When Theory Meets Practice: Lessons from Decades of Packaging EPR Experiences in Europe

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Written by the Continuous Improvement Fund

Ontario is undertaking a transition to full extended producer responsibility (EPR) for packaging and paper products under the Resource Recovery and Circular Economy Act (the “RRCEA”). At their core, EPR policies seek to ensure that the pricing of products incorporates their social and environmental life-cycle costs, including end-of-life treatment and disposal. When products accurately incorporate such costs, industry is incentivized to design them in a way that considers their end-of-life environmental effects.

Decades of experience with mature packaging EPR systems in Europe, however, have not brought all the results that EPR intended to bring about. As Ontario undertakes its transition to full EPR under the RRCEA, there are lessons to be learned from Europe’s experiences with EPR.

European Packaging EPR Lessons on the Ground

In the European Union (EU), the Packaging and Packaging Waste Directive 94/62/EC (the “PPWD” or the “Directive”) creates the framework for implementing EPR programs in EU Member States. The Directive aims to reduce packaging and sets collection and recycling targets for packaging waste. The Essential Requirements provisions laid out in the PPWD provide criteria for packaging, such as weight and volume minimization requirements, hazardous substances levels and packaging reuse and recovery. It is notable, however, that while the Essential Requirements define the results to be attained, they do not specify or predict technical solutions, giving manufacturers the flexibility to meet the requirements of the Directive.

The PPWD has resulted in certain successes including an impressive increase in recycling rates for all Member States. By 2017, Member States achieved an average 42% recycling rate for plastics, well above the Directive’s requested 22.5%. There have likewise been improvements in individual packaging weight. On the other hand, the Directive has also had its shortcomings.

Vague definitions leave too much room for interpretation

Despite decades of packaging EPR in Member States, the European packaging market demonstrates a trend towards difficult-to-recycle packaging such as flexible multilayer composite packaging. Some trace this trend to a deficiency in the Essential Requirements in requiring design changes for re-use and recyclability and on definitions that leave too much room for interpretation, such as what qualifies as recyclable. Many producers have, as a result, tended to light-weight their packaging at the expense of its recyclability. At the same time, the amount of packaging waste generated in Europe continues to grow reflecting growth of global population and demand.

Enforcement left to Member States with varying resources

The vague and general formulations of the Essential Requirements also create enforcement challenges for Member States. Member States are responsible for reaching the national targets and ensuring good enforcement of the legislation. Authorities in Member States have expressed frustrations with judging which packaging is noncompliant with the Directive’s requirements. The Directive’s formulations are insufficient to enable a clear assessment of violations.

Many Member States do not have formal procedures in place to enforce or implement the requirements of the PPWD. Authorities also cite other priorities such as issues with food safety, or a lack of staff and finances. The few countries that have implemented measures and enforcement procedures for the requirements, including France and the UK, have delayed setting up systems to assess the effectiveness of their enforcement mechanisms.

Municipal costs are not fully covered

It should be noted that, despite producer responsibility for packaging waste, European municipalities generally remain in charge of waste management programs. Yet financial transfers from producers may not be covering the full amount of municipalities’ costs. A study of the cost coverage of packaging EPR programs in a number of European countries found that these programs failed to account for the full costs of the waste management of packaging. When excluding avoided costs (i.e., collection, landfilling, incineration, etc.) and subsidies (i.e., public grants), only 68% of the costs of packaging waste management in Portugal and 56% in France were being supported by industry in 2010. It bears mentioning that industry in France is obligated to cover 80% of local authorities’ “efficient costs” of collection and sorting.

Another study observed that producers’ motivation to improve waste management has also largely depended on the type of collection and management contracts that they establish with municipalities or on their dialogue with municipalities. Producers can tie their financial contributions to the municipalities’ collection or recycling rates, the quality of their collection or recycling, or on meeting requirements on the type of collection and treatment schemes to be implemented. When it comes to the fulsome reimbursement of municipal costs, the choice seems to be with Member States to determine what percentage of local authorities’ costs should be covered by packaging EPR. New amendments to European EPR laws, however, will ensure that industry will have to cover the full “necessary costs” of EPR schemes. Member States that wish to deviate from this requirement will have to justify their choices.

Europe Takes Action

In 2018, the EU reformed EPR rules in the context of its first Circular Economy Action Plan to require higher overall recycling targets for packaging (65% in 2025 and 70% in 2030) and higher material-specific targets (including 55% for plastics by 2030). At the same time, it moved the calculation of recycling targets based on the weight of municipal waste that enters recycling, removing any losses of materials due to sorting or other preliminary operations. The Directive now also requires Member States to establish “adequate” monitoring and enforcement frameworks to ensure that those responsible under the EPR framework carry out their obligations, use financial means properly and report reliable data.

As of June 11, 2020, the European Commission also published its plan for revising the requirements of the PPWD. The proposed changes will address the limited competitiveness of recycled materials relative to virgin feedstock, which is now even more inexpensive given the oil industry crisis brought about by the COVID-19 pandemic. The changes will also address the rise in public consumption of packaging driven by a shift from reusable to single-use disposable packaging, growing online sales and the over-packaging for goods.

The Commission has not been clear on whether the targets and measures under these upcoming changes will be general or set at the level of specific material or packaging formats, or whether they’ll be mandatory in nature. It is expected, however, that current and seemingly unenforceable definitions of terms such as “recyclable” or “reusable” will likely be updated.

Despite action at the EU-level, Member States appear to be lagging in their implementation of the 2018 update to the PPWD. Most missed the deadline to implement this Directive by mid-2020, some citing delays related to the COVID-19 pandemic.

At the same time, recycling markets were particularly impacted by the COVID-19 crisis. The crisis brought about safety concerns, employee shortages, manufacturing slow-downs and a historic drop to oil prices making virgin plastics much cheaper than recycled resin. European recyclers are encouraged by Europe’s recent focus on improving access to recycled resin as part of the EU’s Green Deal set of programs. However, they urge concrete actions such as mandatory recycled content rules in key products to ensure steady increases in the demand for recyclates.

Conclusion

It is unclear how many of these lessons will be implemented in the new printed paper and packaging regulation under Ontario’s RRCEA. Europe’s experiences demonstrate, however, the necessity of clear definitions, specific requirements for design changes for re-use and recyclability, adequate coverage of local authorities’ costs, and the allocation of resources to the oversight and enforcement of EPR programs. These practices help EPR programs better achieve their intended aims of ensuring that industry internalizes the life-cycle costs of their products and is incentivized to design products to account for their end-of-life environmental effects.

