Zimbelman – Spring 2023

Extended Producer Responsibility in Ontario: A Model for the U.S.?

Wyatt Zimbelman

On July1, 2023, municipalities in the Canadian province of Ontario will begin the transition to full producer responsibility for Blue Box (product packaging, paper products, and packaging-like[1] products) recycling.[2] This transition, authorized under the Resource Recovery and Circular Economy Act, 2016[3], will move the province to a regulatory framework in which producers[4] are operationally and financially responsible for end-of-life management of their designated products and packaging.[5] This framework offers significant environmental and financial benefits to municipalities, and American legislators should be following the successes and failures of Ontario’s implementation closely.

Ontario’s new Blue Box program is built around an Extended Producer Responsibility (EPR) model.[6] The Organisation for Economic Co-operation and Development defines EPR as “an environmental policy approach in which a producer’s responsibility for a product is extended to the post-consumer stage of a product’s life cycle.”[7] EPR policies shift economic and physical responsibility for post-consumer management of products away from municipalities and back towards producers, with the goal of incentivizing producers to account for environmental considerations when designing products.[8]

Fiscal pressure on U.S. municipal solid waste utilites has been exacerbated by China’s decision to crack down on recycling imports with policies implemented from 2013 to 2018.[9] Chinese imports have dropped precipitously, with plastic waste and used paper imports falling by 92 percent and 56 percent.[10] These policies have considerably increased the cost and risk of plastic exportation for U.S. material recovery facilities and processors.[11] Solid waste services companies such as Waste Connections, Waste Management, and Republic Services have all acknowledged the financial and operational difficulties imposed by China’s changed attitude towards imports, which has created price volatility, depressed markets, and increased operating costs.[12] The change in Chinese importation policy has undercut the longstanding American model of relying on exports to solve the recycling problem.[13] Municipalities are faced with budget shortfalls that may require them to eliminate recycling programs for costly-to-recycle materials despite public pressure to address the impact of plastics on the environment.[14] Many solid waste utilities have raised fees for recycling to offset climbing costs.[15]

Implementation of EPR policies can combat the recycling problem because EPR transforms the recycling ecosystem through comprehensive policies that generate buy-in from both municipalities and producers.[16] Because they control the manufacturing process, producers are in the ideal position to make changes in packaging design that can decrease waste. Furthermore, a well-designed nationwide or statewide EPR program can align the operations of the many municipalities within the governing jurisdiction, which otherwise would operate fractured, less coordinated programs.[17]

EPR is employed widely throughout Europe, where producers combine to contribute roughly $5.5 billion USD each year for collection, sorting, and recycling of packaging.[18] In addition to the financial benefits of EPR, European countries have increased their recycling rates. As a result, nearly all EPR-employing EU nations have achieved recycling rates for packaging and paper products (PPP) of 60 percent, with many reaching 70 percent or 80 percent.[19] In comparison, the U.S. recycles roughly 50 percent of its residential PPP.[20]

EPR in the U.S. is much less developed, though many states have long operated EPR programs for manufacturers of certain hazardous materials, such as batteries and mercury thermostats.[21] However, progress is being made – in 2021, Maine became the first state to pass a producer responsibility law for packaging.[22] There, producers will pay into a fund managed by a stewardship organization based on the amount and the recyclability of packaging associated with their products.[23] Municipalities will then be reimbursed by the stewardship organization for recycling and waste management costs.[24] Oregon followed suit with their own law[25] just a few weeks after Maine, with Colorado[26] and California[27] adopting EPR for packaging in 2022. At the federal level, Senator Jeff Merkley (OR) and Representative Alan Lowenthal (CA) introduced the Break Free from Plastic Pollution Act of 2021 in the 117th Congress. The House version of the bill[28] claims 130 cosponsors, with the Senate bill[29] claiming 14. The most recent action on the bills were hearings held in June 2022 by the House Energy and Commerce Subcommittee on Environment and Climate Change.[30]

