**Part 1 of 2 Submissions…

**Part 1 of 2 Submissions from City of Toronto**

Dear: Ms. Alleyne

The City of Toronto (the City) is pleased to provide comments in response to the Environmental Registry of Ontario’s posting number 019-2579 entitled “A proposed regulation, and proposed regulatory amendments, to make producers responsible for operating Blue Box programs” released on October 19, 2020. This submission provides a summary of our positions organized into Toronto’s areas of strong support, areas Toronto believes could be strengthened, and additional comments for your consideration.

The City commends the Province of Ontario and the Ministry of Environment, Conservation and Parks’ commitment to transition Ontario’s Blue Box programs to full producer responsibility. This is an important step forward towards the Province achieving a more circular economy in Ontario.

Toronto’s Support for Key Elements of the Blue Box Regulation

Toronto strongly supports the following key elements of the draft Blue Box regulation and emphatically requests that these critical elements be carried through to the final regulation:
• Maintaining the commitment and timelines for shifting financial and operational responsibility for providing Blue Box services from municipalities to producers
• Confirming Toronto’s transition year as 2023 and including a complete municipal transition schedule
• Requiring producers to maintain the current Blue Box service levels through to the end of 2025, which includes the collection of the same list of Blue Box materials currently collected by municipalities
• Specifying that eligible sources include all municipally serviced residences, schools, parks, streetscape bins within Business Improvement Areas (BIAs), retirement homes, and long-term care facilities
• Requiring producers to develop a common collection system to collect all designated Blue Box materials from all designated sources in all communities across the province in 2026
• Requiring all brand owners, importers and marketers of designated Blue Box materials to register with and report to the Resource Productivity & Recovery Authority (RPRA)
• Broadening the definition of obligated Blue Box materials to include “consumer” materials for personal, family or household purposes
• Setting reasonable and enforceable management targets that producers must meet during 2026 – 2029 and from 2030 and beyond
• Limiting the proposed credit for recycled content to the use of only post-consumer Blue Box materials collected in Ontario
• Requiring producers to maintain current levels of promotion and education through the transition period and setting some minimum standards for promotion and education efforts beginning in 2026
• Recognizing the need to revise existing regulations for Industrial, Commercial and Institutional (IC&I) wastes with the goals of aligning, where possible, with the proposed Blue Box regulations and increasing recycling rates in these sectors

Broad consensus has been achieved among stakeholders that these are critical elements for a successful, seamless transition to full producer responsibility and for providing a strong foundation on which waste diversion can grow in Ontario more efficiently and cost effectively.

Toronto’s Recommendations to Further Strengthen the Regulation

The City of Toronto believes that the Blue Box regulation could be further strengthened, and the residents of Ontario better served by amending the proposed regulation to address the following concerns.

1.0 Compostable materials must not be exempt from collection and management requirements

While the City of Toronto does support the inclusion of compostable products and packaging in the Blue Box Program, it does not support their exclusion from collection and management requirements.

1.1 Recommendations
1. The definition of “compostable materials” (New Plastics Economy Global Commitment, p. 16
(https://www.ellenmacarthurfoundation.org/assets/downloads/13319-Global-….)) in the Blue Box regulation should be revised to reflect the Ellen MacArthur Foundation definition of compostable packaging
2. Materials which meet this revised definition in the Blue Box regulation should be reported to RPRA through the Registry as “compostable materials”. Materials which do not meet this revised definition should be reported through the Registry as “Blue Box material”.
3. The Ministry of the Environment, Conservation and Parks (MECP) and producers, through commercial agreements with organics processing owners and municipalities, should:
a. Initiate pilot projects in Ontario to rigorously assess the viability and effectiveness of managing “compostable materials”:
i. Through the Blue Box Program
ii. Through the Green Bin program
iii. Through Alternative Collection Systems
b. Use the results of these pilots to support a consultation program to establish best practices for the collection and management of “compostable materials” in Ontario.
c. Producers should be required to cover the full financial costs associated with any pilot research undertaking. MECP and municipalities, should they decide to participate in pilot projects, should not be responsible for any financial burdens.
4. MECP should define producer responsibility for “compostable material” through a separate full producer responsibility regulation under the Resource Recovery and Circular Economy Act, 2016 (RRCEA). Until such time as a compostable materials’ regulation is created and approved by Cabinet, collection and management targets for producers of these materials should be established and brought into effect, through the Blue Box Program, by January 1, 2026.

