The Waste Diversion Act, 2002
In June 2002, the Ontario government enacted the Waste Diversion Act (WDA) to “promote the reduction, reuse and recycling of waste and to provide for the development, implementation and operation of waste diversion programs.” The Minister of the Environment stated that the WDA “brings Ontario a step closer to meeting its waste reduction goal . . . of 50 per cent.” Under the new Act, a regulation is first made designating a waste, and then a waste diversion program can be developed that sets diversion targets and provides sustainable funding. In September 2002, the minister designated Blue Box waste as the target of the first waste diversion program under the new Act.
Waste diversion programs for used oil and used tires were designated in March 2003, to be followed over the next two years by organics, electrical components, batteries, fluorescent lighting tubes, pharmaceuticals, and household hazardous waste such as paint cans.
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Background
In 1994, the province passed significant new regulations on waste diversion under the Environmental Protection Act (EPA). Ontario Regulation 101/94 formed the basis for the current Blue Box program, in which municipalities with a population of more than 5,000 are required to collect newsprint; food and beverage containers made from aluminum, steel, polyethylene terephthalate or glass; and wastes such as aluminum foil and fine paper.
Waste Diversion Act, 2002
The Waste Diversion Act, 2002, establishes Waste Diversion Ontario (WDO), as a permanent non-government corporation. WDO includes representatives from the Association of Municipalities of Ontario, Corporations Supporting Recycling, Retail Council of Canada, Brewers of Ontario, the Canadian Manufacturers of Chemical Specialties Association, the Canadian Paint and Coatings Association, the Canadian Newspaper Association, the Liquor Control Board of Ontario, and the Recycling Council of Ontario. The LCBO has agreed to contribute $1 million to assist with the initial setup of Waste Diversion Ontario. Each year, the WDO is required to submit a business plan and a report to the Minister of the Environment describing the effectiveness of each waste diversion program.
The Waste Diversion Act includes several provisions regarding public notification and involvement. In particular, s.26(4) of the WDA requires the ministry to post waste diversion programs on the Environmental Registry for public comment before a final decision is made, in the same way that regulations are posted under other Acts. The WDA also requires that annual reports and WDO business plans be made available to the public.
The Blue Box Program Plan
Over the years, municipalities have not been able to fund their Blue Box programs fully through sales of recyclable materials. With the exception of aluminum, municipal costs for recycling Blue Box materials have exceeded revenues. Since municipalities have had to pay for this program through property taxes, MOE designated Blue Box waste first.
Under the WDA, companies that have a commercial connection to a designated waste are called “stewards” and are joined together in an industry funding organization (IFO). Each IFO is responsible for developing and operating a waste diversion program and funding it with fees charged to its stewards based on the amount of waste produced from their products. The IFO for Blue Box waste is called Stewardship Ontario and is made up of industry representatives of sectors that introduce packaging and printed paper into the Ontario consumer market.
In early 2003, Stewardship Ontario drafted the Blue Box Program Plan (BBPP). The WDA requires that the BBPP include diversion targets. The program may also include activities to reduce, reuse and recycle the designated waste; research and development related to the management of the designated waste; activities to develop and promote products that result from the program; and educational and public awareness activities. However, the BBPP must not promote burning or landfilling of waste, or application to land.
Under the WDA, Stewardship Ontario is accountable for 50 per cent of the net costs associated with Blue Box recyclable materials, and municipalities are accountable for the remaining 50 per cent. Municipalities will continue to use property taxes to fund the full costs of residential waste that is landfilled. The draft BBPP reports that in 2001 approximately 45 per cent of eligible recyclable material was collected by the Blue Box program and the remaining 55 per cent was disposed of by the householder as garbage to be landfilled.
Municipalities will also receive funding from the LCBO — $5 million annually for the years 2003-2006 – to pay for the cost of recycling alcohol beverage glass. The newspaper industry will spend $1.3 million of their total stewardship fees as newspaper advertising to promote the program.
