Ministry of Environment

In British Columbia, Extended Producer Responsibility (EPR), is defined as "a management system based on industry and consumers taking life-cycle responsibility for the products they produce and use". By regulating industry stewardship responsibility, the provincial government has moved away from government-managed and taxpayer-financed waste management programs.

The product producer is principally the first-seller of the product in the province. In practice, the producer is typically the product manufacturer, distributor or brand-owner. The producer could also be an importer, broker or retailer who sells the product directly to a consumer, including those whose sales are transacted by catalogue or over the internet. The definition of producer is provided in section 1 of the Regulation.

A producer must either have an approved Product Stewardship Plan and comply with the plan or comply with section 9 (Part 3) in order to sell or distribute the product in British Columbia. Section 2(2) of the Regulation provides producers the option of appointing an agency to carry out its duties under a product stewardship plan. If a producer chooses to appoint an agency, the producer must notify the agency in writing before the agency begins to carry out the duties of the producer.

An agency is appointed by a producer to act on its behalf to undertake duties that include, but are not limited to, preparing a plan, implementing a program and reporting on progress. Existing producers have found that creating a new agency or joining an existing stewardship agency can be a cost-effective and efficient way to meet their obligations under the Regulation.

The governance structure, operational systems, and fee structures of an agency are determined by the producers as members of the agency. Such an organization should be a not-for-profit entity established under the B.C. Society Act or federal legislation.

It is recommended that producers consider multi-stakeholder representation on the Board of Directors of the agency, such as consumer groups, environmental non-government organizations (ENGOs), local governments, etc.

Consideration might also be given to the establishment of an ongoing stakeholder advisory process, such as a standing stakeholder advisory committee to the Board, as part of the accountability and transparency structure of the organization. Standing advisory committees are ways in which stakeholders with vested interests (e.g. commercial interests) could be included without having a decision-making role on the Board.

For further guidance on establishing such agencies, Environment Canada has published a Producer Responsibility Organization Manual titled "Guidance Manual for Establishing, Maintaining & Improving Producer Responsibility Organizations in Canada", which can be downloaded from the MOE's website at http://www.env.gov.bc.ca/epd/recycling/resources/reports/psrr.htm

Basic plan considerations are described in Part B of this guide. Producers should ensure that the plan addresses all elements outlined in section 5 of the Regulation. Producers are encouraged to post their stewardship plans on the internet as a transparency provision. A producer must comply with other relevant laws and regulations, such as the provincial Hazardous Waste Regulation and the federal Transportation of Dangerous Goods Act.

A producer interested in introducing a new product to the B.C. market place that falls within the scope of a product category currently regulated under a schedule of the Regulation, must have an approved plan, join an agency, or comply with Part 3 of the Regulation (if relevant) prior to selling the product in B.C. Every five years the producer must review the approved plan and submit any amendments if applicable or advise the director in writing that the approved plan does not require changes as per section 6. For a new product added to the Regulation, transition provisions will be provided outlining the date by which plans must be submitted to the director and the program's implementation date.

For a new product category, if a producer has not submitted a plan or joined an existing plan by the required date, the producer is immediately subject to and must comply with section 9 (Part 3) in the Regulation. If access to Part 3 is denied by the Regulation, then the producer is in non-compliance with the Regulation.

Stewardship program funding is the responsibility of the producer. The Ministry of Environment's principle is that product management costs are borne by producers and consumers, not local governments or the general taxpayer.

A producer that chooses to use a fee that is charged at the retail level, and is shown on the consumer's receipt, must submit an independently audited financial statement showing revenues and expenditures based on the fee as part of the annual report and in accordance with section 8(2)(f) of the Regulation.

The level and scope of consultation should be based on the extent of changes to the program. New producer-led programs will need to undertake a broad multi-stakeholder consultation on all aspects of their proposed program.

The Ministry of Environment considers the following principles as steps to a satisfactory consultation process:

1. stakeholder involvement begins at the design of the consultation plan,
2. the consultation process involves a broad cross-section of the stakeholder group,
3. stakeholders are provided with effective and timely notice of consultation opportunities,
4. stakeholders are able to determine the implications to their interests by reading the wording in a document that is the subject of the consultation,
5. stakeholders are provided with sufficient time to respond to draft documents,
6. the process for reviewing responses is open and responders are advised on how their responses were addressed and the reasons, and
7. proceedings and results of activities that are part of the consultation process are properly documented and available for public scrutiny.