1.2 Rationale:
1. The definition of compostable materials provided in the draft Blue Box regulation is not sufficient and requires further clarity. It is not sufficient that these materials “are designed to be managed at end of life through composting, anaerobic digestion, or other processes that result in decomposition by bacteria or other living organisms”. A packaging or packaging component should only be considered “compostable” if it complies with a specified and regulated Ontario (or national) compostability standard, and if it can be practically collected, sorted from similar petroleum-based products (i.e. LDPE plastic v. compostable plastic bags) and proven to be processable (as in not removed as a contaminant at the facility) and at scale in Ontario.
The Ellen MacArthur Foundation defines compostable packaging:
A packaging or packaging component is compostable if it is in compliance with relevant international compostability standards, and if it is successful post-consumer collection, sorting, and composting is proven to work in practice and at scale. (emphasis added).
The guidance is clear that “Compostable packaging needs to go hand in hand with appropriate collection and composting infrastructure in order for it to be composted in practice. Therefore, when claiming compostability in the context of a specific geographical area (e.g., on-pack
recycling labels, public communications), it is important to take into account the local context and available systems in place as outlined in ISO 14021 …” (Ellen MacArthur Foundation. New Plastics Economy Global Commitment, 2019. Available at https://www.ellenmacarthurfoundation.org/assets/downloads/13319-Global-….) Therefore to be reported as compostable, it must be proven to work in practice and at scale.
2. Most products and packaging that could be marketed as “compostable” in Ontario under the proposed regulation’s definition (e.g. plastic bags, coffee pods, cutlery and takeout containers etc.) are encouraged by this definition to be placed in Toronto’s green bin stream where they cannot be managed through its anaerobic digesters because:
a. The City of Toronto's anaerobic digesters are designed to digest food waste, not to compost food waste products and packaging labelled “compostable (some of which are not even compostable)
b. The one exception to the previous statement (a.) about anaerobic digesters processing food waste is that small amounts of soiled paper products (such as napkins and paper plates) can be broken down easily and can assist in the absorption of leachate during collection; therefore, the City can accept these products in the green bin and help promote better participation (by minimizing the "yuck" factor.). This small amount does not negatively impact the biological composition required for anaerobic digestion to work effectively.
c. The addition of different types of "compostable" packaging to the City’s processing facilities will: create operational challenges; utilize the already limited processing capacity required to manage residential food waste; will increase processing residues; and increase operating costs that are paid for by rate payers.
d. While some paper items will break down in the hydro-pulper pre-processing system, many new "compostable" products have liners or additives, designed to provide additional strength to hold wetter foods, that make them resistant to break down inside the hydro-pulper.
e. Additionally, anything that behaves like plastic (bio-based plastics such as polylactic acid (PLA)) are removed in the pre-processing phase and re-routed to landfill at an additional cost.
3. Consumers are being educated through advertisements and labeling on products to place compostable products and packaging in composting or organics programs, which is misleading as these materials do not break down in organics processing facilities including Toronto’s facilities. They are misled to believe that a beneficial environmental outcome is being achieved, however this is not the case. These materials are removed as contaminants and landfilled.
4. Exempting these materials from collection and management requirements provides an incentive for producers to transition from currently recyclable products and packaging to theoretically “compostable” formats in an attempt to by-pass producer responsibility and the financial and operational responsibility associated with products in the Blue Box. It is critical that the regulation does not allow this to occur. Furthermore, the regulation must ensure that fibre-based products that are currently recyclable are not deemed “compostable” for the same reason. In addition, there is no practical possibility that producers will be able to manage their products this way in all communities across Ontario.
5. Creating an un-level playing field for competing producers and externalizing the costs of managing these materials to other producers and to municipalities as these materials:
a. Continue to find their way into Blue Box collection programs paid for by other producers
b. Increase operating, maintenance, and residual management costs in municipal composting programs across the province which treat these materials as contaminants
c. Will in most cases be disposed of as waste
6. The City of Toronto will be undertaking a review of items in each diversion stream, beginning with the Green Bin Program, in an effort to best determine the best management of materials in the City's integrated waste management system. This review will consider a triple bottom line approach and will consider the impact of extended producer responsibility on each stream.

2.0 Privately serviced multi-residential buildings should not have to individually “opt in” to the common collection system to ensure they receive Blue Box services

All residents of Toronto should be provided with the same opportunity to recycle Blue Box materials in their homes, regardless of whether waste management services are provided directly by the City or by contracted private companies.