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This article was first posted by the Continuous Improvement Fund. The Continuous Improvement Fund (CIF) is a partnership between the Association of Municipalities of Ontario (AMO), the City of TorontoStewardship Ontario (SO) and the Resource Productivity and Recovery Authority (formerly Waste Diversion Ontario – WDO). The CIF’s mandate is to improve the effectiveness and efficiency of Ontario’s municipal blue box Programs.

Study on EPR’s effect on packaging prices: What you can and can’t do with data

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Written by Calvin Lakhan, Ph.D, Co-Investigator: “The Waste Wiki” – Faculty of Environmental Studies at York University

I’m actually really glad that Jodi Tomchyshyn London found and shared the following study by RRS: Impact of EPR for PPP on Price of Consumer Packaged Goods.

In short, after undertaking a fairly comprehensive examination of jurisdictions across Canada (both with and without EPR legislation), the study concluded that EPR policy has no affect on packaging prices.

The University had an opportunity to review this study as part of some technical advice that we were providing to the state of Oregon (specifically surrounding the impacts of EPR). The RRS study directly contravened our own findings, and as a result, we wanted to better understand why.

I want to preface this by saying that the intent of this post is not to criticize or undermine the work that RRS has done. It was well researched, and I applaud them for wading into such a messy and controversial topic and attempting to provide some clarity. However, the point I do want to make in this post is helping stakeholders understand what they can and cannot do with data. Jodi had made a really good point about understanding the context surrounding data – we need to understand how that information was collected, analyzed, interpreted and presented. I couldn’t agree more…. which is why I sometimes cringe when I see the conclusions that people arrive at, due to a fundamental misunderstanding of what you can do with data.

Going back to the RRS study, regardless of how you feel about EPR and its potential impacts, it is critical that stakeholders understand that the RRS study has some methodological deficiencies, and as a result, leads to erroneous conclusions that cannot be supported by the data. This isn’t a question of opinion – given the way the study was designed, it is not possible for RRS to make any statements regarding the effect of EPR policy on packaging prices. Comparing costs across jurisdictions (even for like products and retailers) is not likely to yield any meaningful inferences with respect to the impact of EPR policies. There are literally hundreds of variables that affect the price of goods across localities (even for the same product and retailer). Demographics, infrastructure, relative purchasing power, proximity to markets, density of competing retailers etc. all effect price. In order for RRS to make the statements they did, they would have to control for all of these factors using statistical techniques such as multivariate regression to specifically isolate the effects of EPR on packaging prices. Given that many of these explanatory variables are collinear, they would also need establish controls for interdependency among explanatory variables.

While the above description may be a tad technical, the best way to look at it is that we are trying to compare identical systems, where the only variable being changed is the presence or absence of EPR programs. All other variables that can potentially impact a product’s price need to be controlled for. As far as I can tell, RRS made no attempts to control for interdependent variables and arrived at a conclusion that cannot be substantiated empirically. The only observation that can be made is that product prices differ from province to province, but provides no insight as to why they differ.

Given that my perspective may be seen as biased given that the university developed an alternative model, I would *strongly* encourage you to have a third party expert with a background in statistics and study design to review the RRS methodology. I am absolutely positive that they would reach an identical conclusion.

This is what is so potentially dangerous about attempting to interpret data without having a sound knowledge of how that data was collected and what you can do with it. In my career, I have countless anecdotes of stakeholders from all walks of life who draw the wrong conclusions, imply causality or infer relationships that simply aren’t there. When a misinterpretation of data leads to policy and legislation, the results can be catastrophic.

In the very first presentation I ever gave on the Waste Wiki, one of the slides says “Data without consideration of context or design does not tell us very much”. That message rings true more than ever today.

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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.

Dispelling Misinformation about Packaging EPR in Ontario and Canada

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Written by Neil Savio Menezes, President at EcoCompass

Ontario is at a critical juncture for the future of recycling in the province. Regulations are being drafted to transition Ontario’s Blue Box program to full producer responsibility which will make producers of residential packaging, paper and packaging-like products (PPPP) operationally and financially responsible for managing their materials at the end-of-life. This concept has been discussed ad nauseum for almost two decades in Ontario following the introduction of the Waste Diversion Act in 2002 which gave us our current shared responsibility model.

While there has been no shortage of debate on the merits of transitioning recycling costs from municipalities to producers over the years, the noise has recently grown louder following stakeholder consultations by the Ministry of Environment, Conservation and Parks (MECP). Well informed debate is a crucial element of good policymaking but I’m concerned by the misinformation and half-truths circulating and their potential to influence policymakers into weakening the proposed regulations. We are at risk of losing sight of what is most important: implementing a proven policy tool as equitably as possible.

In my experience, clarity is best achieved through thoughtful analysis of good data. Over the last decade, I have worked with producers, municipalities, packaging suppliers, government agencies and stewardship programs to analyze data that has been used to inform arguments on both sides of this debate. I have conducted Activity Based Costing (ABC) studies, updated annual producer fees, verified municipal recycling costs, optimized municipal recycling operations and assessed the limitations of British Columbia’s producer responsibility program. Needless to say, I have had unparalleled access to an abundance of data that has enlightened my views on these issues. Arguments based on misconceptions and data missteps, as outlined below, are muddying the conversation and this is my attempt to cut through the noise.

Claim 1: EPR will not save taxpayers money.

Under a full producer responsibility, municipalities will no longer be regulated to collect and process recyclable materials. This responsibility will now fall on producers, where the regulations will set targets for their materials and they will need to find a way to meet them. Some municipalities may still incur costs if they opt to continue recycling services for non-eligible sources or non-eligible PPPP under the new regulations; however, with one less service for municipalities to provide, it’s hard to imagine a scenario where municipalities will not see net savings overall. These savings will not translate into a cheque in the mail to residents or a direct reduction in property taxes given that recycling programs tend to represent a small percentage of a municipality’s total annual budget (e.g. $60 million out of $11.12 billion in Toronto or 0.5% in 2018), but the savings do free up funds to offset other municipal costs. With the financial toll of COVID-19 rising, these savings could not come at a better time for cash-strapped municipalities.

Claim 2: Costs of Producer-Led EPR are rising in British Columbia and the same will happen in Ontario.

British Columbia adopted a full producer responsibility model for PPP in 2014. As the only province to have done so, it is often used as the benchmark for producer responsibility in Canada. Opponents of producer responsibility have latched onto rising costs in BC to argue that producer-led programs are no more effective than a municipally-operated program. This argument is being made in Ontario to influence policymakers but they should be wary of drawing concrete conclusions from the BC experience about the efficacy of full producer responsibility.

