Copyright 2009, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law/CleanTech, March 2009
On April 1, 2009, Ontario will follow in the footsteps of Alberta, British Columbia, Nova Scotia and Saskatchewan and implement a waste diversion program for designated electronic products that were sold or distributed in or into the province. The purpose of waste diversion programs (also known as product stewardship programs) is to transfer the cost burden for the management of waste electronics from municipalities that manage waste collection programs to the companies that produce, sell or distribute the designated products. Generally, companies that sell designated products in or into a province or that are commercially connected to the designated products (e.g., through brand ownership) must register with, report to and pay a per-item fee to the industry-led organization that has established the applicable product stewardship or diversion program.
The Ontario Waste Electrical and Electronic Equipment Regulation prescribes waste electrical and electronic equipment (WEEE) as designated waste for the purposes of the Waste Diversion Act (the Act) and designates Ontario Electronics Stewardship (OES) as an industry-led organization responsible for the development and implementation of a waste diversion program for WEEE in Ontario. OES has received approval from the Minister of the Environment for Phase 1 of its WEEE Program which will commence on April 1, 2009. The Waste Diversion Act also permits the establishment of separate industry stewardship plans, with approval from the Ministry of the Environment. However, until approval is obtained, a steward must comply with the OES WEEE Program.
Phase 1 products include televisions, desktop computers, portable computers, computer peripherals (e.g., mouse, keyboard, hard drive, optical drive), monitors, printers and fax machines. A company's legal obligation to comply with the WEEE Program arises only after notification from OES that a company is a potential "steward" of designated products. "Stewards" of Phase 1 products are required to register with OES, report the type and quantity of WEEE supplied into Ontario on a monthly basis, and pay a monthly unit fee to OES. Regardless of the date of notification, a company that meets the definition of a "steward" will be obligated to comply with the WEEE Program from the program commencement date on April 1, 2009.
A "steward" is the company, organization or individual who is resident in Ontario with the closest commercial connection to the WEEE that is sold in or into Ontario. The broad definition includes owners and licensees of a brand of WEEE, first importers of branded WEEE (if a brand owner is not resident in Ontario), franchisors of branded WEEE and manufactures of unbranded WEEE. A steward is resident in Ontario if it has a permanent establishment in Ontario (e.g., branch, factory, warehouse, office, agency or other fixed place of business) and has employees or agents with general authority to contract on the company's behalf or a stock of inventory owned by the company from which the agent or employee regularly fills orders.
OES has established useful guidelines to assist companies in determining if they are "stewards" and, if so, how to comply with the OES rules. Click here to view the guidelines and other program materials which are available on the OES website.
OES is developing Phase 2 of the WEEE Program with consultation from stakeholders and expects to submit the program for approval in July 2009. The proposed list of Phase 2 products includes information technology equipment, telecommunications equipment (including cell phones and handheld devices) and imaging and audio/visual equipment.
In 2005, by operation of the Electronics Designation Regulation, Alberta designated a broad definition of "electronics" as designated material that is subject to management by the Alberta Recycling Management Authority (ARMA). "Suppliers" of all designated electronic products must register with ARMA and suppliers of a subset of designated electronics must report to and pay an Advance Disposal Surcharge (ADS) to ARMA on a monthly basis.
A "supplier" includes a manufacturer, distributor, wholesaler or retailer that supplies new electronics in or into Alberta. A supplier of televisions, desktop computers (including related computer peripherals sold with the computer), printers, monitors and laptops is obligated to levy and collect the ADS from the person to whom the product is sold and remit this amount to ARMA.
For further information on registration, reporting and fee payment available on the ARMA website, click here. Alberta is the only province that requires a company that is otherwise not obligated to pay a fee to register with the industry-organization that operates the industry-operated recycling program.
The British Columbia Recycling Regulation sets out three groups of electronics that are or will be subject to product stewardship on different commencement dates. "Producers" of the designated electronics must participate in an approved product stewardship plan by the date imposed by the regulation.
The first phase of designated products was implemented in August 2007 and includes televisions, computers, computer monitors, computer peripherals and printers. The regulation calls for the second phase of product stewardship to be implemented on July 1, 2010 and is intended to capture information technology and telecommunications equipment, small appliances, audio/visual playback and recording systems, lighting equipment, toys, leisure and sports equipment, and monitoring and control instruments. The final phase is expected to be implemented in 2012 and includes large appliances, electronic tools, electronic cash dispensing appliances, and electronic medical devices.
"Producers" are defined to include i) the manufacturer or seller of the designated product in or into British Columbia; ii) if subparagraph (i) does not apply, the owner licensee of a trade-mark under which the product is sold; or (iii) if subparagraphs (i) and (ii) do not apply, the importer of the product in or into British Columbia.
British Columbia has approved two industry-led product stewardship plans developed by the Electronics Stewardship Association of British Columbia (ESABC) and Western Canada Computer Industry Association (WCCIA), respectively. Producers can register with one of these plans or develop their own plan for approval by the Ministry of Environment.