Because the four states will not require compliance from producers until 2025 at the earliest[31], the implementation of EPR in Ontario will provide more immediate feedback for lawmakers interested in producer responsibility. In theory, once made responsible for the cost and management of recycling, producers will design products to be more easily recyclable and reusable.[32] The strengthened incentives for producers should reduce the amount of waste headed for landfills and incinerators, as observed following adoption of EPR in Europe.[33] Ontario’s move to full producer responsibility was motivated in part by producers, who grew frustrated with their inability to influence the various fragmented local recycling programs and therefore did not “fully engage” on packaging design choices.[34] It remains to be seen what effect, if any, full producer responsibility will have on the product design of Ontario producers. Ontario’s new program will also provide an interesting opportunity for comparison of diversion rates under an equally shared responsibility EPR program and a full producer responsibility model.[35] Ontario’s diversion rate has stagnated over the past decade at an overall average of 60 percent for all materials.[36] As part of the new Blue Box program, the province has set material-specific diversion targets to encourage focused action on materials that currently have low diversion rates.[37]

If EPR is to be adopted in the U.S., now is the time. At least eight states, in addition to those four who have already passed legislation, have proposed EPR for packaging.[38] However, these bills are likely to face resistance from industry. In Washington, a proposed senate bill for packaging EPR died in committee.[39] While various factors were cited for the failure of the bill, such as the many amendments and a short legislative session[40], it is notable that waste disposal companies Waste Connections and Republic Services testified against the bill.[41] The bill’s opponents characterized the existing recycling system as successful, citing Washington’s high recycling rates.[42] The opponents objected to the bill’s plan for full producer responsibility, which they compared unfavorably with producer obligations under Oregon’s EPR bill.[43] The Oregon bill calls for producers to fund about 30 percent of an expanded recycling system.[44]

At least one proposed implementation of EPR has faced criticism for inadequacy. In New York, more than 160 environmental groups, community groups, and recycling small businesses called on the state to abandon its plan (proposed by Governor Hochul) to adopt EPR through the state budget process.[45] These groups took exception with the proposal giving too much control to packaging companies and having no binding requirements to reduce packaging or increase recycling, among other criticisms.[46] The thrust of their criticism was that the Governor’s proposal allowed the packaging industry to make their own rules and define who is held accountable.[47]

I see three components that all future U.S. EPR legislation should include. First, jurisdictions imposing EPR should mandate full producer responsibility. Ontario’s experience under its prior shared responsibility model, where producers had little influence and no motivation to redesign their packaging, demonstrates the frustrations of such half measures.[48] Second, the EPR legislation should include well-defined performance standards for diversion rates, recycling contamination, and other environmental impact measures. Though the financial benefits may be enticing, EPR is ultimately an environmental policy approach.[49] Without definite performance standards, including material-specific diversion rates, the program may lose its ultimate focus. Third, although the EPR framework should allow for some measure of producer input, producers should not be put in the driver’s seat. The authors of the letter opposing New York’s EPR implementation put this idea well when they say, “we do not expect fossil-fuel companies to solve the climate change problem, nor for the tobacco industry to reduce smoking rates.”[50]

Wyatt Zimbelman is a Junior Editor with MJEAL. Wyatt can be reached at wyattz@umich.edu.

[1] Packaging-like products are single-use products used for the containment or transportation of things, but are not used as packaging when the thing is supplied to the consumer. Examples include aluminum foil, metal trays, plastic wrap, and paper bags. Blue Box Regulation, Resource Productivity & Recovery Authority, https://rpra.ca/programs/blue-box/regulation/ (last visited Feb. 19, 2023).

[2] Producer responsibility for Ontario’s waste diversion programs, Province of Ontario (July 15, 2021), https://www.ontario.ca/page/producer-responsibility-ontarios-waste-diversion-programs.

[3] O. Reg. 391/21: BLUE BOX, Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sched. 1

[4] A person is considered a producer under the Blue Box Regulation if they supply Blue Box material (packaging, paper products or packaging-like products) comprised of paper, glass, metal or plastic, or a combination of these materials to consumers in Ontario. Blue Box Producers, Resource Productivity & Recovery Authority, https://rpra.ca/programs/blue-box/regulation/producers/ (last visited Feb. 22, 2023).

[5] Transition of the Blue Box and Other Programs to Full Producer Responsibility and Waste Diversion Update, Association of Municipalities Ontario (Aug. 9, 2022), https://www.amo.on.ca/advocacy/waste-diversion/transition-blue-box-and-other-programs-full-producer-responsibility-and

[6] Province of Ontario, supra note 2.

[7] Extended Producer Responsibility, OECD, https://www.oecd.org/environment/extended-producer-responsibility.htm (last visited Feb. 19, 2023).

[8] Id.

