Six Things To Consider Before The Coronavirus Impacts Environmental Compliance

, , ,

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. 

COVID 19 Disrupts Cross-Border Waste and Recyclables Flow

, , ,

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

COVID 19 Disrupts Cross-Border Waste and Recyclables Flow

In light of all the actions being taken by all levels of government to address the spread of the coronavirus, it is worth considering its impact on the waste management sector in Canada.  For most, how waste is collected and where it is taken, is not a daily consideration.  And yet, it is one of the most important public health and safety considerations.

Canadian Waste Industry Vulnerable to US Shutdown

In Ontario for instance, roughly one-third of the Province’s waste disposal needs are met by landfills in the United States.  That equates to 3.2 million tonnes of waste a year or roughly 9,000 tonnes per day. While other Canadian provinces do not have the same reliance on out-of-country disposal, many are reliant on a degree of waste materials being shipped across the border.

The free movement of these materials across the US border is an important element of the current Canadian waste management system.  In the last two decades, we have dealt with a few potential disruptions to this flow of materials.

  • The terrorist attacks of September 11th, 2001 provided a first indication of the potential vulnerability when US border access was constrained.  The immediate closure and proceeding long lines at the border lasted for several days afterward. The Ontario Ministry of Environment, for instance, had to facilitate emergency measures to ensure waste could be managed in the interim period.
  • After a number of waste truck rollovers in Michigan in the early 2000s, local Senators threatened legislative action to restrict waste crossing the border. This led to an agreement between the state of Michigan and Ontario municipalities in 2006, to end the export of municipal waste (specifically from the GTA) to Michigan by 2010. The province helped facilitate the agreement, and as a result, the state of Michigan dropped all legislative initiatives to stop waste imports. The agreement did not include non-residential waste. By 2010, Ontario municipalities had stopped sending residential waste to Michigan. For a time, overall waste shipments to the U.S. declined, but since 2010, non-residential waste export to the U.S. has steadily increased.
  • Concerns were also raised again as part of the negotiation of the North American Free Trade Agreement in 2018 that there could be potential for restrictions on the movement of goods.

Any impact on the movement of waste as a result of a closure to the border, would necessitate the management of this roughly 9,000 tonnes of additional waste domestically.

Desperate Times Call for Desperate Measures?

As in 2001, the inability to transfer waste to the United States would likely necessitate potential changes to environmental permits (such as Environmental Compliance Approvals in Ontario) or governmental emergency declarations / measures to allow for waste receiving sites to increase their annual daily maximum limits. Provincial regulators have been prepared in the past in granting the necessary permissions, and are likely doing similar work  now to ensure the waste industry is not at risk of willful non-compliance.

It may also be the case that some of these waste volumes don’t easily find an alternate receiving site, putting the collectors and/or haulers in the difficult position of potentially operating an unlicensed waste storage facility.  Provincial governments will need to think through these situations including requiring certain sites to accept materials.  In short, there are no simple solutions, but proper planning across the country can at least reduce risks.

Hazardous Recyclables and Hazardous Waste Movement Compliance

In the case of hazardous materials for which no clear alternate home is available in Canada, the situation is even more precarious.   Internationally, no less than 99% of all (lawful) hazardous recyclables (and hazardous waste) exported from, or imported to, Canada are with the United States.  International wastes are still regulated in Canada under the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, which has yet to be replaced by the long-proposed and more business-friendly Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations.  

The Export and Import law currently requires certifications from the holder that any recyclable or waste which is not successfully transferred across the border will be lawfully disposed of in Canada consistent with the approved recycling or waste activity under which the materials were to be transited to the United States.  

A closed border will, in at least some circumstances, put that certification to the test as not all materials exported to the United States have an alternate recycling or disposal facility in Canada.  This is increasingly so with the growth of more specialized and regionally-servicing facilities in US states which capture both Canadian and American materials.  