Conducting a satisfactory consultation process might help ensure acceptance and cooperation by stakeholders when the program is implemented. Some examples of consultation mechanisms include regional meetings, e-mail, an interactive website or webcasts.

The Ministry of Environment's role consists of reviewing annual reports and approving stewardship plans, providing assistance to producers in understanding the requirements of the Regulation through documents such as this one, and compliance and enforcement actions where necessary.

The Ministry of Environment prefers that producers who are in compliance with section 2(1) of the Regulation, or their stewardship agency, make the first effort in encouraging a non-participating producer to comply with the Regulation. After unsuccessful attempts, the participating producer(s) or their agency may inform the Ministry of Environment of the situation for further action.

Local governments may choose to participate in or assist a product stewardship program by:

• providing facilities or operational services as a service provider at a landfill or other local site for product collection or processing,
• helping to inform the public that the stewardship program is available,
• assisting the producer or agency with local land use and business licence issues relating to collection and processing facilities, and
• imposing bans on the landfilling of the relevant products when appropriate.

A retailer may be a producer, as defined in the Regulation, and have a duty to comply with section 2(1). Retailers of certain products may also have an implementation role defined in the Regulation or in an approved stewardship plan.

If there is no approved product stewardship plan, a retailer has a requirement in section 11 of the Regulation to provide consumer information.

Even if not identified in the Regulation, retailers could participate in a stewardship program. Producers are encouraged to ensure that retailers are correctly informed about the program and can inform consumers of:

• the existence of the stewardship program,
• the location of the nearest collection point for the product,
• any deposits charged in accordance with the Regulation, and refunds available, and
• any fee collected for the product to manage it at its end-of-life, and that producer fees are not government taxes.

The minimum requirements for the content of a stewardship plan are outlined in section 5 of the Regulation. The Ministry of Environment's intention is that stewardship programs will be results-based. A list of Environmental Management Tools that could be used to assist a producer in meeting the requirements of section 5 of the Regulation is provided in Appendix B of the Recycling Regulation's Guide.

Suggested topic headings for a stewardship plan include:

• Product Recovery Target(s)
• Stakeholder Consultation
• Collection System
• Consumer Awareness
• Program Performance Measurement
• Dispute Resolution
• Product Life Cycle Management
• Pollution Prevention Hierarchy

In general, a recovery rate should be a measurement of what is collected over what is sold. The measure or combination of measures should provide an adequate assessment of the program in terms of its success in collecting and appropriately managing the product at its end-of-life.

For consumable products, the producer should consider developing a metric to estimate the amount of product available for collection. For such products, producers could consider developing a performance measure for the available product that is not collected.

For products with a long lag time between purchase and disposal of the used product, the producer may wish to consider comparing the amount recovered in one year to the average amount sold for the previous years. For example, the European Commission has determined that the recovery rate for lead acid batteries will be measured over a three-year sales interval.

If a producer is unable to decide on appropriate measures, the director may specify one or more performance measures in approving the plan.

The 75% recovery rate specified in section 5(1)(a)(i) of the Regulation was chosen as a common, minimum performance target for all product schedules in an effort to be consistent for all products. The expectation is that all producers will commit to continuous improvement in performance. Accordingly, if the annual reported recovery rate is higher than 75%, that higher rate provides the baseline for subsequent years. For products with annual fluctuations between sales and returns (for example one year the recovery rates may decrease but increase the next), the general trend over a 3 to 5 year period should demonstrate improvement in the rate.

The director may establish other performance requirements that may include targets and baselines (see section 5(1)(a)(ii) of the Regulation).

The Regulation requires that the stewardship plan adequately provides for the producer to collect and pay the costs of collecting and managing products within the product category covered by the plan. The Regulation also requires the plan to adequately provide for reasonable and free consumer access to collection facilities.

