgement that specifically informs the questions that you have (or alternatively, using a combination of both) 

The University has prepared a short document outlining some the key considerations when developing a waste audit strategy, particularly for municipalities/stakeholders with limited budgets.

Given the considerable costs and time associated with conducting audits, it is of paramount importance that a methodologically sound approach be developed. So much of what we do in the waste sector (from policy planning, to waste projections) relies on this data.

Municipal Auditing Recommendations: General Guidelines

About the Author

Calvin LAKHAN, Ph.D, is currently co-investigator of the “Waste Wiki” project at York University (with Dr. Mark Winfield), a research project devoted to advancing understanding of waste management research and policy in Canada. He holds a Ph.D from the University of Waterloo/Wilfrid Laurier University joint Geography program, and degrees in economics (BA) and environmental economics (MEs) from York University. His research interests and expertise center around evaluating the efficacy of municipal recycling initiatives and identifying determinants of consumer recycling behavior. Calvin has worked as both a policy planner for the MOECC and as a consultant on projects for Stewardship Ontario, Multi Material Stewardship Manitoba, and Ontario Electronic Stewardship. Calvin currently sits on the editorial board for Advances in Recycling and Waste Management, and as a reviewer for Waste Management, Resources Conservation and Recycling and Journal of Environmental Management .

Recycled Content Standards for Plastic Products Coming?

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by Jonathan Cocker, Baker Mckenzie

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

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

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

Circular Economy and the Demand Side

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

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

The Commercial Case for Recycled Content Standards

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

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

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

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

How Would It Work?

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

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

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

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

About the author

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

Using biosolids to revegetate inactive mine tailings

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Vale Canada (a global mining company with an integrated mine, mill, smelter, and refinery complex in operations Sudbury, Ontario) has been working with Terrapure Environmental (an industrial waste management company) to utilize biosolids on its main tailings area.

For over 100 years, tailings from the milling operation have been deposited in the Copper Cliff Central Tailings impoundment. The facility is still active, but approximately 1,300 hectares are inactive and need reclamation work.


The Big Nickel in Sudbury (Photo Credit: pizzodisevo)

Over the decades, Vale has had some success in revegetation of its tailings area, but there are still large areas of bare or sparsely vegetated tailings, which have led to wind-erosion-management challenges. To control dust, Vale uses agricultural equipment to cover the tailings with straw or hay, as well as a chemical dust suppressant. These practices are costly, and they have to be done continuously to maintain an appropriate cover at all times. In 2012, Vale decided its tailings needed a permanent vegetative cover—not just to suppress dust and reduce erosion, but to improve overall biodiversity. They entered into discussions with Terrapure Organics Solutions (formerly Terratec Environmental) to collaborate on a trial project to apply biosolids on the mine tailings.

In 2012, Vale decided its tailings needed a permanent vegetative cover—not just to suppress dust and reduce erosion, but to improve overall biodiversity. They entered into discussions with Terrapure Organics Solutions (formerly Terratec Environmental) to collaborate on a trial project to apply biosolids on the mine tailings.

THE CHALLENGE

The biggest challenge was forging a new path for this type of work. Applying biosolids to mine tailings had never been done before in Ontario. Just to get the right permits and approvals took about two years. Vale Canada and Terrapure worked closely with the Ontario Environment Ministry to ensure standards compliance. Some of this work included helping to determine what those standards should be. Terrapure was able to contribute to these discussions, leveraging decades of expertise in safe biosolids application to agricultural land. Once the Environmental Compliance Approval came in April 2014, the team had to figure out the best application method and proper amount to encourage vegetation, which meant a lot of testing and optimizing.

THE SOLUTION

At first, Terrapure mixed biosolids into the surface layer of the tailings. Over time, however, the team learned that applying biosolids to the surface, without mixing, allowed for greater rates of application and coverage at a lower cost.

Terrapure also had to experiment with the right tonnage per hectare. After seeding four trial plots with different amounts of biosolids coverage—20, 40, 60 and 80 dry tonnes/hectare—it was determined that 80 dry tonnes was best for seed germination. At the time, it was the maximum allowable application rate. By the end of 2014, approximately 25 hectares of tailings were amended. Where the biosolids were applied, there were impressive results. Wildlife that had not been seen feeding in the area in years started to return. In 2015, the Ontario Environment Ministry approved an increase in the biosolids application rate to a maximum of 150 dry tonnes/hectare, which was necessary for providing higher organic matter and nutrient levels, and for stabilizing the tailings’ pH levels. This approval also increased the cap on the amount of biosolids that could be delivered to the maximum application rate per hectare. To enhance the program even more, Terrapure and Vale partnered with the City of Greater Sudbury to blend leaf and yard waste with biosolids. By blending these materials, the mixture becomes virtually odourless, its nutrients are more balanced and it allows for a more diverse application.