Some Canadian Recyclers Dependent Upon US Material 

The reverse also creates challenges for the waste industry as some Canadian recyclers are economically dependent on US material.   The disruption of the needed supply of US-originating materials into specialized recycling and disposal facilities in Canada can quickly create a situation where insufficient material volumes makes the facilities no longer viable, leaving the Canadian materials also without a home.

In other words, the growth of integration, particularly in respect of hazardous recyclables and discrete hazardous wastes makes a border shutdown acutely challenging for the Canadian recycling and waste industry.

Contingency Planning to be Developed?

It is likely an overreaction to anticipate that US-Canada integration in resource recovery and waste disposal will come to an end with the current closure of the border.   The economies of scale and lower cost disposal capacity in the United States will presumably reinvigorate this international trade once the worst of COVID-19 has passed.

There may, however, be a growth in contingency planning in respect of Canadian waste and recycling capacity, recognizing a myriad of events may give rise to future US border closures and the Canadian waste industry needs to be prepared.


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. 

Peter Hargreave, 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. 

Canada asks for extension on legislation to ban plastic waste exports

,

The Government of Canada recently made a formal notification to the United Nations (UN) that its laws will not be in compliance with the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal (“Basel Convention”).

The definition of “hazardous waste” in the Basel Convention was extended to include contaminated plastic waste. Canada has yet to pass legislation banning the export of this waste stream.

“Before Canada can formally accept the amendments, it needs to complete an internal acceptance procedure. This procedure, led by Global Affairs Canada, is underway,” Gabrielle Lamontagne of Environment Canada told CBC News, adding that Canada hopes to finish that work before the end of the year.

UN documents say the new rules “come into force” on March 24 of this year. Canada is requesting a special delay from the UN in order to give it more time to enact the required legislation. The notice sent to the UN says that Canada “fully supports and intends to comply with the amendments,” but “the said process may not be finalized prior to the entry into force of the above-noted amendments.”

During the Basel Conference of the Parties from 29 April to 10 May 2019, Governments amended the Basel Convention to include plastic waste in a legally-binding framework which will make global trade in plastic waste more transparent and better regulated, whilst also ensuring that its management is safer for human health and the environment. At the same time, a new Partnership on Plastic Waste was established to mobilize business, government, academic and civil society resources, interests and expertise to assist in implementing the new measures, to provide a set of practical supports – including tools, best practices, technical and financial assistance.

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

, , ,

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.

Waste incineration: Why isn’t it mainstream in North America?

,

Written by Sarah Welstead, Eco Waste Solutions

Somehow, Sweden makes it cool

The other day, an old friend of mine – who doesn’t really know much about what I do here at Eco Waste, or really even what Eco Waste does – posted a link to a piece in The Independent about how Sweden has gotten so good at turning its trash into energy that it now imports other countries’ trash just to keep its own facilities going.

My friend’s comment on the link was: “This is awesome! Why aren’t we doing that here?”

Those of us in the waste-to-energy field are, of course, well aware that Sweden has long been the benchmark for successful waste incineration.

While containerized waste incineration and thermal combustion technologies have been growing and improving over the past few years, they aren’t really a new idea: The first waste-to-energy (WTE) facility in the United States opened in New York City in 1898, and technology developers have been trying commercialize gasification and pyrolysis facilities for municipal solid waste (MSW) since the 1970s.

So why would someone like my friend – who’s smart, well-educated, up-to-date on current events and with a background in the sciences – have such a gap in her knowledge of waste-to-energy, and completely unaware that environmentally-progressive countries lie Sweden have successfully left landfills behind when it comes to disposing of untreated waste?

Because the industry simply hasn’t done a good job of educating the public. And it’s time we got smarter about this.

It’s time we addressed the 3 core reasons for resistance to waste-to-energy.