The collection system design should consider and prioritize the degree of hazard presented by the product. For example, products that are considered hazardous recyclables or waste should be handled differently from beverage containers. The agency should use collection procedures that ensure segregation of all hazardous recyclables or waste generated at the same site, in order to prevent contamination of individual waste streams.

Producers could partner with existing collection systems established by producers or stewardship agencies for other products. Service providers may be interested in developing new, or expanding existing, multi-material eco-centres for the collection and handling of post-consumer products. Producers could consult with local governments to determine the most effective collection system for that community.

Producers are required to develop a consumer education program that makes consumers aware of the stewardship program and its benefits, the location of collection facilities and how to manage stewardship products in a safe manner. Consideration should be given to developing an integrated mix of communications tools, such as a web site, call-in service, brochures, posters, signage, print and broadcast advertisements, in languages suited to local demographics.

A producer or agency might consider conducting market research to identify target audiences and key messages relevant to its program. Some stewardship agencies regularly conduct such studies or commission polls to assist them in developing relevant messages and identifying suitable distribution channels for target audiences.

Producers are encouraged to assist retailers in providing and maintaining space for consumer information. Consideration might be given to utilizing the services of community-based organizations for designing and distributing information and key messages.

Producers are also encouraged to annually test the level of consumer awareness about the program and review the effectiveness of their communications strategies accordingly.

Producers must assess program performance and are therefore encouraged to develop multiple program measures for all the major components of the program, including consumer awareness, stakeholder relations and financial management.

Some examples of means by which program performance could be assessed include:

• Periodic surveys of public awareness of the program and their satisfaction with the collection system with the objective of demonstrating a high level of awareness.
• Development of a measure for ensuring that the costs of the program are leading to a measurable environmental benefit and that if a fee is charged that it is appropriate for the service provided.

Section 5(1)(c)(vi) of the Regulation requires that the plan adequately provides for a dispute resolution procedure between a producer and person providing services related to the collection and management of the product during plan implementation and program operation, but does not specify the actual procedure. The producer or agency is responsible for designing an appropriate procedure, which will be reviewed by stakeholders during the plan development process.

For information on dispute resolution concepts and organizations, visit the Ministry of Attorney Generals Dispute Resolution Office website (http://www.ag.gov.bc.ca/dro/). The justice and conflict resolution environment envisioned by the Ministry of Attorney General is based on the following principles:

1. Access: that appropriate options for preventing conflicts and resolving them at every stage of a dispute be available and easily accessible.
2. Community Participation: that conflict resolution resources exist within various communities and that these communities, in appropriate circumstances, assume an active role in resolving disputes.
3. Individual Satisfaction: that dispute resolution options maximize individual involvement and satisfaction with the process.
4. Equality: that dispute resolution processes be structured to balance power inequities between the parties.
5. Quality of Resolutions: that settlements be fair and equitable and that the parties honour them.
6. Efficiency: that dispute resolution options:
(a) be well-matched to the dispute,
(b) be cost-effective, and
(c) minimize delay in reaching resolution.
7. Awareness:
(a) that the public be aware of alternative dispute resolution options;
(b) that individuals understand how co-operative approaches to dispute resolution work.

For additional information on dispute resolution visit the Justice Institute of B.C.
(http://www.jibc.ca/). While not specified in the regulation, the MOE encourages producers to also establish a procedure for dealing with complaints or concerns on the part of consumers and non-commercial stakeholders.

Section 5(1)(c)(vii) of the Regulation requires that the plan adequately provides for eliminating or reducing the environmental impacts of a product throughout the product's life cycle. Likely the most effective way to satisfy this provision is to promote changes during the design of the product. Some examples of how a stewardship agency can promote design for environment include:

• Develop variable eco-fees. For example, a product that is easily reused, disassembled or recycled could have a lower eco-fee than one that is not.
• Encourage producers that have designed their product so that it is easily reused, disassembled or recycled to negotiate a financial arrangement with the stewardship agency that reflects the lower costs associated with managing its product at end-of-life.

Section 5(1)(c)(viii) of the Regulation requires that the stewardship plan adequately provides for "the management of the product in adherence to the order of preference in the pollution prevention hierarchy."

