Introduction

On November 26, 2015, Ontario’s Minister of the Environment and Climate Change (MOECC) posted proposed new waste reduction legislation on the Environmental Registry (EBR #012-5832) for public comment.  In its current form, the new legislation would dramatically overhaul the province’s recycling regime.  Entitled the Waste-Free Ontario Act, Bill 151 proposes to enact the Resource Recovery and Circular Economy Act and the Waste Diversion Transition Act.  Together, these statues will replace the current Waste Diversion Act, 2002 (which utilizes industry funding organizations (IFOs) and industry stewardship plans) and transition to what Ontario believes will be a more robust producer responsibility regime.

Ontario’s existing waste diversion regime has come under increasing criticism in recent years, with critics pointing to stalled recycling rates and unpopular “eco-fees” on consumer products.  Bill 151 is not the government’s first attempt to revise the existing regime – a previous attempt in 2013 (see our July 24, 2013 Osler Update on Bill 91)died on the order paper when a provincial election was called in the spring of 2014.

Along with the proposed legislation, Ontario has also posted on the Environmental Registry its draft Strategy for a Waste Free Ontario: Building The Circular Economy, which explains and illustrates how the new legislation may be applied.

Both Bill 151 and the strategy document are open for public comment until February 24, 2016.

Key features of Ontario's new waste diversion regime

The proposed Waste Diversion Transition Act would replace the existing Waste Diversion Act, 2002 until such time as existing waste diversion programs and their related industry funding organizations are wound up and/or transitioned to the new producer responsibility framework, described below. The existing programs for Blue Box, used tires, waste electronics, and municipal hazardous/special waste (e.g., paints, solvents, batteries, fertilizers, etc.) will be transitioned under this Act.

The proposed legislation will empower the Minister to direct the relevant IFO to prepare a wind up plan, and will further empower a new Resource Productivity and Recovery Authority (RPRA) to approve this plan.  Once approved, the wind up plan must be implemented by the IFO.

The draft Resource Recovery and Circular Economy Act proposes to:

  • borrowing from the Planning Act, establish a long list of “provincial interests,” and require both statutory decision makers under this and other statutes, as well regulated parties under this statute, to “have regard to” these provincial interests
  • obligate the Minister to finalize the draft strategy document as an overarching statutory policy that would require review every ten years
  • further, borrowing from the Planning Act, enable the provincial government to issue policy statements in respect of resource recovery and waste reduction, and require the same set of statutory decision makers and regulated parties to exercise their powers and carry out their obligations “consistent with” the policies
  • make “responsible persons” (brand holders and others with commercial connections to a product, such as first importers and e-tailers) accountable for recovering resources and reducing waste associated with their products and packaging
  • replace Waste Diversion Ontario (established under the Waste Diversion Act, 2002) with the RPRA which will have delegated authority for overseeing the new regime, and carrying out compliance and enforcement

A draft Strategy for a Waste Free Ontario: Building The Circular Economy (the Strategy) was posted on the Environmental Registry on November 26 with Bill 151, and sets out the province’s key objectives with respect to waste recovery, which include using resources more effectively to reduce waste, promoting a more efficient recycling system, and creating conditions to support sustainable end-markets for recovered materials.  To achieve these objectives, the draft Strategy sets out an action plan that prioritizes the following actions:

  • Recognize the provincial interest in achieving specific resource recovery and waste reduction outcomes, and develop policy statements to co-ordinate decision-making across multiple sectors and actors, with the first such policy statement to be developed within the first year should the legislation pass.
  • Expand producer responsibility by placing full responsibility on producers to be accountable for their products and packaging at end of life. This producer responsibility framework would include recovery targets, standards and reporting requirements applicable to all producers, but would provide producers with the flexibility to decide how to meet the requirements, whether individually or collectively by pooling efforts intra- and inter-provincially. However, producers would not be able to transfer their liability. The RPRA would be empowered to monitor this new producer responsibility regime.
  • Divert more waste from disposal by collecting data, developing better metrics and putting performance measures in place, targeting areas for greater diversion through regulations designating new products and packaging, enhancing requirements for waste generators and service providers, developing an Organics Action Plan to reduce the volume of organic material going to landfill, and implementing disposal bans and additional plans for landfill use and management.
  • Help people to reduce, reuse and recycle by increasing awareness or and participation in diversion activities through education and promotion.
  • Stimulate markets for recovered materials by implementing modern environmental standards and promoting best practices in green procurement.

Analysis

A notable feature of both the proposed Waste Diversion Transition Act and the Resource Recovery and Circular Economy Act, is that they are largely skeletal statutes which, apart from their inspection, compliance and offence provisions, relegate virtually all of the real, substantive details on how the Strategy will be accomplished, to regulations.  Those draft regulations have not been posted on the Environmental Registry, but will be the key to evaluating the success, effectiveness, viability and commercial fairness of the new regime.

Legislative Timeline and Comment Period

The Ontario Legislature reconvenes in mid-February 2016, which allows some time for stakeholder consultation.  As noted, the MOECC has posted the Waste-Free Ontario Act and the draft Strategy on the Environmental Registry for public and stakeholder comment.  The 90-day comment period closes on February 24, 2016.