Abstract
Canada, specifically Ontario, has become the first jurisdiction in the Americas to enact a comprehensive circular economy law, the Resource Recovery and Circular Economy Act, 2016 (“RRCEA”) (SO 2016 c. 12). Previously, waste diversion existed in Ontario under the Waste Diversion Act (“WDA”) (SO 2002, c 6), a government-managed scheme that was meant to oversee the diversion of target waste streams away from landfills. The WDA tasked Waste Diversion Ontario (“WDO”) to be the industry regulator, and the province designated industry-funded organizations (“IFOs”) as service providers to coordinate waste management activities for their respective industries. The fatal systemic flaw of this framework, however, was that these two bodies were placed between the “Producers” (namely the manufacturers, first importers, and brand owners) and the end-of-life supply chain. The RRCEA will allow the province to more effectively preserve and recover resources, divert materials from landfills, and reduce greenhouse gas emissions from waste, with the overall aim of implementing a “circular economy.” Under the RRCEA, the Producers will be the primary resource recovery party, solely responsible for complying with the Ministry’s mandated obligations for resource recovery, with non-transferable liabilities. By naming the Producer as the operator of the product’s end-of-life (or “reverse”) supply chain, their decisions as to a product’s composition, content, and deconstruction attributes are now relevant to the waste management process—giving rise to an integrated circular economy market. Canada’s treatment of plastics gives interesting insight into how a circular economy might be implemented. Additionally, to address these requirements and liability issues, Producers are looking to Producer Responsibility Organizations (“PROs”) as waste management third parties to help address the new and often daunting obligations, as examined in this paper’s case study on the used tire industry in Ontario. To help implement RRCEA, Ontario has identified no less than 15 actions to help facilitate the smooth transition to a circular economy, with the express interest of creating scalable solutions which can then be mass-produced across North America.
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- 1.
- 2.
The RRCEA defines “circular economy” as an economy in which participants strive, (a) to minimize the use of raw materials, (b) to maximize the useful life of materials and other resources through resource recovery, and (c) to minimize waste generated at the end-of-life of products and packaging.
- 3.
This paper has focused its analysis upon the RRCEA as the only comprehensive circular economy law, but a somewhat lesser commitment to resource recovery and “circularity” can be seen in a number of provincial programs across Canada.
- 4.
Waste Diversion Act, 2002, S.O. 2002, c. 6 (https://www.ontario.ca/laws/statute/02w06).
- 5.
As described in more detail below, the RRCEA and the Tire Regulation place the "Producer" at the epicenter of the obligations for resource recovery and this party can be the manufacturer, brand owner, importer, distributor, dealer, or retailer.
- 6.
O. Reg. 225/18: TIRES (April 9, 2018) filed under the Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sched. 1.
- 7.
Ontario Ministry of the Environment and Climate Change (2016a) at p. 4 (“Strategy for a Waste-Free Ontario”).
- 8.
Ibid.
- 9.
Ontario Ministry of the Environment and Climate Change (2016b). At the time of writing, a new Ontario government has expressed an intention to discontinue the Climate Change Action Plan and to reorient the Province's sustainability strategy elsewhere.
- 10.
There were, in addition, certain more narrowly focused Industry Stewardship Plans, which acted very similarly to IFOs.
- 11.
S. 59 of the RRCEA uses the term “brand holder,” defined as a person who owns or licenses a brand or who otherwise has rights to market a product under a brand. The Tire Regulation reverts to “Producer” to expressly delineate the obligated party formula.
- 12.
Strategy for a Waste-Free Ontario, supra at p.4.
- 13.
Notably, IFO Ontario Tire Stewardship had the highest diversion rates for reasons which are only partially attributable to its relatively manageable and specialized set of waste diversion participants.
- 14.
SO 2016, c 12, Sch. 2.
- 15.
At the time of passage of the RRCEA, the provincial environmental regulator was the Ministry of the Environment and Climate Change.
- 16.
European Commission, Closing the loop—An EU action plan for the Circular Economy (EUR-Lex: European Commission, Brussels, 2.12.2015).
- 17.
Defined under RRCEA as “material used in addition to primary packaging to facilitate consumer's handling or transportation of one or more products, such as boxes and bags.”
- 18.
Defined under the RRCEA as “material used in addition to primary packaging to facilitate the handling or transportation of one or more products by persons other than consumers, such as pallets, bail wrap, and boxes, but does not include shipping containers designed for transporting things by road, ship, rail, or air.”
- 19.
Under s.61(3) of RRCEA, a person who imports, wholesales, leases, or retails product or is otherwise involved in the regulated product's distribution.
- 20.
S.O. 2016, c, 12—Part I—General, Definitions.
- 21.
It could be argued that WDO also omitted any policy development work, but their central position and obfuscated mandate crowded out the MOECP from much policy initiative.
