Canada: Bill 91, New Waste Reduction Act

Last Updated: June 24 2013
Article by Dianne Saxe

Ontario Environment Minister Jim Bradley has introduced Bill 91, a proposed Waste Reduction Act, 2013. The new Act is intended to kickstart further waste diversion, especially in the industrial, commercial and institutional sectors, where waste diversion rates remain low. It will also require waste diversion costs to be embedded in the price of products, instead of being a visible "eco-fee". This new law is the signature achievement that Minister Bradley originally announced he wanted to get done while he is Minister of the Environment.

Key elements of proposed Waste Reduction Act

The proposed Waste Reduction Act, 2013 would replace the Waste Diversion Act, 2002,  and would:

  1. Establish individual producer responsibility requirements to divert end of life products which result in designated wastes, instead of putting the responsibility on entire industry sectors. The Act would enable the setting of standards related to waste diversion and services. Producers would have the flexibility to determine how best to meet the standards. It would make producers and those persons related to a producer or group of producers equally responsible for meeting the set standards.
  2. Avoid consumer resistance to "eco-fees" by requiring all-in pricing (no visible fee) for products that create designated wastes. Any vendor choosing to publicly display the waste diversion costs that are embedded in the price of a product, must do so "in a transparent and accurate manner". False or misleading representations would be an offence.
  3. Require producers to reimburse a municipality for the municipality's collection and handling costs for designated wastes.
  4. Transform the unpopular, financially challenged Waste Diversion Ontario into a new Waste Reduction Authority with responsibility to oversee the compliance and enforcement of the new individual producer responsibility regime. It would operate a registry, allow for inspections and enforcement, and be able to issue monetary penalties for non-compliance with the Act and regulations. The Authority would be financed by fees and administrative penalties, determined through future regulations. Generally, one key goal of a delegated administrative authority is to make the regulated industry pay for its own regulation and enforcement.
  5. Repeal the Waste Diversion Act, 2002, and transition the four currently operating waste diversion programs into the new regime.

The proposed framework legislation would continue the existing Blue Box program and would permit an increase in steward funding for the program beyond the current 50 per cent.

Explanatory Note

The Bill's explanatory note summarizes the Bill as follows:

"Part I (General) states that the purpose of the Act is to promote the reduction, reuse and recycling of waste derived from products, and contains definitions and other provisions of general application.

Part II (Waste Reduction Authority) continues Waste Diversion Ontario, a corporation without share capital established under the old Act, under the new name of Waste Reduction Authority ("the Authority").  The objects of the Authority include ensuring that waste reduction activities are undertaken in accordance with the Act and the regulations made under it.  The Minister of the Environment is allowed to appoint only a minority of the members of the board of directors of the Authority.  The Authority can set and collect fees, and is required to appoint a Registrar and inspectors.  The Registrar is required to establish, maintain and operate the Waste Reduction Registry ("the Registry").  The Minister may appoint an administrator of the Authority if it is in the public interest to do so because a listed condition is satisfied.

Part III (Responsibility of Producers and Intermediaries) states that the purpose of the Part is to make producers responsible for waste derived from their products.  The Part provides that producers are responsible for compliance with waste reduction standards and service standards that relate to designated wastes that are derived from the producers' products.  Where producers deal with producer-controlled intermediaries who broker, arrange for or facilitate the provision of waste reduction services for them, the intermediaries are also responsible for compliance.  Producers and their intermediaries are required to enter into service agreements containing mandatory provisions.

Producers and intermediaries are required to register in the Registry, and municipalities may do so.

Producers are also required to collect from registered municipalities designated wastes that are derived from the producers' products, and to reimburse registered municipalities for services provided in relation to the designated wastes.  The amount reimbursed may be determined by agreement between the producer and the municipality, by a compensation formula established by the Authority, or (if an Act or regulation requires the municipality to collect and process the waste) by regulation made by the Lieutenant Governor in Council.