Glen Watson, Vale’s superintendent of environment, decommissioning and reclamation, surrounded by lush vegetation covering part of the company’s Central Tailings Facility in Sudbury

THE RESULTS

As of 2018, Terrapure has successfully covered over 150 hectares of Vale’s tailings with municipal biosolids. Vegetative growth and wildlife are well established on all areas where the team applied organics. Just as importantly, this project has diverted more than 25,000 dry tonnes of valuable biosolids from becoming waste in the landfill. Following the success of the initial trial, the Environment Ministry widened the approval to include all areas of the inactive tailings and a portion of the active tailings. At the current application rate of 150 dry tonnes/hectare, Vale’s central tailings facility could potentially require another 195,000 dry tonnes of biosolids. That’s more than 30 years of biosolids utilization, at an annual rate of 6,000 dry tonnes of material. Needless to say, Vale is very pleased with the results, and the relationship is ongoing. In fact, the Vale team is evaluating other sites in the Sudbury area for this type of remediation, ensuring a long-term, environmentally sustainable rehabilitation program.

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

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by Jonathan D. Cocker, Baker McKenzie

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

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

No Relaxation For Electronics Industry During Fee Holiday

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

Whose Money Is it Anyway?

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

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

Duty of Care for Orphaned Eco-Fees

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

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

Be Neither Recipient Nor Beneficiary of Orphaned Eco-fees?

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

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


About the Author

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

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

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by Paul Manning, Manning Environmental Law

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

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

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

Background

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

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

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

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

The Supreme  Court’s Decision

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

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

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

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

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

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

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

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

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

The Impact of Brexit on Global Waste Shipments

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by Shea Karssing, Smarter Business

As the people of Great Britain wait with bated breath for the March 29th deadline for a deal for the country to leave the European Union (Brexit), industry is starting to prepare for a ‘no deal’ Brexit inasmuch as possible.  While the British government has issued assurances that they are implementing measures make the process a smooth one, it is unsurprising that the nation is preparing for any eventuality.  

One area that stands to be notably affected by a ‘no deal’ Brexit is the translocation of waste. For those involved in such waste shipments, it is suggested you become au fait with the predicted changes in the case of a ‘no deal’ Brexit on 29 March.

THE CURRENT REGULATIONS

The guiding European Union (EU) legislation and guidelines on waste is predicated on the worries surrounding illegal waste movements and the burden on receiving states.  The EU legislation is particularly focused on the health and environmental concerns associated with such waste, as well as the requirement of waste as a raw material for recycling or recovery. The currently applicable international and EU legislation does not require a licence to be obtained for shipments of waste between the EU and the UK as union states.

The Basel Convention  

Under the Basel Convention, written consent is required in order to effect an international shipment of waste.  The reason for this is to ensure receiving nations are appraised of the nature of the waste and can offer assurances around its disposal. The Organisation for Economic Co-operation and Development (OECD) provides the framework for its implementation around transboundary waste movement.

EU Waste Shipment Regulations

Under these regulations, waste for disposal may not be shipped to extra-EU countries and European Free Trade Association (EFTA) members and export of hazardous waste to OECD members is prohibited.

Transfrontier Shipment of Waste Regulations

These United Kingdom regulations outline the authorities, offences, and penalties within the UK.

The OECD decision

Classifies waste as green or amber according to risk levels – those that pose least threat to human health and those requiring control in terms of risk.

WHAT CHANGES CAN WE EXPECT IN THE EVENT OF A NO-DEAL BREXIT?

A change in status

If no agreement is reached in March, EU law would no longer apply to the UK, which would become a “third country”  rather than a “member state” for purposes of waste export for disposal and recovery. However, the UK will remain a member of the Organisation of Economic Co-operation and Development (OECD) and bound by the Basel Convention.

Governed by regulation

Regulation (EC) 1013/2006 will govern the treatment of waste imports and, as a party to the Basel Convention and a member of the OECD, the international regulations contained in their rules would continue to apply.

Prohibitions

The 27 EU states would be prohibited from exporting waste for disposal and mixed municipal waste for recovery to the 27 UK.

Consent

Imports into a member of the EU-27 and from the EU to the UK will be allowed subject to re-approval of the requisite licences.

Ireland

While no changes are anticipated on green waste (for wastes presenting low risk for human health and the environment) recovery between Ireland and the UK, as well as amber waste (wastes presenting sufficient risk to justify their control) imports to the UK for recovery, imports into the UK for disposal and mixed municipal waste for recovery from Ireland may be affected.