The hierarchy and definition of the "order of preference" is stated in section 5(3) of the Regulation and is as follows:
"For the purposes of subsection (1)(c)(vii), the pollution prevention hierarchy is as follows in descending order of preference, such that pollution prevention is not undertaken at one level unless or until all feasible opportunities for pollution prevention at a higher level have been undertaken:

(a) reduce the environmental impact of producing the product by eliminating toxic components and increasing energy and resource efficiency;
(b) redesign the product to improve reusability or recyclability;
(c) eliminate or reduce the generation of unused portions of a product that is consumable;
(d) reuse the product;
(e) recycle the product;
(f) recover material or energy from the product, or
(g) otherwise dispose of the waste from the product in compliance with the Environmental Management Act."

The application of the hierarchy is sequential, meaning that efforts to reduce environmental impacts should begin at the highest level of the hierarchy, and then proceed to efforts at lower levels as necessary, with the objective of eliminating the need for final disposal.
The order of the hierarchy is based on the principles of prevention and precaution and also on the following considerations:

• actions taken at higher levels of the hierarchy (e.g., level a or b) can eliminate or reduce the environmental management costs of actions at lower levels (e.g., level e). Redesigning a product to promote reuse or to reduce the recycling costs are examples of this consideration.
• the environmental impacts of an activity at one level of the hierarchy (e.g., level d or e) are less than the environmental impacts of an activity at a lower level of the hierarchy (e.g., level f or g). For example, reuse and, to a lesser degree recycling, reduce the environmental impact of extracting and processing primary resources, and use of recycled material reduces the energy cost of manufacturing new product.
• adherence to the highest level of performance under the hierarchy can encourage innovation and investment to improve the capability and competitiveness of the waste management industry.
• the hierarchy is a general principle, and may not hold in all applications. Departures from the hierarchy may be justified, if based on a properly designed life cycle analysis.

The stewardship plan could specify the performance targets for how much of a product, or which components of the product, will be managed at each level of the hierarchy.

The application of the hierarchy may need to be tested and assessed at the product-specific level. For instance, 'reuse' may apply to a whole product, such as glass beverage containers, or to a portion of the collected product, such as e-waste components. In the situation where only certain products in a schedule may be suitable for reuse, the hierarchy implies that products and/or components thereof be assessed for their reuse potential as early in the collection process as needed. This is just one example of the potential need for assessment. The producer or agency is responsible for undertaking this type of assessment and should include as many waste management options in the assessment as possible.

A producer's obligations under other provincial or federal health, safety and / or environmental laws may also have bearing on the application of the hierarchy to the product. To determine whether "all feasible opportunities for pollution prevention at a higher level have been undertaken" as stated in section 5(3) of the Regulation, the producer may choose to use the Environmental Management Tools in Appendix B.

A diverted product can be recycled as a material used in a civil engineering or similar project, provided:

• the use is an appropriate use of the diverted product with respect to the hierarchy within a reasonable distance from the geographic area where it was generated;
• there is no adverse impact to the receiving environment resulting from the use of the diverted product, and the diverted product has undergone an appropriate level of processing related to the material specifications of the project and is free of contaminants; was considered suitable for the intended use and selected for its engineering qualities by a qualified person with satisfactory expertise in design and material selection for the project, and has been purchased by the responsible person for the project at a reasonable cost compared to the cost of the best alternative or the cost of the material that it is intended to replace.

Product stewardship plan requirements are specified in section 5 of the Regulation. In reviewing product stewardship plans the ministry will consider the requirements under section 5(2) of the Regulation and the following industry Product Stewardship Business Plan principles:

• Responsibility for waste management is shifted from general taxpayers to producers and users..
• Responsibility is not shifted to other levels of government without consent.

• All brand-owners for a particular product category are subject to the same stewardship responsibilities.
• All consumers have reasonable access to product collection facilities.

• Programs focus on results and provide brand-owners with flexibility to determine the most cost-effective means of achieving the desired outcomes with minimum government involvement.
• Product categories are clearly defined to simplify compliance and enforcement and ensure common understanding among program participants.
• Programs are tailored for individual products and encourage continued innovation by producers to minimize environmental impacts during all stages of the product lifecycle, from product design to end-of-life management.