Reason 1: Everyone freaks out when they hear the word ‘incineration’

Outside of the waste management industry – and sometimes within it, unfortunately – the word ‘incineration’ conjures apocalyptic images of town dumps burning out of control, or tire fires, or some guy burning his garbage in his backyard. And many people have heard of the health hazards associated with military ‘burn pits’ that have so often been the way military units deployed in remote locations have dealt with waste they can’t transport out. All of these things are, of course, bad.

But ‘incineration’ in a waste-to-energy or cleantech context is in fact a totally different thing. It’s still ‘combustion’, but it’s combustion that happens in highly-controlled environments, using super-high temperatures. Smoke and anything toxic is then filtered through hard-core scrubbers that ensure nothing dangerous gets into the air, and anything left over – inert bottom ash and more concentrated fly ash – are easy to dispose of, safely.

This isn’t vaporware; it’s not untried technology; it’s not even a shell game that doesn’t withstand scrutiny. High-temperature, advanced incineration which reduces waste by up to 90% with safe emissions has been around for years.

Reason 2: Waste-to-energy requires a long-term vision – and most politicians prefer immediacy

The primary competition for incineration-based waste-to-energy facilities in municipalities and communities when they’re considering a new waste management solution are landfills. Landfills are relatively easy to set up (though they do require proper construction), they’re familiar, and when compared with waste-to-energy facilities, they tend to cost less in the near term.

Incineration-based waste-to-energy facilities generally require a more significant up-front investment. WTE requires less land than a landfill, but does require money to build the incineration, containment and pollution-control facilities and associated technology.

For the first 10-15 years of operation, the landfill can look like the better investment: If it’s been set up correctly, and the community size stays within predicted growth levels, your landfill won’t cost a whole lot to run, manage or maintain – the ROI looks pretty good.

But at 15-20 years, landfills can start to look like a bad investment. What started as a plot of land in the middle of nowhere has now been surrounded by the city and is pulling property values down; it’s starting to near capacity so you need to find a whole new site for the garbage; and all that stuff accumulating in the ground has caused groundwater pollution problems that no one anticipated – and suddenly that ‘cheap’ solution is far more expensive than planned.

The cleantech waste-to-energy incineration facility, on the other hand, is still operating just fine. It doesn’t require more land, isn’t causing more pollution, and in fact is improving efficiency as it upgrades its technology.

Unfortunately, the people most able to effect a shift from landfills to WTE are politicians, who often control budgets and strategic initiatives for the communities in which they live. And when they need to be re-elected, they opt for choices which look better in the short-term, which means they aren’t often good at making the case for the long-term benefits of incineration-based waste-to-energy.

Reason 3: No one knows enough about garbage

While 66% of Canadians believe that protecting the environment is important, even at the risk of stifling economic growth, they, like the citizens in many other developed countries, are still generating 2.7kg of waste per capita every single day.

And far too many people still think that recycling is going to solve the problem, even though recycling only addresses a small fraction of the waste generated.

Why? Because those of us who know better – those of us in the thermal conversion industry, particularly – aren’t making the case very well. We see the media running stories that focus on community protests against a proposed waste-to-energy facility and don’t speak up to explain that ‘incineration’ doesn’t mean uncontrolled burning. We don’t invest in lobbying politicians to help them make the case for thermal conversion to their constituents. We don’t invest in marketing and PR efforts to help the public understand that modern incineration is much more environmentally sustainable than they realize. And we often resist partnering with other thermal conversion companies to drive the industry forward because we worry about getting or maintaining a competitive advantage.

So what do we do?

It’s time for those of us in the thermal conversion and waste-to-energy industries to get more vocal about what we do – and why it’s so smart. It’s time to stop assuming that no one wants to talk about garbage and start talking about how waste-to-energy is not just interesting but effective, and how it’s giving us a real opportunity to improve our communities and the planet. It’s time to stop being embarrassed by talking about our careers in ‘garbage’ and start evangelizing about cleantech.

Because when people know more, they start thinking like my Facebook friend: “This is awesome! Why aren’t we doing that here?”