While the government is giving due cognizance to the UK’s shared borders, movement of this waste between Northern Ireland and the Republic of Ireland hinges on the terms of the final agreement.  Brexit may also affect the eligibility of certain waste types to contribute to Ireland’s waste management targets depending on the treatment of that waste. In broad terms, this includes electronic and electric waste, batteries and accumulators; municipal waste for re-use and recycling, demolition and construction waste for re-use, recovery, and recycling; packaging and end-of-life vehicles for recovery and recycling.

For the most part, the substantive requirements of provisions will remain largely unchanged and alterations to existing regulations are expected to maintain the operability of existing processes around waste shipments.

CONSIDERATIONS FOR THOSE AFFECTED

Assess consent

If you have received consent for waste shipments, their status may change subsequent to withdrawal – with consent potentially being void, requiring re-submission, or facing additional customs requirements and obligations.

For exports into the EU

According to UK Department of the Environment, Food, and Rural Affairs (DEFRA), the UK “would be treated in the same way as any other OECD country, or country that is party to the Basel Convention, looking to export waste to an EU country.”  This would mean the submission of a duly reasoned request to the authorities detailing the reasons why and the inability of acquiring disposal facilities within its own borders.  In the case of exports of waste for disposal, this duly reasoned request would have to be submitted by the government to the EU before the UK exporter can submit notifications.

Get to know customs regulations

UK exporters would be well-advised to apply the customs guidelines around waste imports into the EU.

Waste for recycling

The Green Control procedure outlined in the WSR and OECD decision remains unchanged.

Get advice

Keep an eye out for announcements and government notices, in particular from DEFRA.  In the face of these uncertain times, it makes sense to get advice from the professionals and shape the way forward for your processes and systems to be prepared for any outcome.

About the author

Smarter Business is one of the UK’s leading independent consultancies, helping businesses secure the most comprehensive savings solutions from utilities contract management and procurement to business loans and facilities maintenance. https://smarterbusiness.co.uk/

Why a “bin ban”​ on textile donation bins is a huge mistake

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by Calvin Lakhan, Ph.D., Faculty of Environmental Studies at York University

Preface: For the purposes of full disclosure, York University and Diabetes Canada have partnered to form Canada’s first municipal textile diversion strategy. I am enormously proud of the work that has been done and what we have achieved over the past two years. The tireless efforts of Diabetes Canada, other charities, municipalities, and external stakeholders has been instrumental in diverting more than 15 million pounds of textiles from landfills and generating millions of dollars in life saving Diabetes Research. 

The university does not receive any financial re-numeration for our partnership with Diabetes Canada.

With that being said, the opinions expressed in this article are mine and mine alone – I feel compelled to comment on the issue given the recent incidents involving clothing bins in British Columbia and Ontario.

First and foremost, it is important to acknowledge the tragic loss of two lives. The questions surrounding bin safety and how to prevent this moving forward are valid and need to be answered.

However, banning bins is an extremely short cited measure – one that is driven by emotion and media furor instead of identifying practical solutions. If were are to believe some of the recent news stories, it would make you think that bin related injuries are an epidemic and pose a safety risk to the broader community.

The truth however is that bin related injuries/death are extremely rare. To provide context, fatalities attributable to falling signage are more than 5 times greater than bin related accidents. I don’t say this to discount the severity of what has occurred – truthfully, one bin injury/fatality is one too many. This necessitates that we should be exploring options that make bins safer, instead of calling for an outright ban.

Banning bins addresses a symptom (scavenging and temporary shelter), but does nothing to address the root cause (poverty). Greater emphasis should be placed on providing marginal communities with access to adequate resources and shelter. There may even be opportunities to curtail scavenging by engaging directly with poverty advocacy groups and providing textile donations to communities in need.  

Another concern is that banning bins has a significant economic, environmental and social impact. From an environmental perspective, a bin ban would result in thousands of tonnes of textiles going to landfill. Unlike other waste streams, textiles are not part of residential waste programs. Clothing bins play a critical role in diverting textiles, and their elimination would be a significant blow to an already limited textile collection infrastructure. Every tonne of textiles that ends up going to a landfill, will directly result in increased costs for municipalities through increased tipping fees.

The economic implications of a ban also adversely affects charitable organizations (Salvation Army, Diabetes Canada, Make a Wish foundation, STEPS etc.), by cutting off a valuable revenue source. These are organizations that serve millions of Canadians – even the smallest drop in revenue can compromise their ability to provide programming, services and conduct research.

