Welcome to RCC

Mr. Adam Ciulini, Team Leader
Waste Management Policy Branch
135 St. Clair Avenue West
Toronto, ON M4V 1P5

Dear Mr. Ciulini:

On behalf of Retail Council of Canada (RCC) and its members operating in Ontario, I am writing in response to the June 9, 2006, EBR Registry Posting #RA06E0003 which proposes to designate municipal hazardous or special waste (HSW) as waste under the Waste Diversion Act in order that the Minister of the Environment may request Waste Diversion Ontario (WDO) to develop a waste diversion program.

RCC appreciates the opportunity to comment on the proposed Regulation. Retailers are not only the sellers of designated products but are increasingly brand owners themselves and as such, have a significant stake in stewardship programs, including the Ontario Blue Box program. Currently, RCC's members are active participants in over 30 such programs across the country, and will be called upon to expand their role as new ones are developed.

RCC and its members support the principles of waste diversion as a whole, and look forward to working together with other key stakeholders in creating a successful hazardous or special waste diversion program. The following represents the initial thoughts of retailers, which may be added to and/or refined as further discussion and consultation takes place.

Designated Products
The proposed list of municipal HSW, as contained in the draft Regulation, is extensive and covers a large range of product categories. RCC and its members believe that in order to develop a successful program, it is important to limit the list of products designated for diversion.

In that light, retailers generally feel that for the launch of a waste diversion program for municipal HSW, the list of products should be limited. When the Minister issues the program request letter to WDO, RCC recommends a phased-in approach for the program beginning with paint, oil containers and filters, fluorescent tubing, batteries and flammables. By scheduling a manageable number of products, an Industry Funding Organization (IFO) will be able to successfully implement a waste diversion program, where additional products can be included in the future. To this end, the IFO should be authorized to conduct an annual review to determine if other products should be added to the program. However, it is important that the IFO be allowed to determine the rate at which products would be added to the existing waste diversion program.

In addition, retailers believe that in the interests of harmonization, it is important that Ontario schedule a list of HSW products similar to what has been or will be adopted in other provinces. In addition to Ontario, the Province of Manitoba has also proposed the development of a hazardous waste stewardship program. A number of other provinces have implemented stewardship programs for specific elements of hazardous or special waste including British Columbia, Saskatchewan, Nova Scotia and Quebec for paint; and British Columbia and Prince Edward Island for batteries.

Inter-provincial harmonization of product stewardship programs is a fundamental concern for the retail sector. Approaches to product stewardship across Canada are far from consistent and increasingly place national retailers in the position of having to comply with a patchwork of requirements across the country. Implementing different programs in every province has proven to be costly and administratively burdensome for retailers; and as such, harmonization must be entrenched as a foundation of product stewardship programs. As such, we feel that it is appropriate that only some products be designated for diversion at this time. Furthermore, by phasing and limiting the list of products designated for diversion it simplifies the program which may help consumers more readily understand and accept it, and hence encourage their participation.

Definitions
The draft Regulation refers to three sources for the definitions of "hazardous" and "special" wastes: the Consumer Chemicals and Containers Regulations, 2001, made under the Hazardous Products Act (Canada); CSA Standard Z752-03, "Definition of Household Hazardous Waste" (September 2003); and Regulation 347 of the Revised Regulations of Ontario, 1990; which demonstrates the complex nature of HSW products. RCC requires clarification on the inclusion of leachate toxic waste and lubricating oil in the definitions.

Leachate Toxic Waste
Section 1(1)(f) of the Regulation defines "municipal hazardous waste" as including leachate toxic waste, as defined in Regulation 347 of the Revised Regulations of Ontario, 1990.

Retailers support the principles of pollution prevention and are committed to the safety and health of Canadians. However, product manufacturers are not obligated to disclose the substance content of affected products; often there are no marks on product labels indicating the presence of certain toxic substances; and since retailers do not have the means to test each of their products for leachate content, RCC respectfully recommends that the proposed Regulation be amended to delete clause 1(1)(f).

RCC believes this element of the definition for municipal hazardous waste is outside the scope of this Regulation and should be addressed separately. RCC recommends that the Ministry of the Environment (MOE) work with its federal counterpart and consult with industry and other key stakeholders on the issue of reducing exposure of leachate toxic waste.

Lubricating Oil
While RCC understands that for the purposes of this Regulation, used or unused lubricating oil is not considered municipal hazardous or special waste, the draft Regulation is not clear on whether or not heat transfer fluids (e.g., brake fluid, anti-freeze) would be included as such. Heat transfer fluids, such as ethylene glycol and other brake fluid ingredients, are not considered as lubricating oil; as such, RCC requests clarification on how these fluids are to be defined for the purposes of this Regulation.