About the Author

Sarah Welstead is the Marketing Director at Eco Waste Solutions, a Canadian-based company that is a leading supplier of modular thermal treatment and waste-to-energy technology. Eco Waste Solutions has more than 80 WTE installations in 18 countries.

TerraCycle partners with Niagara company to recycle health and beauty products

, ,

TerraCycle, a recycling company that focuses on typically non-recyclable waste, has partnered with a Wellness and Lifestyle boutique in St. Catharines, Ontario to collect and recycle health and beauty-related products.

Garden City Essentials, a beauty and holistic lifestyle boutique, is collecting packaging from health and beauty-related products to be recycled through TerraCycle.

The founder the Garden City Essentials, Jolene Antle, in an interview with Niagara This Week, said, “I feel like there’s an evolution that has to happen where people become more mindful of what they’re using, what they’re purchasing and I just really want to support that in my business. If I’m going to sell products, I also want to be a place where people can take things that aren’t recyclable.”

The boutique has four Zero Waste Boxes in the front window of the shop — one a free, Gillette-sponsored box collecting razor blades (of any brand), the other three she is paying for out of pocket to collect the remnants of products related to oral hygiene, beauty, personal care and cosmetics.

Terracycle collects the boxes and recycles them into new products.  The company has several lines of recycled merchandise is sells including flooring and carpeting, building materials, coatings and adhesives, cleaning and purification supplies, and home & garden goods.

Li-Cycle Ships First Commercial Load of Recycled Battery Material to Customer

, ,

Li-Cycle Corp., a Ontario-based based lithium-ion battery recovery company, recently announced the maiden shipment of commercial product, containing energy metals concentrate, has been made to a customer.

Li-Cycle’s First Commercial Shipment

The shipped product comprised of cobalt, nickel and lithium recovered from lithium-ion batteries and was produced at Li-Cycle’s processing facility in Ontario, Canada.

“The first shipment of commercial product marks a significant milestone for Li-Cycle, on the Company‘s path to becoming a premier resource recovery company and processor, handling all types of lithium-ion batteries from a broad set of customers and applications,” commented Ajay Kochhar, President and CEO of Li-Cycle. “As we grow our business, we look forward to continuing to provide sustainable and technologically innovative solutions to solve our global customers’ end-of-life lithium-ion battery challenges.”

Li-Cycle Technology uses a combination of mechanical size reduction and hydro-metallurgical resource recovery specifically designed for lithium-ion battery recycling. The technology can do so with a recovery rate of 80 to 100% of all materials.

Li-Cycle’s core business model is to build, own, and operate lithium-ion battery recycling plants tailored to regional needs.

Canada: Construction Waste Rules Set to Change

, , , , , ,

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.

___

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.

Could Renewable Natural Gas Be the Next Big Thing in Green Energy?

, ,

Written by Jonathan Mingle, Freelance Journalist and republished with permission of Yale Environment 360

In the next few weeks, construction crews will begin building an anaerobic digester on the Goodrich Family Farm in western Vermont that will transform cow manure and locally sourced food waste into renewable natural gas (RNG), to be sent via pipeline to nearby Middlebury College and other customers willing to pay a premium for low-carbon energy.

For the developer, Vanguard Renewables, the project represents both a departure and a strategic bet. The firm already owns and operates five farm-based biogas systems in Massachusetts; each generates electricity on site that is sent to the grid and sold under the state’s net-metering law. The Vermont project, however, is Vanguard’s first foray into producing RNG — biogas that is refined, injected into natural gas pipelines as nearly pure methane, and then burned to make electricity, heat homes, or fuel vehicles.

“Producing RNG for pipeline injection and vehicle fueling is the evolution of where everything is going” in the biogas sector, says John Hanselman, Vanguard’s CEO.