It is important to remember that not all bins and not all service providers are created equal (both with respect to the actual bin and the organizations that service them). At present, charitable organizations operate in parallel with for profit operators (who often masquerade as charities). This not only makes it difficult for the public to identify where their donation is going, but potentially comprises public safety due to a lack of standardization and service.

Instances of scavenging and bin related injury tend to be higher with bins operated by for profit organizations (some, not all). Unlike charitable bins, there is no standard bin design, resulting in bins that vary widely with respect to both their safety and ease of access. 

See figures below for bin examples.

This tragedy represents an opportunity to improve upon our existing textile diversion strategy, identifying best practices in both bin design and program implementation. Standardization with respect to how bins are designed and how those bins should be placed and serviced will be critical in mitigating against future incidents. 

Instead of an instinctive knee jerk reaction on the part of the public to the recent high profile deaths, we should look at this as opportunity to map out what is needed to create effective, sustainable and safe textile diversion solutions. 

A bin ban will ultimately hurt more Canadians than it helps. Now is the time to define how we want our textile diversion programs to run. Safety and used textile collection do not have to be mutually incompatible pursuits. 

This article is republished with the permission of the author.

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About the Author

Calvin LAKHAN, Ph.D, is currently co-investigator of the “Waste Wiki” project at York University (with Dr. Mark Winfield), a research project devoted to advancing understanding of waste management research and policy in Canada. He holds a Ph.D from the University of Waterloo/Wilfrid Laurier University joint Geography program, and degrees in economics (BA) and environmental economics (MEs) from York University. His research interests and expertise center around evaluating the efficacy of municipal recycling initiatives and identifying determinants of consumer recycling behavior. 

Single Use Coffee Cup – The Recycling Challenge

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by Rebecca Zarmon, Sheridan College

Individual Parts are Recyclable

Polyethylene is one of the most prolific polymers in industry; it is used for plastic bags, food films, bottles, cutting boards, toys, insulation, and many other objects.  Disposable coffee cups are a prolific source of waste throughout Canada and North America.  These cups are typically constructed of paper with a Low-density polyethylene (LDPE) lining, and have lids made of high impact polystyrene (HIPS).

While paper, HIPS, and LDPE are individually considered recyclable, the three materials require different treatment to be recycled, and are not recyclable when they are mixed together, such as they are in a coffee cup.  Most disposal coffee cups end up in landfills and the LDPE ends up as microplastics that have become pervasive throughout most of our ecosystem.

Generation

Polyethylene is a polymer—a chain of repeating compounds—of ethene, ????????# = ????????#, from the catalytic cracking of crude oil.  Depending on the pressure used during the process, polyethylene can be categorised as low density or high density.  LDPE is made under high pressure and has many branching chains, resulting in a flexible plastic.  HIPS is made under low pressure and is very linear, with few branches and is more rigid.  Polyethylene is resistant to degradation from food and most water based mixtures, which makes it very popular for use in the food industry.

Disposable paper cups are generated by restaurant industry, fast food industry, coffee shops, supermarkets, and food trucks, to name a few.  It is also possible to buy a package of disposable coffee cups for personal use from retail stores.  Disposable coffee cups are seen everywhere, and it is not uncommon for a customer to purchase multiple disposable cups from the food industry in a single day.  It was estimated that 1.5 billion disposable coffee cups were used in Canada in 2010, with 1 million cups per day being sent to a landfill from the City of Toronto alone.

Material Handling and Recycling

Polyethylene can be sent to a recycling facility.  To recycle LDPE and retain high quality plastic, the used LDPE must be separated from other materials, including other plastics and HDPE.  The separated plastic must be cleaned and dried and formed back into pellets.

Separation of the LDPE is typically done manually, by humans.  In some businesses, such as the cosmetics company LUSH, washing is also done manually.  While these processes add to the cost of recycling plastics like LDPE, it is still often worth recycling, and many facilities dedicated to recycling plastics exist throughout the country.  An example of a company that recycles plastic is Nexcycle Canada Ltd., located in Brampton, Ontario.  Besides recycling glass, Nexcycle recycles LDPE, HDPE, and polypropylene (PP).  

Recycled HDPE from Nexcycle

Disposable cups are often marketed as recyclable or compostable, due to the materials individually being recyclable or compostable.  Paper is well known for being recyclable and compostable, but as with polyethylene, the paper must be separated from other materials cleaned to be recycled into new paper products.  This presents a problem for disposable paper cups, as they are lined with LDPE, which must be removed before either component can be recycled.  The process to separate the LDPE lining and the paper is very difficult and as a result, most coffee cups end up in landfill or being incinerated.