For one, Recycle BC (formerly Multi-Material British Columbia) did not service all municipal programs when it started. Notably, City of Vancouver did not fully transition to Recycle BC until October 2016. As municipal programs were added each year, it follows that Recycle BC costs would increase in turn. Secondly, the program is relatively young. With only five years worth of data and much of it not publicly available, any modeling or projections for Ontario based on the BC experience are imprecise at best. Lastly, BC has a parallel beverage deposit program that removes much of the high-value materials (PET and Aluminum) from the program. Given that this is not an apples to apples comparison, using BC data to estimate system costs in Ontario under full EPR is nonsensical. A direct comparison of system costs between BC and Ontario, without accounting for these variations is misleading, and inaccurate.

Claim 3: EPR will be an economic burden on Ontario households.

According to a York University Study, a transition to 100% producer responsibility in Ontario for PPPP has been modeled to increase the “basket of goods” costs for consumers by anywhere from 6-12%. As always, the value of a model is dependent on the quality of the data used and the assumptions made by the modeler. According to my calculations, the increase is more realistically less than 1% – a number that would barely register on an individual receipt. Unfortunately, the study has not been released to allow for a proper peer review. I tried to replicate the results of the model from a bottom-up and top-down approach, and I can’t come close to the results:

Example 1: Let us cherry pick the most damaging example of the impact of producer responsibility on an individual product in the Blue Box. The simplest way to do this would be to pick the material with the highest cost to manage (EPR fee) and the lowest retail cost to consumers.

In Ontario’s program, the packaging with the highest EPR fee is a multi-layered drink pouch, also called a plastic laminate. The cheapest product I could find was a case of 10 juice pouches that retails for $2.00 (20 cents per pouch). With a weight of 4 grams per pouch and a 2020 EPR fee of 35 cents per kg, this would equate to a total EPR fee of 0.14 cents for each pouch. The EPR fee on a case of ten drink pouches would be 1.4 cents today, and if you doubled it (transition to full producer responsibility) it would be just under 3 cents or 1.5% of the total cost. A household would need to buy approximately 700 juice pouches to see a one dollar increase to their grocery bill over the course of a year. If that’s as scary as it gets, I don’t think consumers have much to worry about.

Example 2: Even the “frightening” example above overstates the impact to consumers as it incorrectly assumes that brand owners will apply the packaging recycling fee to every bill. System costs post-transition will be addressed through national or international pricing structures. In other words, the cost of recycling borne by producers post-transition will be spread out across all of their products across Canada. To put things into perspective, retail sales were over $225 billion in Ontario and $605 billion nationally in 2018, according to the Retail Council of Canada. The Blue Box program at its current cost of $300 million a year represents a total of 0.15% of total retail sales in the province, or 0.05% nationally. Since producers in Ontario are already footing half the bill today, you can see how negligible the cost will be in the grand scheme of things.

Claim 4: There have yet to be any examples in Canada where stewards have been able to develop new end markets or viable end use applications for composite and light-weight materials.

Ultra-specific statements like these always illustrate to me either an inherent bias or a lack of understanding of producer responsibility. Limiting the discussion to Canada where EPR is relatively new obscures the impact EPR can have on recycling investments. In Europe and Asia where EPR has been around for decades, this policy tool has resulted in significant investments to recycle obligated materials, including those that are considered difficult to recycle. One example is Hahn Plastics which manufactures new plastic products from used rigid and flexible plastics. I had an opportunity to visit their facility three-years ago and saw first-hand how the Packaging Regulation introduced by Germany in 1991 has incented investments in innovative processes to recycle lightweight plastics.

However, if citing Canadian examples of end market development for composite and lightweight plastics is the only way to settle this debate, we need look no further than these examples of EPR-induced investment:

When examining the impact of EPR, it’s also important to remember that Canada is unique compared to other jurisdictions in that EPR has been applied at the provincial level rather than nationally, or entire trade blocs as is the case with the European Union. Even with a patchwork of policies across the country, Canadian stewards, steward organizations, municipalities and other stakeholders have made significant investments to improve sorting operations and develop successful end markets for recyclable materials. Take glass recycling for example: Stewardship Ontario funded a glass recycling facility in 2008 and Éco Entreprises Québec (EEQ) committed $40 M to improve glass recycling in Quebec. These investments were made under a shared financial responsibility model. As full EPR spreads across Canada, economies of scale will fuel even greater investment.

I will admit that not all investments have been successful nor will EPR guarantee success after transition; we have seen facilities shutter their operations despite significant investment here in Ontario. However, the current status quo will see investments slowdown until there is clarity and commitment to move forward. We have seen other provinces adopt innovative approaches to recycling and producer responsibility as we fall behind. This transition is an opportunity for Ontario to lead once again.

Claim 5: Packaging that offers greater environmental benefit, such as carbon abatement, but is expensive to recycle should not be recycled.

Setting ambitious recycling targets through producer responsibility does not need to come at the expense of low-carbon packaging. In fact, a recent commitment by major corporate players demonstrates that light-weighting and source reduction can go hand-in-hand with recycling targets. Just a few weeks ago, 60+ brands, retailers, government agencies and NGOs signed the US Plastics Pact. Companies like Coca-Cola, Unilever, Wal-Mart, The Clorox Company, and others agreed to take measures to eliminate problematic or unnecessary packaging by 2025, and by the same year, take steps to ensure all packaging is reusable, recyclable or compostable; recycle or compost 50% of plastic packaging; and, increase the average recycled content or responsibly sourced bio-based content in plastic packaging to 30%. This commitment does not prioritize one environmental issue over another, it recognizes that the combined issues of climate change, resource scarcity and plastic pollution require a suite of measures to overcome. I firmly believe that this embrace of circular economy principles by major corporate players and recognition of the control afforded by full producer responsibility to create circular material flows will improve the lifecycle impacts of packaging in Ontario.

It’s time to move forward.

The transition toward full producer responsibility has been a long-time coming and most stakeholders believe it is the right path forward. Unfortunately, we are seeing a repeat of lobbying efforts to derail this process using exaggerated cost estimates and other misleading arguments as opponents have successfully done in the past. To keep it on track, policymakers must be guided by sound logic and robust data.

Regulated outcomes like producer responsibility policies, coupled with strong corporate commitments, are what is necessary to drive change. Give producers the freedom to decide which is the more economical decision: either change their packaging to meet targets or develop end-of-life solutions for packaging materials that do not have one today. This is the basic intention of full producer responsibility. Ontario has an opportunity to support companies in their pursuit of a circular economy by getting the incentives right, leveling the playing field and giving them the certainty they need. Let’s cut through the noise and get this done.

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About the Author

Neil Savio Menezes is the President at EcoCompass, an environmental consulting firm that specializes in helping municipalities and companies achieve their recycling and diversion goals.

Fun with Waste: Transforming e-waste into post-apocalyptic landscapes

Photographer Benjamin Von Wong uses his photography as a way to make a positive social impact. Thought-provoking as they are beautiful, Von Wong’s high-concept series are innovative in their use of materials.

