On November 25, 2009, the Government of Quebec published its Draft Quebec Residual Materials Management Policy and its Five-Year Action Plan, whose main goal is to make end waste the only residual material sent for disposal in Quebec.

In the wake of the draft policy, three draft regulations were also published. A public consultation was held seeking submissions on the draft regulations; that exercise ended on January 24, 2010. The deadline for submitting comments on the draft policy is February 23, 2010.

DRAFT REGULATION RESPECTING THE RECOVERY AND RECLAMATION OF PRODUCTS BY ENTERPRISES

According to the Government, this draft regulation is aimed primarily at reducing the quantity of residual materials to be eliminated by making the “producers” of certain consumer goods responsible for their recovery and businesses responsible for the costs related to the recovery and reclamation of certain products that they market. A similar scheme was already in place in Quebec for paints and used oils. The draft regulation proposes to apply the “extended producer responsibility” principle to other categories of products and to bring all the products under a single regulation.

Products Covered

The following are the new products covered by the regulation:  

  • rechargeable or single use cells and batteries except vehicle and industrial batteries;  
  • mercury lamps (fluorescent tubes, compact fluorescent lamps); and  
  • electronic products.

Businesses Affected

As currently worded, the draft regulation applies to every enterprise that markets a product covered by the regulation under a brand, a name or a distinguishing guise owned or used by the enterprise, including any enterprise that markets a product a component of which is a product covered by the regulation.

However, the obligations under the regulation when enacted will apply to the enterprise that acts as the first supplier of the product in Quebec if (i) the enterprise to which the regulation applies has no domicile or establishment in Quebec, (ii) the enterprise that markets the product acquires it outside Quebec, or (iii) the product does not bear any brand, name or distinguishing guise.

Implementation of a Recovery and Reclamation Program

The draft regulation obliges the enterprises to which it applies to either:  

  1. introduce an individual recovery and reclamation program that satisfies the requirements of the regulation, or  
  2. join a common recovery and reclamation program with a certified body whose main function is to implement a recovery and reclamation system for discarded products.

Collection Points and Collection Services

In its individual program, the enterprise affected must set up collection points whose number, type and location satisfy the requirements of the draft regulation.

Costs of Transport

The draft regulation further provides that where marketing is exclusively for industrial, commercial or institutional customers for their own consumption, such as, for example, in the case of distributors and wholesalers of electronic products for companies, such distributors and wholesalers are not required to set up a system of collection points if they offer a collection service to such customers. However, the collection services offered by such enterprises must be free of charge. The impact of such a requirement on the operations of certain distributors of electronic products will therefore have to be assessed carefully.

Annual Report and Penalties

The draft regulation specifies that the enterprises concerned must submit to the Minister annually a report assessing the performance of their program, which should allow them to achieve the annual rates of recovery prescribed in the regulation.

If the minimum rate of recovery fixed by the Government is not attained, the enterprise will be required to make a contribution to the Green Fund of an amount equal to the difference between the number of units of the products sold by the enterprise and the number recovered, multiplied by the unit cost prescribed in the regulation for the product, for example, $20 for a desktop computer and $75 for a television set.

Lastly, the draft regulation prescribes a fine of between $5,000 and $250,000 for any enterprise that fails to implement a recovery and reclamation program, with the fine being doubled for second or subsequent offences.

DRAFT REGULATION RESPECTING FINANCIAL GUARANTEES PAYABLE FOR THE OPERATION OF AN ORGANIC MATTER RECLAMATION FACILITY

The second draft regulation requires financial guarantees to be provided by operators of organic matter reclamation facilities. The reclamation facilities to which the regulation applies are those where sorting, transfer, storage or treatment operations are carried out on organic matter for the purpose of their reclamation.

The proposed regulation will apply to both new and existing reclamation facilities, except for those that are not obliged to obtain a certificate of authorization under section 22 of the Environment Quality Act, R.S.Q., c. Q-2 (the “EQA”).

DRAFT REGULATION RESPECTING THE CHARGES PAYABLE FOR THE DISPOSAL OF RESIDUAL MATERIALS

The purpose of the third draft regulation is to establish additional charges for a period of five years for the disposal of residual materials in certain disposal sites, specifically including engineered landfills and construction or demolition waste landfills. These temporary charges are $9.50 for every tonne of residual materials accepted for disposal.

IN THE NEAR FUTURE: A BILL PROVIDING FOR COMPENSATION FOR MUNICIPAL RECOVERY SERVICES

When the draft policy was introduced, the Minister of Sustainable Development, Environment and Parks, Line Beauchamp, also announced that she would be tabling a bill in the National Assembly which will provide for the determination of the net costs to be paid by enterprises for municipal recovery and reclamation services and establish the compensation level at 100%. It should be borne in mind that the anticipated bill is part of the plan established under sections 53.31.1 and following of the EQA to compensate municipalities for part of the costs they incur in providing services that ensure the recovery and reclamation of residual materials. Éco Entreprises Québec (“EEQ”), the certified body for the classes of residual materials called “containers and packaging” and “printed matter”, is responsible for collecting the contributions required to pay the compensation that the enterprises in question have to pay to the municipalities. The contributions must be established on the basis of a fee schedule approved by the Government of Quebec. However, the 2007 Schedule of contributions for “Containers and Packaging” and “Printed Matter” Classes (the “2007 Schedule”) established by EEQ and approved on March 12, 2009 by the Government of Quebec1 caused some consternation among certain EEQ member firms. On the one hand, EEQ had some difficulty determining the amount of the net costs payable to the municipalities because ultimately the figures were dependent on negotiations with the municipalities and, moreover, the method used by EEQ to establish the 2007 Schedule troubled some members. It is to be hoped that the bill announced by the Minister will address at least some of these concerns.