Biogas has been around for a long time in the United States, mainly in the form of rudimentary systems that either capture methane from landfills and sewage treatment plants and use it to produce small amounts of electricity, or aging digesters at dairy operations that might power a local farm and send some surplus power to the grid. But those are fast becoming outdated and out-produced by a new wave of large-scale renewable natural gas projects that are springing up around the country. These ventures are tapping into heretofore unexploited sources of energy: some are capturing the vast amounts of methane generated by manure from some of the 2,300 hog farms that dot eastern North Carolina; some are building biodigesters to turn clusters of large California dairy farms into energy hubs; and some are seeking to divert food waste from landfills and transform it into vehicle and heating fuels.

Biogas systems could produce enough renewable energy to power 3 million homes in the U.S.

Renewable natural gas is reaching a tipping point for several reasons: An increasing number of third-party operators like Vanguard are relieving farmers and landfills of the burden of running their own energy systems and are introducing more sophisticated technologies to capture methane and pump it directly into pipelines. Some states, including California, are passing laws requiring the development of renewable natural gas. And utilities across the country are starting to support these new initiatives, as evidenced by the new partnership between Dominion Energy and Smithfield Farms — the world’s largest pork producer — to develop new hog waste biogas projects. For proponents, the ultimate goal is to replace a significant portion of the fossil-derived natural gas streaming through U.S. pipelines with pure methane generated by human garbage and animal and agricultural waste.

“If you can recover energy before sending what remains back to the soil, that’s a great thing,” said Nora Goldstein, the longtime editor of BioCycle Magazine, which has covered the organics recycling and anaerobic digestion industries for decades. “You look at all those benefits and say, ‘Why aren’t more people doing this?’ The key is you need to do it correctly.”

The untapped potential — especially of the billions of gallons of animal manure and millions of tons of food waste generated each year in the U.S. — is immense. According to a 2014 “Biogas Opportunities Roadmap” report produced by the U.S. Environmental Protection Agency, the Department of Agriculture, and the Department of Energy, the U.S. could support at least 13,000 biogas facilities, fed by manure, landfill gas, and biosolids from sewage treatment plants. Those new systems could produce 654 billion cubic feet of biogas per year — enough renewable energy to power 3 million homes. And a study by the World Resources Institute estimated that the 50 million tons of organic waste sent to landfills or incinerated every year in the U.S has the energy content of 6 billion gallons of diesel fuel, 15 percent of all diesel consumed by heavy-duty trucks and buses.

A truck delivers food waste to an anaerobic digester at a Massachusetts farm. VANGUARD RENEWABLES

Experts say that the growing utilization of biogas could help lower greenhouse gas emissions from some of the toughest sectors to decarbonize — transportation, industry, and heating buildings — even as it reduces heat-trapping methane emissions, keeps organic waste out of landfills, and prevents manure runoff into rivers and water supplies. Through anaerobic digestion, biogas can be made from any organic material — food scraps, agricultural residues, even the sludge left over from brewing beer. These materials are fed as a slurry into tanks where microbes feast on them in the absence of oxygen, destroying pathogens, producing methane and other gases, and leaving a nutrient-rich fertilizer as a byproduct.

In the field of renewable natural gas, the U.S. is playing catch up with Europe, which has more than 17,400 biogas plants and accounts for two-thirds of the world’s 15 gigawatts of biogas electricity capacity. Denmark alone, a country of 5.8 million people, has more than 160 biogas systems. For a period last summer, 18 percent of the gas consumed in Denmark came from RNG produced by its anaerobic digesters. Flush with their success, Danish bioenergy firms estimate it will be feasible to fully replace the country’s natural gas with renewable natural gas within 20 years.

The former manager of the EPA’s anaerobic digestion programs, Chris Voell, was so impressed with Denmark’s biogas operations — which are highly engineered to digest a mix of household food scraps, residuals from food processing businesses, and livestock manure — that he now works for the Danish Trade Council to introduce Danish digester technology and business models to the U.S market.