• Program development process is open and provides the opportunity for input to all stakeholders.
• Industry is accountable to both government and consumers for environmental outcomes and allocation of revenue from fees.

Section 8 of the Regulation requires producers to submit an annual report to the director by July 1st each year and to post a copy of the report on the program website. Section 8(2) of the Regulation provides the minimum requirements for an annual report. Importantly, the report should document the performance in adherence to the stewardship plan. The annual report should specify what the producers will do to reduce or eliminate any gap between actual and projected performance.

Section 8(3.1) allows an agency to provide one report on behalf of its member producers. However, if such a report is based on best management practices in the general industry or on industry trends, the agency should make reasonable efforts to indicate which or how many producers have adopted or endorsed those practices or trends.

Educational Materials and Strategies
Section 8(2)(a) requires that the report includes a description of educational materials and strategies. A successful public education strategy will likely be a necessary component required to meet program targets. The report should detail the educational strategy and tools such as newspaper, radio and/or TV advertisements, web pages, flyers, posters, and point-of-purchase messaging.

Collection Facilities
Section 8(2)(b) provides direction on reporting about collection facilities. In the interest of limiting the size of annual reports, the director under section 8(4) will consider limiting the report to changes in the collecting system, as long as the location of all facilities is displayed on the program website. Producers might consider reporting on the number and location of processing and disposal facilities as well as the services used in the management of the product.

Reducing Environmental Impacts
Section 8(2)(c) requires the producer to report on efforts taken to reduce environmental impacts throughout the lifecycle of the product and to increase reusability or recyclability at the end of the lifecycle. The report could include a description of product design changes or processing changes (for more information see question 2 below). The producer may report on the performance of the financial mechanisms the agency is using to promote the reduction of the product's environmental impact. The producer may also report on the status of any studies the producer is undertaking to assist with measuring the environmental impact, including the use of the environmental management tools in Appendix B.

Consistency with Pollution Prevention Hierarchy
Section 8(2)(d) requires that the report provides a description of how the recovered product was managed in accordance with the pollution prevention hierarchy. The report should detail what percentage is managed at each level of the pollution prevention hierarchy.

Recovery Rate
Section 8(2)(e) requires the report to document product's recovery rate information. This section of the report should include a description of the recovery rate of the product(s) compared to the target listed in the stewardship plan. Producers may also report on the amount of product collected in each regional district.

Financial Statements
Section 8(2)(f) requires the producer to submit independently audited financial statements if deposits are charged in the case of beverage containers, or if fees are charged by the producer to the consumer to cover the cost of the program and are shown on the consumer sales receipt. Submitting independently audited financial statements would demonstrate the producer's commitment to financial transparency and accountability on how all funds collected from consumers are managed.

The Regulation requires producers to report on their efforts to reduce environmental impacts throughout the product life-cycle, including the design and manufacturing stages. Below are some questions in relation to the highest levels of the hierarchy that a producer could consider and address in the stewardship plan and on which the producer could provide an update in each annual report:

• Are there toxic materials used and released to the environment in the manufacturing process?
Can these eliminated by changing the manufacturing process or finding alternatives?
• Are there any persistent organic pollutants or endocrine disrupting chemicals used and released during the manufacturing process, during normal use of the product by consumers, during unanticipated combustion of the product or during the end-of-life management of the product? Can these be eliminated by changing the manufacturing process or finding alternatives?
• Can the product be designed so that it can be reused as is or easily upgraded by changing only necessary components? Or can it easily be disassembled so that its components an be profitably reused? Are there examples elsewhere in the world where such products are reusable?
• If the product is not suitable for reuse, can it be easily and completely recycled? If not, can it be designed to be more easily recycled?
• If the product is a consumable household hazardous substance, can it be packaged and marketed to reduce the amount of residual product / packaging that is generated?
• Are there opportunities to increase the efficiency of material, energy and water use in the manufacturing process?
• Are there opportunities to increase the amount of renewable energy and recycled materials and decrease the amount of non-renewable energy and primary resources used in the manufacturing process?
• Are there opportunities to reduce the amount of greenhouse gas emissions during the manufacturing process?