Empty Containers
Given that the draft Regulation is quite broad, it is unclear how empty containers will be managed under the HSW program. Currently, the Ontario Blue Box program accepts empty containers, and as major funders of the Blue Box program, RCC is concerned that retailers could be subject to two separate fees under the two programs for the same product category. The HSW program plan should account for this possible discrepancy and recognize those containers already being collected under Ontario's Blue Box program.

Industrial, Commercial and Institutional
At the June 27 MOE HSW workshop, Ministry staff indicated that "small quantities" of industrial, commercial and institutional (ICI) sector waste may be captured under the draft Regulation. If it is MOE's intention to include ICI waste, the program request letter should clearly indicate this and define the threshold for a small quantify by providing container size limits.

However, as a general principle, with respect to whether the proposed HSW stewardship program should include used or leftover packaging and product disposed as municipal waste or whether materials sold into the ICI sector should be included; RCC and its members feel that if proof of disposal of ICI waste at the retailer's expense is provided, that waste should be exempt. Limiting the programs to waste that enters the residential stream only is consistent with the practice of other provinces, including Ontario's only existing waste diversion program.

Collection
RCC and its members understand the importance of ensuring that consumers have reasonable access to collection points, particularly in remote areas. An issue of concern, however, is that one method that is consistently proposed to achieve this objective is a return-to-retail collection system.

RCC has reviewed the issues arising if retail stores acted as collection points for used or leftover consumer products and packaging. These issues include:

• Lack of space to store used products;
• Need for renovations to accommodate returns (additional ventilation, closed rooms, racking, etc.)
• Need to hire additional staff to handle incoming used products;
• Need for specialized staff training to handle incoming used products;
• Employee and customer health and safety associated with handling and storing used products;
• Store insurance coverage;
• Store fire code compliance;
• Store municipal by-law compliance;
• Administrative costs; and,
• Breach of lease provisions.

Accordingly, RCC and its members do not support any legislated or regulatory requirements that used or leftover consumer products and packaging be returned-to-retail. That being said, occasionally some retailers and their suppliers may operate specialized take-back events for used or leftover consumer products. Any product stewardship program should recognize these voluntary programs and allow retailers the flexibility to operate them.

Consumer Education
The complexity of the proposed HSW program — as highlighted by the draft Regulation's multiple definitions of "hazardous" and "special" waste, coupled with the potential overlap between which materials will be captured by the proposed HSW program and the existing Blue Box program in Ontario — demonstrates that consumer education and awareness will be vital to the success of the new waste diversion program.

RCC recommends that point-of-sale educational materials be prepared and provided to retailers by the program administrator; this will ensure that a uniform message is delivered to consumers and will assist with increasing compliance with the program. As the touch point for both consumers and manufacturers, retailers are a vital link in the supply chain and are well positioned to assist in educating and increasing awareness among consumers.

Governance
RCC supports industry-led product stewardship programs and as such, RCC strongly recommends that the MOE allow stewards of the designated material to form an industry-led IFO; and further, that the Ministry engages in a competitive, transparent and fair bid process to allow providers to bid on managing Ontario's proposed HSW stewardship program.

As stated earlier, retailers have a significant stake in the development of effective stewardship programs. In addition to being sellers of designated products, RCC's members are increasingly also product brand owners themselves and are responsible for the end-of-life management of those products and packaging. Given the major role that retailers play in product stewardship, retail must be represented in the decision-making bodies. Currently, RCC, or a retail representative, is represented on many stewardship boards across the country including Stewardship Ontario, Waste Diversion Ontario, Tire Stewardship British Columbia and the Saskatchewan Scrap Tire Board, among others.

Conclusion
RCC and its members strongly support waste diversion and prides itself on being actively involved with the development and implementation of product stewardship programs across the country. Indeed, we look forward to working together to assist in achieving the goal of increasing waste diversion and developing a sustainable industry-led municipal hazardous or special waste stewardship program for Ontario.

We look forward to actively working with the Ontario government and other stakeholders to minimize the environmental impacts associated with waste from consumer products. Once again, thank you for the opportunity to comment on the draft Municipal Hazardous or Special Waste Regulation. If you require any further information or clarification, please do not hesitate to contact me at (416) 922-0553, extension 318.

Sincerely,

Rachel Kagan
National Manager, Government Relations (Environment)

cc: John Armiento, Supervisor (A), Industrial/Bio-Medical Waste Unit, MOE
Kelly Charnetski, Senior Policy Advisory, Land, MOE
Andj Dominski, Director (A), Waste Management Policy Branch, MOE
John Fox, Environmental Policy/Program Manager, Waste Diversion Unit, MOE
Steven Radcliffe, Manager (A), Hazardous Waste Policy Section, MOE
Vince Sferrazza, Supervisor, Waste Diversion Unit, MOE
Keith West, Director, Strategic Waste Management Initiative, MOE
RCC Environment Committee