For his e-waste landscapes project, Von Wong used 1,800 kg of e-waste to create post apocalyptic landscapes.  The significance of the 1,800 kg explained Von Wong in an interview in My Modern Met, it that it equals the approximate amount of e-waste an American might use over their lifetime.

The Benefits of Regulatory Convergence on Sustainable Plastics Management within the Pacific Alliance

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Written by Maria Vizeu-Pinheiro, German Sturzenegger, Denisa Mertiri, and Jonathan D.Cocker

Plastic pollution, including through single-use plastics (SUPs), continues to plague natural environments around the world, including in Latin America and the Caribbean (LAC). The region produces around 28 million tons of plastic waste every year (12% of total municipal waste), of which around 36% is SUP. It is estimated that about 4 million tons of plastic waste could enter the ocean in 2020 due to inadequate solid waste management in coastal cities, where a significant portion of the population lives.

In LAC, there is growing interest in combating the shared problem of marine plastics. The countries of the Pacific Alliance (PA) -Chile, Colombia, Mexico and Peru- have launched an Environmental and Climate Change action plan, including a Presidential Declaration on Sustainable Use of Plastics[1] focused upon:

  • an analysis of plastic bag regulation and recommendations for the reduction of their use;
  • a targeted single-use plastic ban;
  • research and support for new productive models for plastic alternatives;
  • action on the reduction of plastic contamination in water, including marine environments;
  • strengthening the culture of responsible use of plastics and recycling;
  • circular economy model advancement;
  • promotion of re-use of plastic; and
  • the setting of a Road Map implementing these commitments.

In addition, individual PA countries, have each been active in promoting domestic strategies on plastic products and packaging, setting targets and developing regulations such as Extended Producer Responsibility (EPR), innovative recycling mechanisms such as “e-Coins”, and Circular Economy programs.

These initiatives, however, may not be enough in light of the proliferation of plastic pollution and the limited domestic waste management infrastructure. This shared understanding within the PA must now give rise to a coordinated regional action on plastics for which greater regulatory convergence is pivotal to its success.

10 Reasons for Adoption of a Regional Plastics Strategy

While the work on regulatory convergence around plastics, including SUPs, will not be easy, there are compelling reasons to do so:

1. Facilitation of Materials Flows

  • the wide variety of plastics material has left local governments and industry to unnecessarily dispose materials as “scrap” domestically. These materials could be valorized in other PA countries if barriers to transfer were lifted, an issue particularly pressing in light of the Basel Convention Ban.

2. Regional Scale Needed for Plastics Recycling Markets

  • addressing both the leakage of plastics and their value loss in less productive uses requires sufficient economies of scale that regional, and not domestic-only recycling infrastructure resources.

3. Innovation and Specialization:

  • with economies of scale will also come the conditions for investment in innovative products and resource recovery specialized solutions, potentially serving the entire region. These solutions will be imported into PA countries (based upon the regional needs and goals of others) if its members don’t otherwise develop their own;

4. Commercialization Through EPR Favours Regional Consistency

  • as EPR may well be part of the solution for plastics resource recovery, the formation of effective Producer Responsibility Organizations (PROs) is enhanced through regional PRO models, servicing discrete industry segments and able to administer programs consistency, with lower transactions costs across multiple countries;

5. Product Standards Development Suitable for PA

  • outside of the PA countries, there is current growth of plastics content standards (such as bioplastics) with corresponding resource recovery process requirements and specifications. These standards will be implemented in PA countries absent a regional alternative – even though these standards are based upon socio-economic and environmental conditions dissimilar to those of LAC;

6. Material Bans Feasible Regionally

  • critical issues remain as to which types of plastics, for which uses and of what plastic material (and its potentially hazardous content) should be permitted by PA countries. Only through a regional strategy will the PA be able to ensure their domestic choices are implementable;

7. Regional Market Data Will Attract Investment

  • the early adoption of regional terminology and methodologies will generate PA-wide data necessary to better attract investment;

8. Ensuring Safety

  • food and other safety and quality measures must be imposed upon any plastics packaging or SUPs introduced within the PA. A regional strategy allows for commonly adoptable tracking and tracing technology, as well as labelling, to ensure the providence of the plastics introduced in the region’s markets;

9. Near-term Financial Recovery Opportunity

  • plastics represent a resource for which there are clear near-term recovery solutions, such as energy production and valuable products made with recovered plastics, which will result in tangible economic gains for local communities across the PA; and

10. International Stakeholder Funding Available

  • along with the push for plastics pollution solutions has come significant funding from international stakeholders, which will be acutely needed during the challenging post-COVID-19 economic fallout;

In summary, there are both immediate and long-term benefits to a PA-focused plastics strategy.  Plastics offers PA countries a relatively easy entry point for the types of economic and environmental joint efforts envisioned in the region’s action plan.

The opportunities for plastics within the region are, however, time-limited. International pressure for conformity with policies most suitable elsewhere will intensify in the absence of demonstrable success.

Further, delays in moving towards convergence will make harmonization more difficult. With individual PA countries developing disparate programs, for which investments and long-term commitments will be based, a move to harmonize internally will be more difficult over time.

The PA countries should move to engage stakeholders, including regional private sector parties, in developing a critical pathway towards achieving these ambitious goals.


[1] This declaration was signed during the 2019 Pacific Alliance summit in Peru

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About the Authors

Maria Vizeu Pinheiro is a lawyer specializing in environmental and natural resources issues at the Environment, Rural Development and Disaster Risk Management Division of the Inter-American Development Bank (IDB). Maria works on the analysis of environmental policies, governance and regulatory frameworks for the Bank’s operations.

Germán Sturzenegger is a Senior Water and Sanitation Specialist at the Inter-American Development Bank. He has participated in the design and implementation of water and sanitation projects throughout Latin America and the Caribbean. Germán leads the recycling and green infrastructure agenda for the Water and Sanitation Division of the IDB, working on the implementation of river conservation and inclusive recycling projects.

Denisa Mertiri, J.D. (Green Earth Strategy) provides legal and policy advice to clients on waste management, single-use reduction, circular economy and extended producer responsibility laws. Denisa has worked with the City of Toronto and other municipalities in Ontario, Canada, on Ontario’s transition to EPR and on single-use reduction and circular economy policies.

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.

EPR FAQ: Answers to commonly asked questions and claims

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Written by Calvin Calvin Lakhan, Ph.D, Co-Investigator: “The Waste Wiki” – Faculty of Environmental Studies at York University

Oh goodness gracious, I appear to have really stepped in it this time (although I do suppose I have a history of doing that). My last article about EPR really rankled some feathers and resulted in some heated exchanges with people that disagree.

