On November 30, 2016, the Government of Ontario proclaimed the Resource Recovery and Circular Economy Act, 2016 (RRCEA) and the Waste Diversion Transition Act, 2016 (WDTA), enacted by the Waste-Free Ontario Act, 2016 (WFOA).
This was a long-awaited action by the Government of Ontario and sets into motion a series of activities that will transition governance of provincial waste reduction and resource recovery requirements from the current system as dictated by the Waste Diversion Act, 2002 (WDA) to a new system as dictated by the Resource Recovery and Circular Economy Act, 2016.
A lot of work is required to complete this transition. Below is an analysis of what Sussex anticipates will be some of the upcoming activities associated with this transition and what affected stakeholders should be preparing for in the coming weeks, months, and years. These activities include:
The RRCEA is the legislative framework for the “new world” of resource recovery and waste reduction in Ontario. The RRCEA replaces the long-standing Waste Diversion Act, 2002 which was repealed when the WFOA was proclaimed.
The RRCEA creates a system of full producer responsibility whereby producers, Brand Holders, or others with a commercial connection are environmentally and financially accountable for the responsible resource recovery and end-of-life management of their products and packaging. The province will designate waste materials to be managed and establish accompanying requirements, targets, and standards; however, producers will have flexibility in determining how they will fulfill these obligations – either individually or collectively.
The RRCEA also establishes the Resource Productivity and Recovery Authority (RPRA or the Authority). The Authority has three primary functions:
The Authority replaces Waste Diversion Ontario (WDO) as the oversight agency.
The WDTA is the mechanism for moving from the old regime (WDA) to the new regime (RRCEA). The WDTA allows for the current waste diversion programs and industry funding organizations (IFOs) to continue operating until a time in which they are wound up and transition to the RRCEA is complete.
Now that the legislation is in force, there are a number of upcoming activities that the MOECC and the Authority will undertake. Industry and other stakeholders can anticipate a lot of movement and extensive consultation. A short summary of these items are described below.
The MOECC released a draft Strategy to accompany the legislation in November 2015, and it was published on the Environmental Registry (EBR) for a public comment period concluding in February 2016. Since that time, the MOECC has revised and updated the Strategy, taking into consideration the comments they received from stakeholders.
Per the RRCEA, the government must table a final Strategy document within 90 days of proclamation. We anticipate the next iteration of the draft Strategy will be published to the EBR shortly, followed by another public comment period. The government then has until February 28, 2017 to finalize and publish the document.
As the new organization charged with oversight, compliance, and enforcement, the Authority will enter into an agreement with the Minister of Environment and Climate Change with respect to the Authority’s objects and activities. This document will detail the Authority’s governance structure and operations, and will be based largely on the Operating Agreement that existed between WDO and the Minister. The Operating Agreement is where details pertaining to fee setting criteria and complaint mechanisms may be found.
In the coming weeks, a draft transitional Operating Agreement will be posted to the EBR for public review and consultation.
When the WFOA was proclaimed, WDO’s Board of Directors was dissolved and the Authority’s new Board of Directors was established. The Authority’s initial Board consists of one Chair and four Directors – all of whom were appointed by the Minister. It will be the initial Board’s responsibility to elect an additional six members, resulting in a fully constituted Board. It is anticipated that this process will happen over the course of 2017.
The Authority’s Board is also responsible for appointing a Registrar and possibly a Deputy Registrar. The Registrar’s primary function will be to establish, maintain, and operate an electronic public registry. The Registry will be the platform in which parties with resource recovery responsibilities under the RRCEA will submit required information about their activities to the Authority.
In addition to the Board, the Authority will have full-time employees running day-to-day operations. Staff from WDO have transitioned to the Authority. It is not clear at this time if roles/responsibilities will remain the same, or how this might change given the Authority’s differing mandate from WDO. One change will be the introduction of Inspectors. With the Authority’s greater compliance and enforcement provisions, Inspectors will need to be hired.
The RRCEA provides the legislative framework for Ontario’s new resource recovery system, but the details are still to be determined via the regulations. The regulations will specify things such as designated waste materials, targets, standards, and other requirements that Brand Holders/responsible parties will have to adhere to in fulfilling their obligation.
The MOECC will engage in consultation with all affected stakeholders, including industry, environmental groups, and municipalities. The timing and the format of consultations is still to be determined.
As per the WDTA, the Minister leads transition by providing an IFO written direction to begin winding up a waste diversion program in full or in respect of a designated waste. Once written direction has been given, the IFO must prepare a wind-up plan and submit it to the Authority for approval.
It is still to be determined which IFO and which waste diversion program will receive direction first from the Minister to initiate the process of transition (i.e. developing a wind-up plan). It is possible that the Minister may provide direction to more than one IFO in respect of more than one waste diversion program at the same time. We believe a number of those decisions will also have to do with staff capacity and resources at the MOECC.
It should also be noted that just because a program is directed to start the wind-up process first, does not necessarily mean it will be the first program to fully transition to the new system. Some programs are expected to take longer to wind-up/transition than others, so getting started early may be a factor in determining which will receive the Minister’s direction first. For example, it is expected that the Blue Box program could take upwards of five years to transition.
As is required by the WDTA, each IFO will conduct consultation with relevant stakeholders, including municipalities, stewards, and any other persons considered to be affected regarding the development of their wind-up plan(s).
Once an IFO has transitioned its waste diversion program(s) the organization will be directed by the Minister to create a plan for winding itself up.
The RRCEA allows the Minister, by way of Cabinet approval, to issue policy statements for the purpose of furthering the provincial interest as it pertains to resource recovery, waste reduction, and building the circular economy. A policy statement must begin development before the first anniversary of the RRCEA coming into force. In developing a policy statement, the Minister must consult, in a manner he/she considers appropriate, with a variety of stakeholders including:
During the legislative development process, it was conveyed by the MOECC to stakeholders that policy statements are more of a “soft tool” to direct or encourage certain action in contrast to the “hard tool” of regulation. Regardless, obligated parties will have a responsibility to adhere to policy statements and can face penalty if they are found to be operating in a way that is not consistent with the policy statement.
As identified in the draft Strategy, a targeted area for greater diversion is organic waste. The MOECC is proposing the development of an Organics Action Plan that would align with the government’s climate change strategy to reduce the amount of organic waste going to landfill.
The government has a strong mandate to fight climate change; the largest contributor of greenhouse gas (GHG) emissions from the waste sector comes from organics. This is why the development of an Organics Action Plan has been identified as a priority for the MOECC.
A Working Group will be established in the near term to help steer the development of this Plan.
In addition to the abovementioned activities, there will be a significant amount of other work conducted by the MOECC, the Authority, industry, municipalities, environmental groups, and more over the next several years as transition to the RRCEA occurs. These are the areas we believe will be government priorities in the short to medium term.
As always, Sussex will continue to monitor developments regarding resource recovery and waste reduction activities in the province. Should you have questions, comments, or would like to discuss these matters further, please do not hesitate to contact your Sussex representative.
Sussex Strategy Group
55 University Ave., Suite 600
Toronto, ON Canada M5J 2H7