Environmental Impacts

Polymers, including polyethylene, require about 100 MJ of energy expenditure to produce 1 kg of product and release about 10,000,000 tonnes of carbon dioxide equivalents (CO2e) to the atmosphere annually.  Paper and cardboard require about 30 MJ of energy to produce 1 kg of product and release about 10,500,000 tonnes of CO2e to the atmosphere annually.

The production of a disposal coffee cup has an impact on greenhouse gas emissions.  Professor Michael F. Ashby at the University of Cambridge determined the production of an average disposable cup weighing about  18 grams can generate 28 grams of CO2 equivalents, effectively 1.5 times its mass.

There are potential human health impacts from the use of disposal coffee cups.  When cups are used under excessive heat, such as the near boiling temperatures of coffee and tea, the LDPE lining breaks down and enters the liquid, which is then ingested.

If coffee cups enter the organics recycling stream, problems result.  The paper in the cup degrades quickly.  However, the polyethylene coating on the cup does not degrade and coffee cups that enter the organic waste or recycle streams end up contaminating the process.  

When polyethylene ends up in a lake or ocean, the plastic begins to degrade into smaller pieces, but does not decompose.  Once the piece of plastic become less than 5 mm in size, they are categorised as microplastics. These microplastics are easily ingested by aquatic life, which are ingested by other animals eating the aquatic animals.  Because the microplastics do not decompose, they have managed to spread across the food chain, including humans.

Potential Solutions

The “Four R’s” of waste management is a hierarchal strategy to manage waste at all points of its life cycle.  The first of the four is to reduce the amount of waste at the point of generation.

Replacements for polyethylene and other plastics have been studied, such as using guar gum and citric acid as a food grade lining, but the replacement does not produce as effective of a lining and the currently low cost and high durability of polyethylene prevents from any alternatives from becoming more popular.  Some coffee shops have switched to cups labeled as biodegradable, but these cups still go to landfill as their lining is not biodegradable.

The second “R” is to reuse products.  Disposable paper cups are intended for single use, but many coffee shops offer monetary incentives for bringing a reusable mug instead of purchasing a disposable cup.  In 2008, less than 2% of Starbucks customers used reusable cups.  Starbucks initiated a campaign to improve the reusable cup rate to 25% by 2015.  Reusable cups were offered for sale in store at low prices and discounts were given to those who used reusable cups, but the percentage of customers using reusable cups stayed below 2% by 2015.

It is possible that Starbucks’ strategy did not work because it is not the pricing that influences people to use or not use disposable cups, but the lack of knowledge of the impacts disposable cups have.  Many people are unaware that most disposable cups are not recyclable nor compostable.  

The City of Toronto displays on their waste management page that disposable coffee cups go into the landfill stream, but still some jurisdictions claim to accept coffee cups into green or blue bins. Coffee shops also frequently have bins displaying coffee cups under the recycling sign.

In the UK, a study was done where signs explaining the impact of coffee cups were displayed in coffee shops in varying locations.  In most locations, the percentage of customers using reusable cups went up, the highest increase going from 7.5% of customers using a reusable mug to 24.0% of customers using a reusable mug.

The third “R” is recycling.  As previously discussed, recycling is not an ideal situation, as current technology to separate LDPE from paper is too expensive.  A number of organizations in Ontario are working to reduce the amount of disposable cups that end up in landfill as well.

A project in the UK called CupCycling from James Cropper turns the paper from the cups into usable paper by soaking and softening the paper, skimming off the plastic film, filtering out the inpurities and reusing the material for other marketable products for other products and uses and sends the plastic to a plastic recycler.

The “R” at the bottom—hence the least effective at managing waste—is recovery.  Recovery refers to the incineration of the waste, with the product of the incineration being used to fuel another process, thereby reducing energy generation. Most polyethylene lined paper cups that aren’t in a landfill end up being incinerated.

Conclusion

Polyethylene is a highly durable plastic that is capable of maintaining stability even when in contact with water and food, which makes it a highly valuable material in the food industry. These same characteristics lead polyethylene to being very difficult to eliminate from the environment and it often ends up as microplastics in the ocean and in the digestive systems of animals throughout the food chain. Although polyethylene is recyclable, it is often used as a lining in disposable cups, rendering otherwise recyclable materials as landfill waste.  Alternatives to polyethylene are possible, but as of yet not stable or cheap enough for companies to make the switch.

Currently, the best option to reduce the amount of polyethylene in landfills and oceans is to educate customers on the impacts of disposable coffee cups and promote the use of reusable mugs.