A little birdie even told me that the word on the collection route is that I am in cahoots with producers and that I am trying to derail the Blue Box transition. If I’m on the take, can someone please let my bank know? I apparently am not receiving any of the money they are paying me to speak out against EPR.

My response to criticism has always been more or less the same – show me the data. My last article asking for any information that supported the efficacy of EPR for packaging waste was met with radio silence. I did have one individual tell me I was wrong, but when I asked them to provide evidence, they responded that I should pay them for their time…. that was a bit of a head scratcher.

In any event, I thought I would share a document I recently put together for the Ontario Environment Ministry outlining some of York University’s responses to commonly asked questions or claims regarding EPR for packaging waste. I also want to re-iterate that I have no issues with EPR as a concept, nor do I think producers should be absolved of their physical and financial responsibility at end of life. My issue has to do with the way EPR is currently implemented, and the challenges that arise when our goal is increasing recycling.

Please note that some of these comments are Ontario specific and refer to proposed changes in the Blue Box legislation. I still think it is of value to those outside of the province to better understand the issues we face as we transition to 100% EPR.

Questions surrounding Extended Producer Responsibility

Extended Producer Responsibility subscribes to the “Polluter Pays” Principle (transferring the responsibility of managing end of life waste to the polluter.

While the polluter pays principle is certainly the spirit of EPR, people often erroneously conflate “polluter pays” with the inability to recycle a material. The most sustainable outcome is not necessarily the one that recycles the most material – from a life cycle perspective, package light weighting has far greater environmental benefits, even in instances where the package cannot be recycled. Instead of encouraging or incenting producers to develop the most sustainable solution, we are telling them to develop recyclable solutions, which in many instances, results in inferior economic and environmental outcomes. Our fixation on using recycling rates and recyclability as the measuring stick for success is why program costs are increasing by double digits year over year, while diversion is actually decreasing.

EPR is not intended to create cost containment; it purely a funding mechanism to shift the burden from the taxpayer to the consumer

A system that does not contain costs is not tenable or sustainable. This is the fundamental issue with existing approaches to EPR. Proponents will say costs are now born by the right party, but what that cost is has significant implications to all stakeholders. Further to that point, while the intended purpose of EPR is intended to make consumers responsible for end of life costs, existing and proposed approaches to legislation are obliging consumers to pay for the costs of operating the recycling system. Recycling is not and should not be the only end of life option that we consider for how printed paper and packaging is managed. Not all materials are created or recycled equally – thus, it seems prudent that we explore options that maximize environmental and economic outcomes by differentiating how and where certain materials should be managed. The decision to recycle everything, everywhere, is the foremost issue facing the long term tenability of the Blue Box program.

The proposed Blue Box transition will save Ontario taxpayers money

A common refrain made by advocates of the transition to 100% producer responsibility is that transitioning program costs to stewards will result in taxpayer savings. Under the proposed legislation, stewards will be responsible for an additional $135 million dollars in program costs (exclusive of proposed changes to what sectors are obligated). The underlying intuition behind the tax savings hypothesis is that municipalities will pass this $135 million in savings onto households, either through a reduction in property tax or utility rates.

While this would be an optimal solution, there is no evidence to suggest that this will be the case. Municipalities (particularly in a post COVID world), grapple with significant budgetary shortfalls and are in all likelihood going to take the funds “saved” from transitioning the Blue Box program and re-allocating those funds to other programs and services. In British Columbia, there is no data to suggest the transition to 100% EPR has resulted in a tax savings for households.

While there is an argument to be made that the reallocation of funds to support other municipal programs and services benefits households, the benefits that are accrued are indirect and do not offset the increase in packaging costs that are attributable to EPR.

EPR does not increase cost of living

As a tangent to the previous point, advocates of EPR often contend that there is no appreciable impact in the cost of living attributable to the transition to full producer responsibility.

An examination of how the fee model works and how producers respond to a corresponding increase in fee rates demonstrates that this is not true. In fact, the transition to a 100% EPR system has been modeled to increase “basket of goods” costs for consumers by anywhere from 6-12%.

While a supplementary document that accompanies this FAQ explains the relationship between EPR and the cost of packaged goods in greater detail, in short, the costs to consumers are both “direct” (an increase in fees directly translates into a proportional increase in packaging costs) and “indirect”(cost escalation resulting from producers passing costs onto the consumer resulting from an increase in their funding obligation).

A direct increase in costs are shown in how the fee model works. Any increase in recycling system costs are re-distributed to obligated materials in direct proportion to that materials share of overall costs. In Ontario’s case, the additional $135 million dollars in program costs that stewards are now obligated for are immediately translated into an increase in fee rates, which in turn, are built into the price of packaged goods.

Indirect costs are slightly more difficult to quantify, but are based on a log linear adaptation of an input/output model used to quantify the economic and labor impacts of waste management activities. Our adapted model attempts to isolate the specific impacts of increases in waste management costs on consumption baskets.

While the materials in the accompanying document describe this model in greater detail, increases in costs borne by producers can manifest in the following ways: 1) costs being passed directly onto the consumer in the form of increased prices or a reduction in product size 2) costs are internalized, but results in reduced investment, job losses, company contraction etc. 3) some combination thereof (most realistic outcome).

What few people seem to recognize is that the potential increase in costs borne by the consumer are multiples higher than the direct increase in the steward obligation. As an example, if producers collectively reduced their investment in the province by $135 million dollars, the overall impact on the economy is north of half a billion dollars in both direct and indirect costs (as per the input/output multiplier).

A steward lead EPR program will inherently contain costs

An argument this is made in favor of steward lead EPR programs (where producers assume responsibility for the entire system), is that they have a greater ability to control costs relative to muncipalities, as they are not bound by geographical boundaries.

This is a logical fallacy for a number of reasons. The foremost issue is that there is no evidence to suggest that stewards are more efficient at operating a recycling program or containing costs. Recycle BC, which is often touted as a best practice model of steward lead EPR, has experienced the highest increase in year over year recycling system costs of any province in the country. In the past 3 years, recycling system costs have increased by more than 45%. The purported benefits of cost containment by stewards can only be achieved if there is a coordinated effort that represents the collective interests of all obligated stewards. However, due to the sheer number of participants (that vary in size, sector and locality), most stewards are largely passive participants in the Recycle BC program.

A comment made by ministry staff that “Private industry has always claimed to be more efficient than government” is a bit of a half-truth. Private companies who operate in the same space/sector as a government equivalent is often claimed to be more efficient. However, handing producers the reigns to the Blue Box is not the same thing – this isn’t a situation where the Waste Managements, Emterras and GFLs of the world are being compared to municipal waste management operators. This is a situation where we are asking major CPG companies to take control of the waste management system. By their own admission (and feel free to ask – they aren’t shy in telling you), most packaging companies have no clue how to operate an efficient waste management system. They will in all likelihood have to engage in individual contracts with waste service operators (both private and municipal) who are managing the programs now…. Except, we have the added administrative costs of having to coordinate multiple companies with multiple contractors.