2.1 Recommendations:
1. All multi-residential buildings in all eligible communities should be included in the common collection system by 2026.
2. The MECP should facilitate discussions among the Greater Toronto Apartment Association (GTAA) and other multi-residential industry organizations, the City of Toronto, and waste management service providers to facilitate the transition to the new producer responsibility Blue Box Program.

2.2 Rationale:
Fairness and equal treatment are essential to effective public policy. Multi-residential buildings receiving private collection services should not be required to “opt in” to a program that is required to be provided by producers to all other residents in the province. Inclusion in the transition should not be based on whether a building receives private or municipal waste collection services. This arbitrary distinction is unfair and an unnecessary hurdle that results in further inequity among residents as program accessibility is hampered. The “opt-in” route may be particularly onerous for smaller multi-residential buildings that are not represented by a large property management firm with more resources at their disposal.
Recycling is a well-ingrained behavioural and social norm in Ontario and all residents, regardless of who collects their waste, should have access to this fundamental program so they can do their part to increase waste diversion from landfill.
In Toronto alone, the “opt in” provision provides a potential barrier to the participation of residents living in 277,000 multi-residential units (representing more than 2,800 buildings) in the city. Furthermore, the selection of service providers fluctuates over time (between the city and the private service and among competing private service providers) with the potential for market confusion and a slower uptake of the new producer responsibility Blue Box Program in multi-residential buildings.

3.0 Proposals to amend the RRCEA to indicate that producers own any Blue Box materials put out for collection and to confirm producer’s ability to access Blue Box materials on municipal property are premature.

Making these changes would be premature. Until there is evidence to substantiate the need for these clarifications, they currently amount to arbitrary overreach. The MECP should consult on these issues in more detail following posting of the Blue Box regulation on the Environmental Registry and make only necessary amendments to the RRCEA prior to the transition of municipal Blue Box Programs to producers in 2023.

3.1 Recommendations:
1. The MECP should consult on the RRCEA amendments before submitting them to the Legislature and undertake such consultation in a timely manner.
2. The consultation program should follow a similar process to that used for developing the Blue Box regulation, including effective stakeholder consultation and posting on the Environmental Registry of Ontario for broad review.

3.2 Rationale:
Producers should not be impeded in meeting their collection and management targets, and municipalities should not be impeded in establishing policies and bylaws related to public health and safety, environmental protection, and quality of life for their residents.
It is not possible at this time to provide a thorough response to whether the RRCEA should be amended to affirm that producers own any Blue Box materials put out for collection or what provisions might be required to confirm their ability to access Blue Box materials on municipal property. Furthermore, the new producer responsibility program should not fetter Toronto’s ability to provide efficient and effective organic and general waste management services for its rate payers.
Once the details of the Blue Box regulation are finalised, there should be a thorough review of existing municipal bylaws to identify where these measures potentially intersect with the proposed common collection system, alternative collection systems, and supplemental collection programs. Producers can then identify any specific areas of concern and whether/how these measures might impede their access to Blue Box materials. Only at that point would there be a basis, if any, for necessary RRCEA changes. It is critical that producers and municipalities work together to ensure all materials are collected and removed from the right-of-way in a safe and expedient manner.
As with the MECP consultation process used to develop the core policy components of the Blue Box regulation, options to address these potential concerns should be developed and evaluated by all affected parties. Some issues to be considered in this process include:
• Given that multiple PROs may be formed to implement and operate the common collection system, that producers may develop alternative and supplemental collection systems, to whom and how will the ownership of materials and access rights be assigned?
• How will ownership and ability to access to Blue Box materials be tied to the eligible sources under the Blue Box regulation, given that producers are not required to provide services to all municipal properties?
• PROs and producers are expected to retain service providers to operate the program (which could include municipalities). How will their roles and responsibilities be incorporated into any proposed amendment?
• Producers may contract with municipalities to share key infrastructure (e.g. continue to collect Blue Box materials through integrated waste collection systems; contracting for use of municipal transfer stations; maintaining Blue Box collection depots at municipal waste collection sites). Defining access rights and responsibility for safe operations and safeguards to protect all parties onsite, including staff, members of the public, and contractors would be paramount. Care will be needed in defining access rights in these circumstances. Producers will need to be monitored to ensure they are not exceeding their authorities in an effort to obtain access to the curb.
• The privacy of Toronto residents is of tremendous importance to the City. With an increase in transport packaging resulting from more online shopping, residents’ personal information (e.g. on packaging labels) has become more visible. Producers must ensure these materials are properly handled and only used for recycling to ensure personal privacy is maintained.