As with most climate initiatives, California is leading biogas efforts in the U.S. The state’s Low Carbon Fuel Standard (LCFS) — which provides incentives for fuel producers to increase the amount of low-carbon or renewable fuels they supply and sell — is a key component of the state’s ambitious climate plan and has catalyzed the rapid growth of a new, lucrative market for RNG as a vehicle fuel.

A growing crop of specialized firms builds, owns, and operates anaerobic digesters in the U.S.

Companies like Maas Energy Works and California Bioenergy have responded to these incentives by installing digesters at California’s dairy farms at a rapid clip. Maas has built 17 so far, with 12 more under construction and 32 others in development, according to its website. Both companies are racing to take advantage of valuable LCFS incentives.

And both are among a growing crop of specialized, investor-backed firms that build, own, and operate anaerobic digesters in the U.S. “With every day the industry is gaining more credibility,” Voell says. “We’re seeing more professional third-party companies. And in order to see this scale, it takes those professionals to come in and build 10, 20, 50 projects, and access a lot of equity investors. They want a portfolio of projects to invest in, not just one.”

In North Carolina, the abundant feedstock is hog manure. And the latest entrant in the RNG race is Smithfield, the world’s biggest grower of hogs. North Carolina is the second-largest pork-producing state (after Iowa). Each day, more than 2,000 of its hog farms flush manure from 9 million pigs into vast lagoons, which emit equally vast quantities of methane. Ninety percent of those farms are contract growers for Smithfield.

Late last year, Smithfield launched a joint venture, Align RNG, with a Virginia-based utility, Dominion Energy, to invest $250 million in covering lagoons and installing anaerobic digesters at nearly all of its hog finishing farms in North Carolina, Utah, and Missouri over the next 10 years. Construction is already underway on four projects that will produce enough RNG to power 14,000 homes and businesses.

A covered lagoon manure digester on Van Warmerdam Dairy in Galt, California. MAAS ENERGY WORKS

These systems will all be modeled on Optima KV, a biogas project in Kenansville, North Carolina, in the heart of hog country. Last year, Optima KV became the first project in the state to produce and inject RNG into an existing natural gas pipeline.

The factors that made Optima KV possible — along with the waste from 60,000 pigs on five nearby farms, and a centralized system to clean and upgrade the gas — include a state renewable energy portfolio standard law signed in 2007. That law contained a requirement that utilities source at least 0.2 percent of their electricity from swine and poultry waste by 2020. That mandate helped push Duke Energy, one of the biggest utilities in the U.S., to sign a 15-year agreement to purchase 80,000 million BTUs of RNG from Optima KV. That biogas will directly displace the use of fossil natural gas and generate 11,000 megawatt-hours of power in two of Duke’s power plants.

Vanguard’s new operation in Vermont represents an alternative model for scaling up RNG production. The company’s digesters are more complex and expensive — engineered to produce a consistent output of gas even as feedstocks and other conditions change — than the systems being built in California. The California systems basically cover huge dairy waste lagoons with plastic membranes and then extract, refine, and pipe the gas to customers.

“We take a more high-tech approach primarily because we need to produce a lot more gas from a much smaller footprint,” Hanselman says. “We don’t have the luxury of a 10,000-cow dairy.”

RNG has flourished in Europe because of generous subsidy programs that are lacking in the U.S.

Along with the daily stream of 100 tons of manure from the Goodrich farm’s 900 cows, and 165 tons of food waste, a number of factors have come together to make Vanguard’s Vermont project possible. In Middlebury College, Vanguard found a large customer eager to slash its carbon footprint. A new law about to take effect in Vermont will ban food waste from landfills starting in 2020, forcing grocery stores and food processors to find new places to send their waste.

And Goodrich Farm will get free heat, monthly lease payments for hosting the system, and bedding for its cows from the leftover digested solids — cost savings that can offer a lifeline for dairy farmers in a period of disastrously low milk prices.