Ontario: Electronics & Batteries Producer Responsibility Consultation Ends February 6th, 2019

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As part of the legal directive to transfer current government-overseen waste diversion obligations to a privately-run Individual Producer Responsibility regime (IPR), the Ontario Ministry of the Environment is currently holding consultations with stakeholders in the electronics/electrical equipment (EEE) and batteries industries regarding the coming circular economy regulation for EEE and batteries (and their packaging) and key decisions affecting industry are in the process of being made.

What’s the Mandate?

In understanding the anticipated reach of the EEE/Batteries Regulation, the Ministry is overtly promoting three goals:

  • Improved Environmental Outcomes, including reduction of toxics in landfill and related greenhouse gases;
  • Economic Growth, such as building more “infrastructure for reuse, refurbishment and recycling industries”; and
  • Consistency, Ease, Cost Efficiency and Reduced Burden, with an emphasis on shifting the costs of waste management to individual producers and consumers with the hope that more “competition, innovation and better product design” will result.

To help relieve municipalities of waste handling obligations, and to get itself out of the business of end-of-life product diversion (which it seems intent on doing), the Ministry is giving the EEE/Batteries Regulations a potentially broad and expansionist scope. As of July 1st, 2020, EEE and batteries “producers” will be compelled to resource recover the products (or equivalencies) they put into the Ontario market.

What Could Be Caught under the EEE/Batteries Regulation?

It seems likely that the product categories of one or both of these current diversion programs will be broaden under IPR to include the:

  • likely expansion from the existing 44 types of EEE to capture some or all of:
    • headphones;
    • routers;
    • large and small appliances; and
    • power tools and some categories of lighting.
  • near certain addition of rechargeable batteries;
  • maybe very limited types of EEE and/or batteries embedded in other products; and
  • remote prospect of obligating primary, convenience and/or transportation package used with EEE and/or batteries – given paper/packaging IPR has not yet been implemented in the province.

The addition of products not currently obligated under waste diversion will create immediate needs and opportunities for industries to find new resource recovery solutions to meet these needs.

Who’s Obligated under IPR?

Along with the group of currently obligated producers – namely resident brand owners and resident importers (and, for EEE, assemblers), the Ministry is considering adding one or more other parties which have a “commercial connection” to the products, such as non-resident:

  • importers;
  • wholesalers;
  • licencees;
  • retailers (including on-line out-of-province); and
  • distributors

Many of these companies would not necessarily replace any existing resident parties, but would, instead, be default-obligated for products with no resident “producers”.  The sanctions contemplated for non-compliance under the EEE/Batteries Regulation may well include a prohibition against the sale of products failing to meet their resource recovery targets.

Will it be Like the Tire Regulation?

More than a year ago, stakeholders in the EEE and batteries space were already paying close attention to the Ministry’s implementation of the Tire Regulation, North America’s first comprehensive circular economy law.  Given the breadth of obligations, including the producer’s private obligation to run a reverse supply chain, it’s anticipated that affected companies may respond similarly – coalescing around a limited number of producer responsibility organizations based upon commercial, industry, and market commonalities, to run end-of-life product networks that meet the unique needs of the separate producer groups.

Industry also learned through the Tire Regulation process that critical commercial outcomes can be based upon the content of the regulatory requirements and that full advantage should be taken of the windows of opportunity offered to engage the Ministry on key facets of the coming law.  One such window for EEE and batteries stakeholders is closing on February 6th, 2019.


This has been republished with the permission of Baker MacKenzie. It was first published on the Baker Mackenzie website.

About the Author

Jonathan D. Cocker heads the Baker McKenzie’s Environmental Practice Group in Canada and is an active member of its Global Consumer Goods & Retail and Energy, Mining & Infrastructure groups. He participated in founding one of North America’s first circular economy producer responsibility organizations. Jonathan is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations, and most recently the author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

One Person’s trash is the New Government’s Treasure: Ontario stays the course on waste management in the “Made-in-Ontario Environment Plan”

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by Erin D. FarrellJessica E.M. Boily and 
Liane Langstaff, Associate Lawyers, Gowlings WLG

On November 29, 2018, Ontario’s new Progressive Conservative government released “Preserving and Protecting our Environment for Future Generations: A Made-in-Ontario Environment Plan” (the Plan).