4.0 Producers should be required to report on all primary, convenience and transport packaging, printed paper and packaging like products supplied into Ontario to ensure the intent of the RRCEA is upheld

Toronto recommends that producers be required to report on all primary, convenience and transport packaging, printed paper, and packaging like products that they supply into Ontario.

4.1 Recommendations:
1. Producers should be required to report on all Blue Box materials supplied into Ontario, regardless of where they are consumed.
2. PROs reporting to the Registry on behalf of producers should provide the same data in the same format submitted by the producer to the PRO. This will facilitate efficient, transparent, and effective monitoring and enforcement by RPRA.

4.2 Rationale:
Requiring producers to report on all Blue Box materials supplied into the market, regardless of where they are consumed, would:
• increase transparency of the flow and quantity of these materials
• ensure a level playing field for producers
• facilitate monitoring and enforcement
• identify opportunities for alternative collection systems and supplemental collection programs
• provide much needed data to support the upcoming consultation on revising Ontario’s IC&I waste framework
The proposed definition of “consumer” in respect of Blue Box materials, and the inclusion of all residences, depots, schools, long-term care, public spaces, parks, and streetscape bins in BIAs as eligible is a critical first step forward in making producers responsible for all of the products and packaging that they supply into the market. However, meaningful progress towards a circular economy and increased diversion from the limited landfill capacity in Ontario will only be achieved when Ontarians can recycle their Blue Box materials wherever they live, work and play.
This requirement will partially close the current data gap of how much consumer, non-residential designated materials (from the IC&I sector) will require future management in the province. This baseline data will support effective planning for the creation of policy tools required to improve the recycling performance for the significant quantities of Blue Box materials that will continue to be generated above and beyond the currently defined “eligible sources”.
Producers should be required to report their entire supply data on an annual basis, at a minimum. Annual reporting is prudent because Blue Box materials consist of fast-moving consumer goods that are in and out of the consumer market quickly. In addition, the pace of innovation in material composition and packaging design is increasing and reporting and monitoring must keep pace.
The Authority will require visibility of the total supply of primary and convenience packaging supplied into Ontario by individual producers, as well as consolidated reports from PROs. Transparency on the total flows of these materials and consistency in reporting to PROs and to the Registry will greatly facilitate RPRA’s ability to monitor the progress towards the achievement of targets and to verify producer claimed credits for recycled content use.
Given the proposal to allow PROs to report the quantities and types of materials supplied into the market on behalf of participating producers, the regulation should require that PROs report to RPRA in the same level of detail required from their participating producers.

5.0 Clarity is required on how the Ministry or RPRA can effectively monitor how producers determine what quantities of all Blue Box materials supplied into Ontario that are deemed to be for “consumer” use

Without further clarity, a significant risk is created that producers will inadvertently or improperly report the percentage of the total quantities of Blue Box materials supplied into Ontario that are assumed to be consumed in eligible sources under the regulation and therefore subject to management targets. This could result in: an un-level playing field for producers; an over-statement of the diversion rates achieved by producers (by shrinking the denominator of totally obligated materials); and make it more difficult for RPRA to accurately monitor the mass flow of Blue Box materials supplied into the market.

5.1 Recommendations:
1. Producers should be required to report on the rationale and methodology used for calculating what proportion of these materials are assumed to be supplied into eligible sources.
2. RPRA should develop simplified methodologies that could be used by small producers or for specific industry sectors to reduce administrative burden.

5.2 Rationale:
Producers already have robust data management systems to track the total quantities and types of products and packaging that they supply into their markets. However, significant challenges remain with accurately determining what percentage of these materials are consumed and generated as waste within the defined “eligible sources”. Producers will be required to individually calculate the amount of designated materials that they assume are supplied into eligible sources in the Province. To ensure fairness for all producers and compliance with the Blue Box regulation, the rationale and process used to determine eligible quantities of materials used by producers must be fully transparent and subject to RPRA oversight and audit.

6.0 Recycled content provisions should be addressed through a separate policy measure.

Toronto is in strong support of incenting producers to increase the use of recycled content in their products to encourage a more circular economy for Blue Box materials. However, Toronto is strongly opposed to allowing a recycled content credit to be used to offset a producer’s management targets. These performance metrics are entirely different policy objectives and must be dealt with separately. The Province should consider other measures to incent producers to use recycled content, such as a business tax credit.
Toronto is not able to advise on an appropriate recycled content threshold. However, allowing producers to reduce their management obligations, based on their use of recycled content, has the potential to drastically disadvantage other producers. According the methodology proposed in the draft regulation, some producers that use little to no recycled content will be required to manage more materials than they have supplied into the Ontario marketplace. In addition, it will be extremely challenging to monitor and to confirm the percentage of recycled content used in packaging. Furthermore, the draft regulation is not consistent with proposed federal initiatives to require minimum recycled content. There are more effective ways to promote more recycled content use through other possible policy approaches that don’t have the same unintended consequence.