The ESABC and WCCIA plans have the same fee schedule for Phase 1 products and require producers to report the number of items sold (including zero sales) and pay fees on a monthly basis. For further information about the ESABC program, click here. For further information about the WCCIA program, click here.
Under the Nova Scotia Electronic Products Stewardship Regulation, every "brand owner" of designated electronic products must participate in an approved product stewardship program. The regulation designated products in two phases with implementation dates of February 1, 2008 for Phase 1 products and February 2, 2009 for Phase 2 products. Nova Scotia is the only province to have implemented product stewardship for Phase 2 products at this time.
Phase 1 products include desktop computers, portable computers, computer peripherals (mouse, keyboard, hard drive, optical drive), televisions and printers. Phase 2 products include computer scanners, audio/ visual playback and recording systems, home theatre systems, vehicle audio/visual systems, telephones and fax machines, cell phones and other wireless devices.
"Brand owners" are defined broadly and would include manufacturers, first importers, distributors, retailers, Internet and catalogue sellers, computer assemblers, value-added resellers, licensees and owners of a brand of designated product that is sold in or into Nova Scotia.
Atlantic Canada Electronics Stewardship (ACES) operates an approved product stewardship program for Nova Scotia. Brand owners must register with ACES, track the Environmental Handling Fee (EHF) for each product and provide a monthly report and fee payment to ACES. However, if a brand owner sells a designated electronic product to an entity that is already a registered "remitter" under ACES (such as a multi-provincial retailer), the brand owner is not required to pay or submit the EHF or report to ACES for such item.
For further information about the ACES program, click here.
Pursuant to the Saskatchewan Waste Electronic Equipment Regulations, "first sellers" of designated electronic products must operate or participate in an approved product management plan. As of February 1, 2007, designated products include desktop computers, laptops, computer peripherals, monitors, televisions and printers.
"First sellers" are defined to include manufacturers, distributors and owners of intellectual property rights in a brand of designated product that is sold in or into Saskatchewan; retailers that sell designated products in Saskatchewan; and importers of designated products into Saskatchewan.
Saskatchewan Waste Electrical Equipment Program (SWEEP) operates an approved product management plan for designated electronic equipment. "First sellers" are required to register with SWEEP, track the EHF for each product and provide a monthly report and fee payment to SWEEP. Similar to the Nova Scotia program, if a first seller sells a designated product to an entity that is already a registered "member" under SWEEP (such as a multi-provincial retailer), it is not required to pay or submit the EHF or report to SWEEP for such item.
For further information about the SWEEP program, click here.
Manitoba has not passed legislation that requires electronic products to be subject to a product steward-ship plan. However, in 2007, Manitoba Conservation published a draft regulation for electronic waste under the Waste Reduction and Prevention Act which would designate certain electronics and require a product stewardship plan to be implemented by a person who supplies the product in or into Manitoba. The proposed legislation would result in a program that is similar to the programs in Ontario, B.C., Saskatchewan and Nova Scotia. To date, this regulation has not been adopted.
The Clean Environment Act and Designated Materials Regulation empowers a Multi-Material Stewardship Board to oversee industry-led stewardship programs in the province which, in the future, may include electronics.
New Brunswick has not, however, designated any electronic products as being subject to a product stewardship program.
Québec has not yet implemented a program to address electronic waste. However, in March 2008, the Ministry of Sustainable Development, Environment and Parks published a policy paper which set out a proposal for extended producer responsibility for "producers" of electronics in Québec. The definition of "producer" would include owners, holders or users of intellectual property or first suppliers. To date, Québec has not enacted any legislation to give effect to this policy.
There is no e-waste legislation or programs in place or, to our knowledge, contemplated in Newfoundland and Labrador, the Northwest Territories, Nunavut, Prince Edward Island and Yukon.
The Canadian examples of e-waste diversion programs are similar in concept to international e-waste regimes. However, many regimes differ (internationally and within Canada) in the degree of responsibility placed on producers and manufacturers for the development and funding of diversion programs.
In 2004, California passed the Electronic Waste Recycling Act of 2003 which obligates retailers to impose a fee on consumers (including businesses) who purchase a new or refurbished video display device with a screen size of greater than 4 inches. Included products are televisions, computer monitors, laptops, cathode ray tube devices and portable DVD players.
On an annual basis, manufacturers of covered electronic devices are required to report the number of devices sold in California, reductions in the use of hazardous substances, increases in the use of recycled material and any efforts the manufacturer has made to design products for better recycling. However, the cost and development of disposal and recycling programs are not directly imposed on manufacturers.
EU Directive 2002/96/EC, the EU Waste Electrical and Electronic Equipment Directive (WEEE Directive), became law in 2003 and focuses on producer responsibility. It imposes responsibility for financing the collection, disposal and recycling of broad categories of waste electronic products on the manufacturers of such products. The WEEE Directive also encourages manufacturers to take into account recycling and recovery of hazardous materials in the design of products. The WEEE Directive is currently under review by the EU due to administrative difficulties with implementation across Member States and to revise the waste reduction targets. However, producer responsibility remains a central theme in the proposed revisions.
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