The Plan comes on the heels of Ontario’s announcement to scrap the cap and trade program in Ontario, previously discussed in our October 9, 2018 article, “Ontario’s Cap and Trade Program Ends and Federal Backstop Looms: Implications for Ontario Businesses”. In addition to addressing climate change, without the cap and trade regime, as set out in our companion article, the Plan sets out the government’s other priorities with respect to the environment. Among other priorities, the Plan touches on four aspects of waste management:

  1. Food and organic waste and landfills
  2. Excess soil
  3. Producer responsibility
  4. Clean-tech

In summary, the policies and priorities in the Plan don’t differ drastically from the previous government’s waste management policies. It is clear that the government recognizes the work done to date to consult with stakeholders on waste management challenges and hopes to build on that work. It is also clear that, on waste, the government is hoping to find pragmatic, balanced solutions that aim to improve both the environment and economy.

1.ORGANIC WASTE AND LANDFILLS

The Plan notes that individual Ontarians divert almost 50% of their own household waste to either the blue or green bin, but that when Industrial, Commercial and Institutional (IC&I) waste is considered, Ontario’s waste diversion rate has been stalled at below 30% for the past 15 years. By way of comparison, San Francisco has a waste diversion rate of 80% and New York diverts about 21%. Contributing to the gap in Ontario is the fact that over 60% of Ontario’s food and organic waste is still sent to landfills. There it breaks down to create methane, a greenhouse gas that contributes to climate change.

In May 2018, after consultation with stakeholders, the previous government released Ontario’s Food and Organic Waste Framework, (the Framework) which included an Action Plan and Policy Statement setting out the priorities for addressing food and organic waste in Ontario. The Framework focused on 4 priorities:

  1. Reducing food and organic waste
  2. Recovering resources from food and organic waste (particularly in multi-unit residential and the IC&I sector)
  3. Supporting resource recovery infrastructure
  4. Promoting recovered resources with a focus both on beneficial uses and promoting sustainable markets for end-use products

While the previous government’s Framework identified short, medium and long-term priorities for a number of overarching goals, it also contemplated future consultation on a number of specific legal changes including amending the 3Rs Regulations (O. Reg.103/94, 104/94, and 102/94) under the Environmental Protection Act to include food and organic waste, banning food and organic waste from landfills, modernizing approval processes and requirements to support resource recovery infrastructure, and reviewing regulatory approaches to compost quality standards and agricultural soil health.

The Plan similarly hopes to close the gap and ban all food and organic waste from landfills. This is proposed to be done by expanding green bin collection systems and educating the public about organic waste diversion. As part of its focus on reducing food waste, the Plan notes that safe food donation will continue to be supported through the Ontario Community Food Program Donation Tax Creditand the Ontario Donation of Food Actwhich provide tax credits to encourage partnerships between farms and food banks.

Though the Plan aims to eliminate organic waste being set to landfills, the government recognizes that despite best efforts at diversion, there will be a need for new landfills in the future. In addition the Plan references “enhanced” consultation with municipalities and communities regarding landfill siting in addition to the already rigorous environmental assessment and approval process currently in place.

2. EXCESS SOIL

It has been estimated that Ontario’s construction activities generate close to 26 million cubic metres of excess construction soil every year, and that $2 billion is spent annually to manage excess soil. Historically, there has been a lack of clear legal requirements around the management of excess soil generated from construction and environmental remediation activities. Decisions about how and when to classify excess soil as “clean” enough to exclude it from the definition of waste had to be made on a case-by-case basis without reference to a clear legal framework. Stakeholders in the industry have been looking for clarity and guidance on this issue.

In April 2018, the previous government released an Excess Soil Management Regulation for consultation. The Regulation built on stakeholder comments provided to a previous regulatory proposal and the Excess Soil Management Policy Framework released in December 2016.

The Plan briefly touches on excess soil management but does not state whether the Excess Soil Management Regulation will be passed. Rather, the Plan reflects the general commitment to include making “clear rules and standards around how extra soil from construction projects is managed, relocated and reused”. In addition, the Plan speaks to consideration of local options (which reduce greenhouse gas emissions from trucking) and the re-use of soil rather than landfilling. It remains to be seen whether the proposed Regulation will be passed in its entirety.

Last, the Plan comments on enforcement, noting the government will “take strong enforcement action” to ensure waste, including hazardous waste in soil, is properly stored, transported, recycled, recovered or disposed of.

3. PRODUCER RESPONSIBILITY

In 2016, the Resource Recovery and Circular Economy Act, 2016 began Ontario’s progression towards “full producer responsibility”, i.e. making producers financially responsible for recovering resources and reducing waste associated with their products and packaging. Prior “extended producer responsibility” programs only required designated producers to pay a portion of these costs, and were criticized for decoupling waste creation and waste processing as the producers do not control or participate in the recycling process for their products. Used tires were the first material to be transitioned to the full producer responsibility system. Additional materials, including blue box waste, municipal hazardous or special waste, and waste electrical and electronic equipment, were to follow.