There is a term in economics that we refer to as “communication externalities”. Efficiency of communication and coordination becomes more difficult as a greater number of participants enter the system, particularly if participants are of unequal size, power or do not have access to the same information. Communication externalities are often sufficient to completely deter cooperation all together. This is a very real risk as producers take over the system, particularly because they lack a common voice or entity that represents their collective interests.

A steward lead EPR program will lead to new end use applications and end markets for difficult to recycle materials

There have yet to be any examples in Canada where stewards have been able to develop new end markets or viable end use applications for composite and light-weight materials. While there have been “one off” situations where producers have worked collaboratively with the waste service providers to capture and recycle a specific materials (i.e. Green Mountain and Recycle BC partnering to recycle the K-Cup), those solutions were neither scalable (only available in one locality) or economical.

The above example highlights the issue with this line of reasoning – in the absence of a relationship that is site and situation specific, stewards do not and should not have the ability to disrupt commodity markets. If a material inherently has value, the market will signal that this material should be captured, and that there will be an end market willing to purchase that material. If commodity markets dictate that a material has nominal or no value, then attempting to collect and recycle that material will result in a significant cost, with virtually no benefit. Unless there is prescriptive recycled content legislation that mandates the use of that material in new products (which may or may not have technical barriers), then the only use for that material will be in bespoke recycling solutions that are more novel than practical.

At present, recycling markets for composite and light weight plastics remains virtually non-existent, and it is unlikely that stewards will be able to change that in the near term.

A steward lead EPR program will incent producers to design more sustainable packaging

Referring to the principles of the waste management hierarchy – reduction is preferred to reuse, and reuse is preferred to recycling, then through that lens, many producers are already developing more sustainable packaging. Once again, the issue is that most people (both policy planners and the public) conflate recycling with sustainability – if it can’t be recycled, it must be bad.

While package light weighting has often been characterized as a negative due to low levels of recyclability, most life cycle analysis studies demonstrate that the “upstream” environmental savings (resulting from a reduction in material used, efficiencies in transportation and logisitics and increased shelf life) significantly offsets the environmental impact of being unable to recycle those materials.

Existing and proposed legislation incents recycling (and in some instances, takes punitive measures towards materials that have low levels of recyclability), but offers no credit for the waste reduction that is achieved. In many ways, the existing approach may result in an environmentally and economically perverse outcome, where producers “switch back” into heavier, but more recyclable packaging.

Issues Surrounding Proposed Impacts of the Blue Box Expansion into the IC&I Sector

We have no data

EPR is fundamentally premised on being able to allocate end of life management costs to the correct obligated party. In doing so, the following information is required:

1)     Who are the generators?

2)     What is the total quantity of material being generated/recovered (by sector and by generator)

3)     What types of material (composition) are being generated/recovered (by sector and by generator)

4)     How is waste currently being managed? (who is collecting it, where does it go, where does it end up etc.)

5)     How much does it cost to manage? (Including costs by activity type – collection/sorting/baling)

At present, there is no reliable data regarding the aforementioned data points with respect to the IC&I sector. We know neither the size nor scale of the issue, and have no ability to track how waste is managed throughout the system.

In the absence of having this data, is it is virtually impossible to determine what the steward obligation should be, or how to allocate those costs to individual stewards.

We don’t have the administrative infrastructure

Collecting the necessary data (including who is responsible for gathering this information, who owns it, and how this data is verified/vetted) is something that needs to be figured out before we can even begin to have conversations surrounding expanding the Blue Box into the IC&I sector.

Further to that point, the province also needs to be able to know the roles and responsibilities of affected stakeholders regarding quantifying and allocating costs to the appropriate steward.

Given the sheer # of producers who operate in the IC&I sector, the administrative externalities associated with the above activities are enormous, and are costs that have yet to be quantified when estimating what the increase in the steward obligation may be.

We don’t know if we have the infrastructural capacity

At present, the province has no way of knowing whether there is sufficient capacity within the existing system to accommodate for increases in diversion attributable to any legislative changes. With respect to material recycling facilities for printed paper and packaging, we do not even have a list of all the private and public facilities in the province, nor do we have any estimates surrounding their approved and existing capacity.

It seems entirely plausible that capturing more PP&P from the IC&I sector would require infrastructural investments to expand system capacity (for both collection and processing), which is a cost that has not been quantified.

Ministry staff have indicated that proposed changes are not intended to take effect for 6 years, and as such, it is impossible to understand what system capacity will be then, and what changes will need to be made now. This is not an adequate answer – the decision to invest in infrastructure, even if those changes are not anticipated for another 6 years, is something that needs to be planned for now. As an example, if we know that the proliferation of light weight and composite plastics is likely to increase over time, then significant changes will have to be made to existing infrastructure will be required (although I personally feel that spending money trying to capture these materials is a fools errand).

It is not good enough to say “I don’t know what the future will look like, but you will have to pay that bill when it comes due”.

Material from schools, long term care facilities and multi-residential sectors are heavily contaminated

According to waste audits conducted for these sectors, contamination rates are significantly higher for the recycling stream when compared to waste generated from single family homes.

Schools and long term care/retirement facilities struggle with fiber contamination in particular, which significantly impairs its value, or in some instances, makes it completely unrecyclable. As such, an expansion of the steward obligation into these sectors is likely to result in an even more acute escalation in costs (beyond what has been estimated), as revenues received from the sale of collected recyclables is likely to be depressed.

Markets for recyclables are deteriorating, and an expansion is going to make it worse

Setting aside concerns surrounding contamination and its negative effect on revenue, there is also the practical issue that collecting more printed paper and packaging from the IC&I sector is going to exacerbate already deteriorating prices for recyclables.

Beginning with the Chinese sword and further compounded by the global economic slowdown resulting from COVID, prices for most PP&P is languishing. As a result, any proposed legislative change that is likely to result in more recyclable material being marketed is going to make a bad situation even worse. With that being said, that is not necessarily an outcome that needs to be avoided – as noted earlier, allowing commodity markets to operate freely is likely to result in the most economically efficient outcome.

However, lower prices for recyclables poses significant challenges to domestic recycling brokers and re-processors, which necessitates that any legislative change that can potentially affect commodity prices is approached with caution.