Hanselman, Vanguard’s CEO, says that a key element to expanding RNG is taking the burden of running the system off of farmers. Hanselman encountered many irate farmers who had negative experiences with a previous generation of digesters that had been sold to them as a low-maintenance, low-cost solution to their nutrient management problems. In fact, digesters are finicky machines, sensitive to changes in temperature and the variability of organic material in feedstocks. Says Hanselman, “We tell our farmers, ‘Your job is to make milk, healthy cows, and take care of your fields and soils. Let us run these machines.’”

RNG has flourished in Europe in part because of generous subsidy programs; such comprehensive policies are lacking on the federal level in the U.S., which has a chaotic patchwork of regional and state markets, utilities, incentives, and policies. But Hanselman and others foresee that in the next several years, more states will mandate renewable natural gas production, further strengthening the fledgling biogas market.

“It feels extremely similar to solar,” says Hanselman, who used to run a solar company. “We are in the early days of RNG. Everyone will be running from program to program trying to figure out which states are beneficial, and how to best get RNG into the marketplace.”

Market forces alone, however, won’t be enough to usher in a biogas revolution. The single policy that could supercharge the growth of biogas and RNG in the U.S., most industry observers and insiders agree, is a federally legislated price on carbon. But given that a carbon tax or comprehensive climate bill aren’t likely to emerge any time soon under the current administration, Hanselman says the next best thing the federal government could do is reinstate the investment tax credit for digester systems, which lapsed in 2016.

Despite these challenges, Voell thinks there is now enough momentum to see biogas finally gain widespread traction as a renewable energy source in the U.S.

“I’m more encouraged now more than ever, because I’m actually seeing some projects getting built,” he says. “The states are stepping up with policies. And we’re seeing a revolution now where gas utilities are coming on board. Utilities wield a lot of power. If they decide RNG is something they’d like to see more of, then we’ll start to see the needle move more on the policy front.”

This article has been republished with the permission of Yale E360. It was originally published at Yale E360.


About the Author

Jonathan Mingle is a freelance journalist who focuses on the environment, climate, and development issues. His work has appeared in The New York Times, Slate, The Boston Globe, and other publications. He lives in Vermont

Quebec: Food App to prevent food waste now at the IGA

,

FoodHero, an app that prevents food from being thrown out is now part of the shopping experience at nearly 200 IGA stores across Québec. The FoodHero mobile app offers advantages for both consumers and stores owners.

It’s a simple concept: shoppers use the app to buy unsold products that are still perfectly good to eat, at prices marked down by 25% to 60%. One bargain at a time, consumers are saving on groceries and retailers are cutting both the economic and environmental (CO2 emissions) costs associated with producing, transporting and sending unsold products to landfills.

Downloads of FoodHero keep rising, confirming its status as a leader in this segment in Québec. For FoodHero founder Jonathan Defoy, the program’s popularity confirms the relevance of this tool, both from a consumer perspective and within distribution networks: “Food waste is becoming a major concern for more and more Quebecers, and FoodHero is a simple, concrete solution that lets them act on it, on a daily basis if they want. We’re very happy it’s been so popular with IGA customers,” he explained.

“We are very proud to collaborate with a Québec tech company such as FoodHero and we want to highlight the active involvement of our store owners in the program. Their efforts enabled us to roll out this anti-food waste initiative very quickly, offering an additional alternative to nearly 200 IGA locations across Québec,” said Carl Pichette, Vice President of Marketing for Sobeys, Inc.

About IGA
IGA is the largest group of independent grocers in Canada, and has been operating in Québec since 1953.

About FoodHero
FoodHero is a start-up founded by Jonathan Defoy, a serial entrepreneur with nearly 20 years of experience in the technology industry. He is supported by Alain Brisebois, a strategic advisor who has held several senior management positions at major retailers in the food industry. In addition to offering discounted products at participating retailers, FoodHero also calculates the CO2 “savings” by avoiding residual waste using a scientific formula validated by a firm with recognized expertise in renewable energy.