The Plan states that the government will “move Ontario’s existing waste diversion programs to the producer responsibility model”. It is unclear whether the new government will make substantive changes to the existing producer responsibility programs in Ontario, which had already begun to phase-in manufacturer responsibility product and packaging waste. However, the focus on certain products such as compostable packaging in the Plan indicates what sectors may become a priority to this government.

4. FUNDING FOR CLEAN TECH AND WASTE MANAGEMENT INNOVATIONS

The Plan calls on the private sector to use its capital, capability and know-how to transform clean-tech markets, including the technologies involved in waste management. A variety of funding streams were previously available to support clean tech. For example, the 2016 budget contained a $55 million commitment to support the clean tech industry. Furthermore, in recognition that 6% of Ontario’s total GHG emissions came from the waste sector, some of the proceeds of Ontario’s previous cap and trade program were to be used for waste management innovations and the cap and trade program intended to accept offset credits for landfill gas capture projects that resulted in GHG emissions reductions. The previous Climate Change Action Plan also established a pilot programto use methane obtained from agricultural materials and food wastes for transportation purposes.

It is not clear from the Plan whether these types of funding sources will be continued. What the Plan does do is to specifically reference investment in waste management technologies such as chemical recycling and thermal treatment to ensure that valuable waste-based resources do not end up in landfills. Ontario is also seeking in increase new projects or technologies to deal with difficult to recycle materials.

Furthermore, the Government will still support clean tech through a new funding pool called the Ontario Carbon Trust. In total the program will devote $400 million over four years. $350 million would be used to create an emission reduction fund to support GHG reduction emissions. The remaining $50 million would be used to fund a “Reverse Auction”, allowing bidders to send the Government proposals for emissions reduction projects and compete for contracts based on the bidder who can reduce emissions for the lowest cost. Thus, waste management innovations that have a corresponding benefit of reducing GHG emissions may receive some of this funding.

Green Bonds, government bonds meant to fund projects with environmental or climate benefits, may also be on the horizon. The Government states that it will work with the Ontario Financing Authority to issue Green Bonds to allow Ontario to raise funds for “green” projects by the end of the fiscal year.

Ontario also notes that a planned emissions performance standard for large emitters may include compliance flexibility mechanisms, such as offset credits. Given the prior government’s acceptance of landfill gas capture projects for offsets, it is conceivable that similar projects could qualify for offsets under the new emissions performance standard and spur innovation in this field. For more details on Ontario’s emissions performance standard, see our companion article on the climate change implications of the Plan.

CONCLUSIONS

Most of the waste management goals set out in the Plan build upon previous plans or programs. The Plan aims to:

  • Improve and update environmental approvals to support sustainable end markets for waste and new waste processing infrastructure
  • Incentivize new technologies, such as thermal treatment, to recover valuable resources in waste
  • Reduce the amount of waste going to landfill
  • Expand green bin and organic waste collection systems in cities and the IC&I sector to prevent any food waste from entering landfills
  • Promote redevelopment of brownfields.

The implementation of the Plan will require detailed regulatory proposals, programs and policies. Once those details are made available, it will be possible to determine whether the Plan achieves its goals of fostering innovation while still protecting the environment.

The Ministry will accept comments and feedback on the Plan until January 28, 2019.


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

This article has been re-published with the permission of  Gowlings WLG.  It was first published on the Gowlings WLG we


About the Authors

Erin Farrell is an associate lawyer in Gowling WLG’s Toronto office, practising in the firm’s advocacy department. Her practice focuses on a variety of commercial litigation matters, including class actions, product and professional liability, environmental law and municipal liability.  
Erin represents professionals in both civil and administrative matters, and has defended a number of Canadian and foreign clients in the pharmaceutical, medical device and manufacturing sectors in litigation. She also has extensive experience in the banking sector, advising clients on a range of litigation matters, including a variety of motions and injunctions.

Jessica Boily is an associate in Gowling WLG’s Toronto office, practising in Environmental Law.   Jessica works with clients to navigate and resolve complex disputes, including advocating for clients in appeals of environmental orders and civil litigation involving contaminated sites. She guides clients through regulatory inspections and investigations, including defending clients charged with federal, provincial and municipal environmental and regulatory offences.

Liane Langstaff is an associate lawyer in Gowling WLG’s Toronto office, practising in the areas of environmental law, indigenous law and land use planning law. Liane has a diverse practice, serving corporate, municipal and indigenous clients. She is a passionate advocate and provides comprehensive legal advice on a range of environmental issue