Existing estimates surrounding the cost of expanding the steward obligation assumes a fixed IC&I material management cost

Current estimates by the ministry surrounding the proposed expansion of the Blue Box into the IC&I sector does not take into account the composition of material from these sectors. The general expectation is that stewards will be obligated for the total system cost of servicing these sectors, and will negotiate individual relationships with PROs for how this material gets managed.

For as much as I can understand and appreciate that the obligation does not refer to specific material categories, we cannot in good faith estimate a cost for servicing these sectors without taking into consideration what materials are generated by these sectors.

Collecting uncontaminated office paper from Office Buildings is fundamentally different than collecting a mixed bale of contaminated fiber and tetrapaks from a school yard. The delta in material management costs is enormous. To say that we don’t need to take that into consideration when developing our existing estimates completely ignores the reality of the situation.

No one size fits all approach

A sentiment expressed earlier is that not all materials are created equal, and neither is all recycling. So with that in mind, why should legislation treat all materials the same way?

Proposed legislative changes under the Blue Box transition has the potential to adversely affect a significant number of stewards, particularly those who manufacture light weight and composite plastics. However, these same changes are being embraced by beverage stewards, who are looking to capture as much material as they can from both the residential and IC&I sector. Ideally, legislation should be able to allow stewards the approach that yields to most economic and environmentally sustainable outcome, while ensuring that they meet their legislative requirements.

This is why it is so critical that the goals of Blue Box legislation should be outcome based (total carbon abated) as opposed to tonnage based (recycling/diversion rates). It is possible to recycle less material in an absolute sense, but achieve a superior environmental and economic outcome by prioritizing certain materials for recovery.

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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.

Fun with Waste: Bin Art

The City of Kamloops recently added to its collection of  painted garbage bins.

“I wanted to create something unique and eye catching with vibrant colours, depth, and cohesion that athletes, fans, families, coaches, and passersby will enjoy,” stated the artist, Kristen Gardner, who painted the works in a press release. “I hope that my work makes people smile and brings some happiness and vibrancy to the concrete setting.”

The project is aimed at increasing vibrancy and decreasing vandalism; each bin is given an anti-graffiti coating. Last year a couple dozen bins were painted over.

Industry 4.0 and the Circular Economy: Towards a Wasteless Future or a Wasteful Planet?

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Industry 4.0 and Circular Economy: Towards a Wasteless Future or a Wasteful Planet?
Written by Antonis Mavropoulos and Anders Waage Nilsen
Publishing September 2020

HOW THE MARRIAGE OF INDUSTRY 4.0 AND THE CIRCULAR ECONOMY CAN RADICALLY TRANSFORM WASTE MANAGEMENT—AND OUR WORLD

Do we really have to make a choice between a wasteless and nonproductive world or a wasteful and ultimately self-destructive one? Futurist and world-renowned waste management scientist Antonis Mavropoulos and sustainable business developer and digital strategist Anders Waage Nilsen respond with a ringing and optimistic “No!” They explore the Earth-changing potential of a happy (and wasteless) marriage between Industry 4.0 and a Circular Economy that could—with properly reshaped waste management practices—deliver transformative environmental, health, and societal benefits. This book is about the possibility of a brand-new world and the challenges to achieve it.

The fourth industrial revolution has given us innovations including robotics, artificial intelligence, 3D-printing, and biotech. By using these technologies to advance the Circular Economy—where industry produces more durable materials and runs on its own byproducts—the waste management industry will become a central element of a more sustainable world and can ensure its own, but well beyond business as usual, future. Mavropoulos and Nilsen look at how this can be achieved—a wasteless world will require more waste management—and examine obstacles and opportunities such as demographics, urbanization, global warming, and the environmental strain caused by the rise of the global middle class.

  • Explore the new prevention, reduction, and elimination methods transforming waste management
  • Comprehend and capitalize on the business implications for the sector
  • Understand the theory via practical examples and case studies
  • Appreciate the social benefits of the new approach

Waste-management has always been vital for the protection of health and the environment. Now it can become a crucial role model in showing how Industry 4.0 and the Circular Economy can converge to ensure flourishing, sustainable—and much brighter—future.

Source: Wiley Publishers

Waste To Energy (WTE) Market Size is Projected to Reach USD 27.7 Billion by 2025

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According to a recent market study, the global waste to energy market size was valued at USD 17.3 billion in 2017 and is projected to reach USD 27.7 billion by 2025, growing at a CAGR of 6.1% from 2018 to 2025.

The Waste to Energy (WTE) or energy-from-waste (EFW) is the process of generating energy in the form of electricity and/or heat from the incineration of waste. The energy produced from this process is close to that produced from coal, natural gas, oil, or other processes. The waste to energy cycle is projected to reduce landfill municipal solid waste ( MSW) by 90 percent, which will further reduce the emissions of carbon dioxide (CO2) produced by the waste.

TRENDS INFLUENCING THE WASTE TO ENERGY MARKET SIZE

Substantial growth in energy consumption, coupled with increased emphasis on energy generation from renewable energy sources, is expected to push global waste to the energy market.

Increased domestic and industrial waste has prompted governments across regions to generate energy from waste. Furthermore, the increased investment by various governing bodies, particularly in developing countries in Asia-Pacific, such as China and India, coupled with rapid urbanization and significant growth in consumer spending capacity, is expected to drive global waste to the size of the energy market in the forecast period.

Biological treatments include the treatment of waste with microorganisms to generate energy. Such approaches are considered more environmentally friendly than thermal techniques, and their market penetration is expected to grow over the forecast period.

It is expected that high installation costs and toxic gas emissions during incineration would impede market growth over the forecast period.

WASTE TO ENERGY MARKET SHARE ANALYSIS

Thermal technologies have emerged as the leading technology employed to produce energy from waste. In 2019, the segment generated 87 percent of total market revenue.

Asia-Pacific is projected to witness the highest growth rate from 2018 to 2025, mainly due to the rise in demand for energy. The rise in industrialization, coupled with rapid urbanization activities in emerging economies such as China and India, is expected to drive the market during the forecast period.

In 2017 Europe, in terms of sales, retained the leading waste to the energy market share. This dominance is attributed to the rise in the production of municipal solid waste (MSW), combined with the increase in energy demand. This region is investing heavily in developing renewable energy production.

TOP COMPANIES IN THE WASTE TO ENERGY MARKET

Many players operating in this waste to the energy market are actively pursuing marketing strategies such as partnership, company expansion, mergers & acquisitions, and joint ventures to improve their position.

Key Companies:

  • Waste Management Inc.
  • Suez Environnement S.A.
  • C&G Environmental Protection Holdings
  • Constructions industrielles de la Méditerranée (CNIM)
  • China Everbright International Limited
  • Covanta Energy Corporation
  • Foster Wheeler A.G.
  • Abu Dhabi National Energy Company PJSC
  • Babcock & Wilcox Enterprises, Inc.
  • Veolia Environment.