Part IV (Integrated Pricing) states that the purposes of the Part are to promote the reduction of environmental impacts by requiring the integration of the environmental protection costs of products when the products are sold, and to ensure that purchasers of products are provided with accurate information about the environmental protection costs of the products.  A seller who recovers environmental protection costs in connection with the sale of a product must include them in the price of the product and show an all-in price in any advertisement.  A seller who also shows the amount of recovered environmental costs must indicate the name and amount of each cost.  False, misleading or deceptive representations relating to the names and amounts of recovered environmental costs are prohibited.

Part V (Enforcement) deals with powers of inspection and seizure, compliance orders and orders imposing administrative penalties.  Compliance orders (after review by the Registrar in certain circumstances) and administrative penalty orders may be appealed to the Environmental Review Tribunal.  Contraventions of listed provisions of the Act or of prescribed provisions of the regulations are offences punishable, on conviction, by fines.

Part VI (Regulations) contains general regulation-making provisions as well as regulation-making provisions relating to Parts II, III and V.

Part VII (Existing Waste Diversion Programs and Existing Industry Funding Organizations) states that the purpose of the Part is to promote the reduction, reuse and recycling of Part VII designated waste, and to provide for the operation of waste diversion programs that were approved under the old Act.  The Part continues those programs as existing waste diversion programs.  The Part also contains regulation-making provisions to continue an industry funding organization under the old Act and to designate the organization as the existing industry funding organization for an existing waste diversion program.  The Authority is required to operate the existing waste diversion programs in accordance with the Part.  The board of directors of the Authority may appoint an administrator of an existing industry funding organization if it is in the public interest to do so because a listed condition is satisfied.  Those conditions include where the appointment is necessary to facilitate the wind-up of the existing industry funding organization or an existing waste diversion program.

The Part contains general regulation-making provisions relating to it.  Regulations made under the old Act remain in force and are deemed to be regulations made under the Part. Contraventions of the Part, the regulations made under it or the rules made by an existing industry funding organization are offences punishable, on conviction, by fines."

Waste Diversion Ontario not succeeding

The Waste Reduction Strategy recognizes that current programs are unpopular and not working well:

"Challenges with the existing legislative framework are impeding progress

Sector recycling programs under the Waste Diversion Act cover just 14% of Ontario's wastes. Under the existing Waste Diversion Act, producers of designated materials are currently required to pay fees to a collective stewardship agency known as an Industry Funding Organization (IFO).

  • The mandatory requirement to pay fees to an IFO makes it difficult for individual producers to take action under the Waste Diversion Act.
  • Because only a single IFO exists for each recycling program, IFOs disrupt the marketplace and stifle innovation and healthy competition.
  • Uniform fee structures associated with IFOs also make it easier to pass recycling costs directly to consumers, reducing producer responsibility for waste diversion and doing little to encourage innovation in product design.

Roles and responsibilities under the present Waste Diversion Act are unclear.

  • Waste Diversion Ontario (WDO) was established under the Waste Diversion Act to oversee the development, implementation and operation of recycling.
  • WDO often plays a dual role as both the developer and overseer of recycling programs. This lack of clarity contributes to strained relationships among stakeholders involved in the delivery of recycling programs and hampers efforts  to adapt to changing circumstances.

There is also a lack of compliance and enforcement tools to ensure accountability for recycling results.

The government has limited powers to set and enforce recycling results, and to require a course correction when needed.

Lack of innovation and need for strengthened consumer protection

Individual producer responsibility is about more than making producers of product waste responsible for recycling costs – it is also about encouraging producers to develop products that are designed, manufactured and distributed in ways that reduce their impact on the environment. When each individual producer shoulders the full responsibility to divert their products at end-of-life, these costs are included in the price of their products, much the same way that other costs like rent and labour ...

Including diversion costs in the price of a product harnesses the competitive nature that makes producers compete based on the price of their product..."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dianne Saxe
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