[9] Aditya Vedantam, Nallan C. Suresh, Khadija Ajmal & Michael Shelly, Impact of China’s National Sword Policy on the U.S. Landfill and Plastics Recycling Industry, Sustainability (2022).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Extended Producer Responsibility for Packaging and Paper Products: Policies, Practices, and Performance, Product Stewardship Institute (Sep. 2020), https://productstewardship.us/wp-content/uploads/2022/11/PSI_EPR_for_PPP.pdf

[15] Id. at 2.

[16] Id. at 3.

[17] Id.

[18] Id. at 6.

[19] Id.

[20] Id. at 2.

[21] Jennifer Nash & Christopher Bosso, Extended Producer Responsibility in the United States: Full Speed Ahead?, 17 J. INDUS. ECOLOGY 175, 179-80 (2013).

[22] An Act To Support and Improve Municipal Recycling Programs and Save Taxpayer Money, ME L.D. 1541 (2021)

[23] Extended Producer Responsibility Program for Packaging, Maine Department of Environmental Protection, https://www.maine.gov/dep/waste/recycle/epr.html (last visited Feb. 22, 2023).

[24] Id.

[25] Plastic Pollution and Recycling Modernization Act, OR SB 582 (2021)

[26] Producer Responsibility Program For Recycling, CO HB22-1335 (2022)

[27] Plastic Pollution Prevention and Packaging Producer Responsibility Act, CA SB 54 (2022)

[28] H.R. 2238, 117th Cong. (2021)

[29] S. 984, 117th Cong. (2021)

[30] All Actions: H.R.2238 — 117th Congress (2021-2022), Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/2238/all-actions?overview=closed#tabs (last visited Feb. 22, 2023).

[31] Effective July 1, 2025, Colorado producers may not sell or distribute any products that use covered materials in the state unless the producer is participating in the program. Producer Responsibility Program For Recycling, Colorado General Assembly, https://leg.colorado.gov/bills/hb22-1355 (last visited Mar. 15, 2023).

[32] Noah Sachs, Planning the Funeral at the Birth: Extended Producer Responsibility in the European

Union and the United States, 30 Harv. Envtl. L. Rev. 51, 64 (2006).

[33] Id. at 72.

[34] 2018 Annual Report, Stewardship Ontario, https://stewardshipontario.ca/about-us/annual-regulatory-reports/

[35] Packaging producers in Ontario have already been responsible for 50 percent of Blue Box program costs since 2004, following passage of the Waste Diversion Act (2002). Waste Diversion Act, 2002, S.O. 2002, c. 6 (Repealed)

[36] David Lindsay, Renewing the Blue Box: Final report on the blue box mediation process, Province of Ontario (Jul. 15, 2021), https://www.ontario.ca/page/renewing-blue-box-final-report-blue-box-mediation-process

[37] RPRA, supra note 4.

[38] Megan Quinn, EPR remains top item in state recycling policy debate, but bottle bills and plastic bans also in play, Waste Dive (Feb. 10, 2022), https://www.wastedive.com/news/2022-state-recycling-policy-epr-bottle-bill-plastic-ban/618501/

[39] Washington Renewing Recycling 2022 (SB 5697), Northwest Product Stewardship Council, https://productstewardship.net/legislation/washington-renewing-recycling-2022 (last visited Mar. 15, 2023).

[40] Marissa Heffernan and Jared Paben, Why EPR for packaging failed in Washington state, Resource Recycling (Mar. 30, 2022), https://resource-recycling.com/recycling/2022/03/29/why-epr-for-packaging-failed-in-washington-state/

[41] SB 5697 Senate Bill Report, Senate Environment, Energy & Technology Committee (Jan. 18, 2022) https://app.leg.wa.gov/committeeschedules/Home/Documents/29703

[42] Id.

[43] Id.

[44] Dan Felton, Four States Enact Extended Producer Responsibility Laws for Packaging, Packaging World (Sep. 21, 2022), https://www.packworld.com/news/sustainability/article/22419036/four-states-enact-packaging-epr-laws.

[45] 160+ Environmental and Community Organizations, Recycling Businesses Call on NYS Assembly and Senate To Reject Flawed Extended Producer Responsibility Legislation in State Budget, Beyond Plastics (Mar. 17, 2022), https://www.beyondplastics.org/press-releases/nys-epr-joint-letter-budget-process

[46] Id.

[47] Id.

[48] Stewardship Ontario, supra note 34.

[49] OECD, supra note 7.

[50] Beyond Plastics, supra note 45.

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