The End of Landfills in Ontario? Proposed amendments to the Environmental Assessment Act and the Impact on Waste Management

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Written by Harry Dahme and Jessica Boily, Gowlings WLG

On July 8, 2020, the Ontario government introduced Bill 197 in the Legislative Assembly. Entitled the COVID-19 Economic Recovery Act, the proposed changes within the Bill amend twenty different Acts, including the Environmental Assessment Act.

While some of the amendments proposed in Bill 197 seek to address challenges encountered during COVID-19 (such as the changes to the Provincial Offences Act, covered in our COVID-19 Update), the Bill primarily includes reforms that were on the government’s agenda prior to the COVID-19 pandemic. These reforms include some of the most significant reforms to Ontario’s environmental assessment regime in many years. The Gowling WLG Environmental Law Group will be publishing a series of articles on these proposed reforms, which are expected to be fast-tracked through the Legislature this week.

From the point of view of waste management in Ontario, one of the most significant changes to be made by the Bill is the addition of a new section to the Environmental Assessment Act that would give municipalities the right to veto new landfills proposed to be located within their own borders or in adjacent municipalities where the proposed new landfill is within 3.5 kilometers of the municipal border. This amendment to the EAA would provide municipalities with the unprecedented ability to stop new landfills for any reason, even where the environmental assessment for that landfill would otherwise be satisfactory to the provincial government.

Demand the right coalition emerges

In 2018, Ingersoll Mayor, Ted Comiskey, started the “Demand the Right” Coalition of Ontario Municipalities, seeking support from other municipalities for legislation that would allow municipalities to say no to projects like windfarms and landfills.

On March 1, 2018, Ernie Hardeman, MPP for Oxford, the riding that includes Ingersoll, introduced a private members bill dealing with the issue. Bill 201Respecting Municipal Authority over Landfilling Sites Act, 2018, would have amended the EAA to prevent the Minister of the Environment, Conservation and Parks from giving approval to an undertaking unless the municipal council had passed a resolution supporting the establishment of the landfilling site. The Bill did not receive Second Reading in the Legislature and died on the Order Paper when the Legislature was dissolved for the last provincial election.

During that election in 2018, Doug Ford stated that he respected “the right for local municipalities to make the decisions best for their communities.”

Following the election in 2018, the Ministry of the Environment, Conservation and Parks (“MECP”) released the Made-in-Ontario Environment Plan, which stated it intended to provide “municipalities and communities they represent with a say in landfill siting approvals “. No firm commitment to a veto was made at that time and there were no consultations on the proposed amendments to the EAA affecting landfills prior to the introduction of Bill 197.

The state of landfill capacity in Ontario

Many Ontarians are not aware of the waste disposal crisis in which Ontario finds itself. The Ontario Waste Management Association reports that unless new landfills are built, Ontario’s landfill capacity will be exhausted by 2032. More than 80% of this capacity is located within a small number of sites (15 public and private landfills). These predictions assume that Ontario will continue to export approximately 30% of its waste to the United States, primarily to landfill sites in Michigan and New York. Should those exports stop, Ontario’s landfill capacity would be exhausted by 2028: only eight years from now. This is significant since it takes years, and sometimes more than a decade, to obtain approval for a new landfilling site.

Even before the introduction of Bill 197, the length and uncertainty of the environmental assessment process for new landfills and expansions to existing landfills meant that this crisis was not improving. While increased waste diversion is a laudable goal, even with significantly improved waste diversion rates, existing landfill capacity will be put under significant pressure in the next ten years.

Bill 197

Given the near future waste disposal crisis in the province, there is a demonstrated need for new landfills to be built and existing landfills to be expanded. While Bill 197 aims to streamline existing environmental assessment processes for some projects, it introduces a municipal veto over new landfills that is expected to almost entirely halt the planning for and building of new landfills in Ontario.

Section 10 of Schedule 6 to Bill 197 proposes to amend the EAA by adding a new section 6.01, which would provide that proponents who wish to establish a landfilling site that is subject to Part II of the EAA obtain “municipal support” for the undertaking. Municipal support must be obtained, not only from the local municipality in which the landfilling site is situated, but from any other municipality located within a 3.5 km distance from the property boundary of the proposed landfilling site. This support, as set out in s. 6.01(5), is demonstrated by providing a copy of a municipal council resolution from each of the municipalities, indicating that the municipality supports the undertaking.

This requirement applies to not only new future landfill proposals but also to landfills currently undergoing the environmental assessment process, even though EAA approval had been previously obtained for the Terms of Reference for that environmental assessment process and even though the environmental assessment process was proceeding in compliance with the approved Terms of Reference.

Proposed section 6.01 applies only to landfills, as opposed to all types of waste management facilities based on the definition of “landfilling site” which is defined as a waste disposal site where landfilling occurs.

While section 6.01 certainly applies to new landfills within the province, it could also potentially  be read to apply to expansions of existing large landfills as well. Section 6.01(3) states that the section applies “in respect of a proponent who wishes to proceed with an undertaking to establish a waste disposal site that, (a) is a landfilling site; and (b) is subject to this Part.” While the plain meaning of “establish”, which connotes the initial or first approval and construction of a project, is consistent with the meaning used within the Environmental Protection Act in the context of waste disposal sites, “establish” is not defined within the EAA itself. This leads to the possibility that the unique characteristics of any landfill expansion could lead to an interpretation that the expansion involves the establishment of a waste disposal site. If that interpretation is adopted, then that has huge ramifications with respect to the future availability of landfill capacity in Ontario, exacerbating even more the imminent waste disposal crisis in Ontario.


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.

 

About the Authors

Harry Dahme is a partner in Gowling WLG’s Toronto office and past leader of the firm’s Environmental Law Group. He has practised exclusively in the area of environmental law since 1984, and has a solid reputation as one of the foremost environmental lawyers in Canada. Harry is certified by the Law Society of Ontario as a specialist in environmental law, and is described by Who’s Who Legal: Canada 2014 as “widely regarded as a leading authority in the field,” by Legal 500 Canada 2017 as “absolutely fantastic” and by Acritas Stars 2017 as “an acknowledged expert in environmental law.”
Jessica Boily is an environmental lawyer in Gowling WLG’s Toronto office. Her practice focuses on environmental litigation, drawing on her commercial litigation background to achieve successful and cost-effective outcomes. She uses her procedural expertise and technical knowledge to advocate for her clients. Jessica understands that complex disputes require creative scientific and legal approaches. Her clients appreciate her practical advice when managing and resolving multi-party environmental disputes. When litigation is necessary, her clients know her courtroom and tribunal experience will help them achieve the outcome they want.