During the Registry comment period on the new Act, some industry representatives were concerned that the new Blue Box Program Plan could actually result in less recycling if companies substituted non-recyclable materials in order to avoid paying stewardship fees. To discourage this practice, O. Reg. 273/2002 under the WDA defines as waste any of the following materials or any combination of them: glass, metal, paper, plastic or textiles – even if they are not defined as Blue Box waste by O. Reg. 101/94 under the EPA. Switching to a different type of plastic — for example, one not covered by O. Reg. 101/94 and thus not picked up in a municipality’s Blue Box program – will not let a company avoid paying stewardship fees based on the amount of waste it produces.
Stewardship Ontario must also establish an Effectiveness and Efficiency Program to fund initiatives that reduce BBPP costs and increase revenue by encouraging industry to develop new markets for recyclables, such as the use of glass as an aggregate (see pages 33-34 on recycling aggregates in road construction).
Public Involvement in the Blue Box Program Plan
Stewardship Ontario has made considerable efforts to ensure that industry stake- holders and municipalities were involved in the preparation of the Blue Box Program Plan through its Web site and workshops. Although the broader public has also had a number of opportunities to participate, the deadlines for the preparation of the BBPP imposed by MOE may have limited the public’s ability to become more directly involved. The Recycling Council of Ontario also held six workshops involving the general public; however, details regarding the proposed BBPP were not available for comment during the sessions. Moreover, Waste Diversion Ontario and IFOs such as Stewardship Ontario are not required by the WDA to post waste diversion programs on the Environmental Registry. Only after they are submitted to MOE for approval are the waste diversion programs posted by the ministry on the Registry for public review and comment.
In March 2003, MOE posted the Blue Box Program Plan prepared by Stewardship Ontario on the Environmental Registry.
ECO Comment
The Waste Diversion Act, 2002, has the potential to reinvigorate waste diversion efforts in Ontario at a time when some municipalities are cutting back on their programs. The Act is the first substantive regulatory change affecting waste diversion since 1994, and is expected to provide the regulatory context for waste diversion initiatives for the foreseeable future. The WDA provides direction to industry, municipalities and consumers by clarifying roles and responsibilities, and by providing a management infrastructure to address issues and develop plans and targets. The ECO is encouraged that the government intends to designate all of the wastes identified by the ministry within two years.
However, the government has distanced itself from the often-contentious issue of waste diversion by moving accountability for these programs to Waste Diversion Ontario. The WDA also protects the government from lawsuits from the public for actions taken by the WDO. The ECO is concerned the public’s right to hold government accountable for waste diversion decisions is thus limited.
On June 20, 2003, MOE prescribed the WDA under the EBR so that all regulations made under the Act would be subject to the notice and comment provisions in s.16 of the EBR. The ECO supports this decision, but believes that the WDA should also be prescribed for reviews and investigations. Although the minister is required to review the Act every five years, to notify the public of the review, and to publish a report regarding the review, there is no requirement to consider comments from the public as the MOE is required to do by the EBR. The ECO believes that the five-year review report should be posted on the Registry as a proposal to give the public the opportunity to comment. Prescribing the Act for review and investigations and prescribing the five-year review report would improve transparency and provide greater opportunity for the public to be involved.
In addition, the ECO is concerned that waste diversion programs will not be posted on the Registry until after they are submitted to the minister. As a result, the general public is less likely to be aware of opportunities to participate in decisions about waste diversion programs while they are being developed. It is unclear what effect comments from the public could have at a later stage. The ECO expects to review the minister’s decisions on waste diversion programs in our next annual report. The ECO is encouraged that funds will be available through the Stewardship Ontario’s Effectiveness and Efficiency Program to improve municipal recycling systems and to research and develop markets for recyclables. While recycling efforts should result in improved waste diversion rates, the ECO believes that reduction and reuse approaches will also be key to meeting ambitious diversion targets. Complex issues remain to be resolved and considerable work will be required if significant improvements in waste diversion rates are to be achieved.
| This is an article from the 2002/03 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2003. "Waste Diversion in Ontario." Thinking Beyond the Near and Now, ECO Annual Report, 2002-03. Toronto, ON : Environmental Commissioner of Ontario. 77-80.