6.1 Recommendations:
1. The proposed recycled content credit should not be used to reduce producers’ management obligations. Consider addressing the use of recycled content through a different policy tool.
2. The Government of Ontario should strongly encourage the federal government to adopt policies to promote increased use of recycled content on a national basis to harmonize practices in this area.

6.2 Rationale:
Some Blue Box materials (notably paper, glass, metals) already include significant quantities of recycled content. Given that these processes are already well established (driven by price advantages over competing virgin materials and/or to reduce a producers’ environmental footprint); and given that the proposed regulation would allow credit for recycling operations outside of Ontario; the impact for potential new recycling investments related to these materials in Ontario will be muted.
While there is potential for stimulating increased recycled content in some plastic products and packaging and for incenting recycling investments for these materials in Ontario, some producers are blocked by regulation from using recycled content in food content and pharmaceutical applications and will be disadvantaged.
If a product or package supplied by a producer into Ontario is made with recycled content, that producer will be required to manage less material than it supplies into the market. However, the material not captured by its producer (because of recycled content use) will also become waste after use and require collection and management. The producer should not be relieved of this responsibility or have this responsibility shifted to other producers. Furthermore, preliminary modeling of the potential impact indicates that if some producers can reduce their management obligations by 50% the redistribution effects of the credit mechanism could assign management responsibility to other producers which exceed the total quantities of Blue Box materials they supply into Ontario. This raises significant concerns about fairness. Furthermore, large producers have greater technical ability and procurement power to secure recycled content at more favorable prices than smaller producers, given their greater economies of scale.

Additional Comments and Considerations
In addition to Toronto’s priority areas noted above, additional comment and considerations are provided below in an effort to add clarity and ensure the policy intent and provincial interest are well-defined and achieved.

Definitions:
The definitions for “residences” and “facilities” should be clarified to highlight the policy intent to include all locations in which people live. It might be helpful to note that “facilities” include multi-residential buildings, long term care homes, retirement homes, et cetera, that receive collection in the same manner.

Litter Reduction:
In an effort to support Ontario’s priority to reduce littler in the province, producers should be held responsible for the management of their materials that have resulted in the creation of litter. Specifically, this regulation is an excellent opportunity for producers to show leadership in addressing the issue of litter by being required to also be financially and operationally responsible for products and packaging collected as part of the Ministry of the Environment, Conservation and Parks on the Provincial Day of Action on Litter, held annually in the spring.
Litter is primarily a result of consumer products and packaging that have been carelessly discarded in the public realm, particularly in places with high foot traffic and where people congregate, such as parks, playgrounds, and Business Improvement Areas. Recyclable consumer products and packaging should be collected separately to allow producers to properly manage their materials at their end-of-life. This is an excellent potential supplemental collection system opportunity, which will aid producers with meeting their targets.

Enforcement Mechanisms:
Toronto remains concerned about the timely development and implementation of the Administrative Monetary Penalties regulation which is the key enforcement mechanism to ensure a level playing field for producers and to ensure their targets are met.
Recommendations:
1. An Administrative Monetary Penalties regulation should be moved forward as soon as possible.
2. Ensure that producers implementing alternative collection systems cannot economically benefit from failing to meet targets.
3. Administrative Monetary Penalties collected from producers for failure to meet their management targets (e.g. due to failure to collect properly, failure to undertake effective promotion and education activities, etc.) ought to be used to reimburse municipalities for additional waste stream costs resulting from these failures.

Resource Recovery Fees:
Producers who charge consumers a “resource recovery” or similar fee at the point of sale should be required to report on fees collected, perform audits, and ensure consumers are properly informed about the purpose of the fees charged; how the fees are determined and how the funds raised are spent. These requirements are included in Ontario’s Used Tire Regulation and Ontario’s Deposit Return Systems to ensure consumer transparency, while providing flexibility for the producer. It is also a function that similar oversight organizations such as the Ontario Motor Vehicle Industry Council (OMVIC) have employed. Toronto does not believe there are appropriate mechanisms and resources available through the Consumer Protection Act to protect against possible abuse.
Recommendation:
1. The requirements related to resource recovery fees in Ontario Regulation 225/18 under the Resource Recovery and Circular Economy Act, 2016 should be included.