Canada: One Person's Trash Is The New Government's Treasure: The Ontario Government Stays The Course On Waste Management In The "Made-In-Ontario Environment Plan"

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

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

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

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

1.Organic Waste and Landfills

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

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

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

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

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

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

2. Excess Soil

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

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

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

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

3. Producer responsibility

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

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

4. Funding for clean tech and waste management innovations

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

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

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

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

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

Conclusions

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

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

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

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

Read the original article on GowlingWLG.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Osler, Hoskin & Harcourt LLP
Willms & Shier Environmental Lawyers LLP
Siskinds LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Osler, Hoskin & Harcourt LLP
Willms & Shier Environmental Lawyers LLP
Siskinds LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions