B.C.’s new Environmental Management Act received third reading in the legislature on October 21, 2003, and was given royal assent on October 23, 2003. It’s expected to be proclaimed in force in the spring of 2004. The stated intent of the legislation is to incorporate innovative techniques that encourage environmentally responsible behaviour and strengthen environmental protection. The legislation replaces the twenty-three-year old Waste Management Act and adopts environmental management practices successfully used in a number of other jurisdictions.
The former Waste Management Act was viewed as outdated; the government had responded over the years by enacting various regulations, policies and protocols — there are currently 5,000 regulatory requirements as a result of the patched regulatory framework. With the enactment of the Environmental Management Act, the various requirements are now updated and consolidated. The legislation also incorporates the ability to adopt economic instruments, administrative monetary penalties and area-based planning.
The new legislation defines “municipal solid waste” as “refuse that originates from residential, commercial, institutional, demolition, land clearing or construction sources, or refuse specified by a director to be included in a waste management plan.” There’s provision for the Minster of Water, Land and Air Protection to direct a municipality to prepare a waste management plan that complies with the regulations, and submit it to the minister for approval on or before a specified date. Municipal solid waste and recyclable material must be managed in accordance with the applicable approved waste management plan for the site.
The municipality must provide for a process for comprehensive review and consultation with the public respecting all aspects of the development, amendment and final content of the municipality’s waste management plan. In fact, the legislation specifically prohibits the minister from approving a plan unless the he or she is satisfied there’s been adequate public review and consultation.
Authority to regional districts
The new Act also provides regional districts in British Columbia with the authority to make bylaws to regulate the management of municipal solid waste or recyclable material provided the bylaw is for the purpose of implementing an approved waste management plan. These bylaws can regulate or prohibit a variety of things including: the type, quality or quantity of material that may be brought onto or removed from a site; the transport of such material within the area covered by the plan; and the delivery, deposit, storage or abandonment of such material at sites.
The new legislation also empowers a regional district to pass bylaws in relation to the collection and disposal of municipal solid waste generated within its area, or within a municipality that has contracted with the regional district for the disposal of waste from the municipality. Such bylaws may set fees payable by those who use the services of a waste hauler or by waste generators, and require waste haulers to act as agents of the regional district when collecting fees, remit fees to the regional district and maintain records.
Product Stewardship Initiatives
British Columbia currently has a regulation entitled the “Post-Consumer Residual Stewardship Program Regulation” that was enacted in 1997. (It has been revised from time to time.) This regulation is currently under review to determine if it is the appropriate mechanism for all stewardship programs.
On September 30, 2002, the ministry released its “Industry Product Stewardship Business Plan,” the objective of which was to guide the development of a waste management system financed and operated by the private sector and consumers under results-based regulations. This approach is often referred to as Extended Producer Responsibility (EPR). The framework outlined in the business plan was developed based on best practices in other jurisdictions and includes: producer/user responsibility; level playing field for brand-owners and consumers; results-based programs, and transparency and accountability. The framework also includes performance measures and annual accounting by industry.
The business plan assessed the existing regulations as against the framework provided, and concluded that revisions were needed to the regulations. For example, the programs for scrap tires, used lubricating oil, and lead-acid batteries were found to be inconsistent with the framework, and are to be revamped. The programs for post-consumer paint and beverage containers were found to be consistent with the product stewardship vision, except with respect to the level playing field requirement. The program currently established for solvents/flammable liquids, domestic pesticides, gasoline and pharmaceuticals was found to be consistent with product stewardship objectives, and is intended to serve as the model for a comprehensive product stewardship regulation that would govern all of the various programs developed.
A discussion paper entitled “Product Stewardship Regulation Review” was released in February, 2003 for use in stakeholder consultation sessions, and to assist in obtaining input on the objectives outlined in the business plan. As of the date of this article, the ministry has not released draft language for its new regulation. However, in addition to all of the products indicated above, the ministry had indicated an intention to include an industry stewardship program for electronics and to set specific performance targets for all product types. Municipalities are upset that milk containers are apparently not going to be placed on deposit.
It will be interesting to follow the development of this comprehensive regulation that will be the first of its kind in Canada. It should set an example of a strong scheme for extended producer responsibility for other jurisdictions to follow.
Rosalind Cooper, LL.B. is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in toronto, Ontario. E-mail Rosalind at email@example.com