- 22.
Sims Group Recycling v. Minister of the Environment and Waste Diversion Ontario, 2013 ONSC 209.
- 23.
Valiante (2019).
- 24.
Tevegini Matveev, "The Biggest Source of Ocean Plastic may not be What you Think." Canadian Broadcasting Corporation News. July 2, 2018.
- 25.
Valiante. “A Vision for a Circular Economy for Plastics in Canada,” 8.
- 26.
- 27.
Valiante. “A Vision for a Circular Economy for Plastics in Canada,” 25.
- 28.
- 29.
Valiante. “A Vision for a Circular Economy for Plastics in Canada,” 25.
- 30.
Ibid., 12.
- 31.
Valiante. “A Vision for a Circular Economy for Plastics in Canada,” 8.
- 32.
Ibid., 12–13.
- 33.
Coglianese et al. (2002)
- 34.
Valiante. "A Vision for a Circular Economy for Plastics in Canada," 20.
- 35.
Ibid., 20.
- 36.
Walker and Xanthos (2018).
- 37.
Valiante. "A Vision for a Circular Economy for Plastics in Canada," 27.
- 38.
Ibid., 27.
- 39.
https://www.theguardian.com/environment/2018/jul/12/can-norway-help-us-solve-the-plastic-crisis-one-bottle-at-a-time, The Guardian, July 12, 2018.
- 40.
Environmental Registry. Government of Ontario. (2016). https://ero.ontario.ca/notice/013-1716 .
- 41.
Tires, O. Reg. 225/18.
- 42.
Annual Reports, Ontario Tire Stewardship, 2018, online: https://rethinktires.ca/about-us/annual-report/#sthash.IwYRpwNq.dpbs.
- 43.
The following ratios can be used to calculate the number of individual tires:
1 PLT = 10 kg
1 MT = 50 kg
1 OTR = 100 kg.
- 44.
"OTS Tire Classification," Ontario Tire Stewardship (2013), online: http://rethinktires.ca/wp-content/uploads/OTS-Tire-Classification-April-2013-Final.pdf.
- 45.
General Program Information, Ontario Tire Stewardship, online: http://rethinktires.ca/program-participants/faq/#sthash.I0ZSUEx6.dpbs.
- 46.
Incentives, Ontario Tire Stewardship, online: http://rethinktires.ca/program-participants/processor/incentives/#sthash.hd4gSgeZ.dpbs.
- 47.
Tire processors process tires and create multiple sizes of tire-derived product ("TDP"), which is sold to recycled product manufacturers, who then use that TDP to create various products made from recycled rubber (calendared, molded, and extruded products). Some consumer products that are manufacturer include rubber landscape tiles, rubber mulch, playground surfacing, roofing shakes, athletic flooring, acoustic underlay and carpet pads, rubber paving, and rubber bricks. See: “Why Tire-Derived, Recycled Rubber Products?" Ontario Tire Stewardship, online: http://rethinktires.ca/around-the-home/recycled-rubber-products/#sthash.100vm5Qo.vSrr2jbx.dpbs.
- 48.
Tire Stewardship Fee (TSF) Chart, Ontario Tire Stewardship, online: http://rethinktires.ca/program-participants/stewards/tsf-fee-chart/#sthash.0yH5OJOA.dpbs .
- 49.
Strategy for a Waste-Free Ontario, supra at 14–35.
- 50.
Ibid., at 14.
- 51.
Ibid., at 17.
- 52.
Many of these concerns are highlighted in Valiante (2016)
- 53.
Recycling and Composting of Municipal Waste, O Reg 101/94.
- 54.
Waste Audits and Waste Reduction Work Plans, O Reg 102/94.
- 55.
Industrial, Commercial and Institutional Source Separation Programs, O Reg 103/94.
- 56.
Packaging Audits and Packaging Reduction Work Plans, O Reg 104/94.
- 57.
Draft Strategy for a Waste-Free Ontario, supra at 22.
- 58.
Ibid., at 22.
- 59.
Registrations Under Part II.2 of the Act—End-of-Life Vehicles, O Reg 85/16.
- 60.
Strategy for a Waste-Free Ontario, supra at. 24.
- 61.
Climate Change Mitigation and Low-carbon Economy Act, SO 2016, c 7.
- 62.
Strategy for a Waste-Free Ontario, supra at 26.
- 63.
Ibid., at 27.
- 64.
Ibid., at 23.
- 65.
Ibid., at 32.
- 66.
RSC 1985, c C-34.
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Cocker, J., Graham, K. (2020). Circular Economy in Canada. In: Ghosh, S. (eds) Circular Economy: Global Perspective. Springer, Singapore. https://doi.org/10.1007/978-981-15-1052-6_5
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