Overview of draft Ontario Hazardous and Special Products (HSP) Regulation

In 2008, Ontario established a Municipal Hazardous and Special Waste (MHSW) program to ensure materials, such as paints, solvents, pressurized containers, oil filters and more, are being properly collected and managed. This program is currently run by Stewardship Ontario (SO) with a shared funding model between producers and municipalities.

As of July 30, 2021, the SO program will wind up and the program will transition to an individual producer responsibility (IPR) regime where producers will take on full responsibility for program funding and the collection and management of products.

As part of this process, the Government of Ontario recently released a draft Hazardous and Special Products (HSP) Regulation (the ERO posting can be found here). The 45-day consultation period is now open so stakeholders can provide feedback until March 28th, 2021.

RCC will be meeting with government and preparing a submission on behalf of members. To support these efforts, the RCC team has developed the following overview of the regulation. Please let us know if you have feedback on any of the sections of the regulation. We will also discuss the draft regulation during our upcoming EPR/Stewardship Committee meetings.

The draft regulation divides up designated materials into four categories (A, B, C, D) to reflect different regulatory requirements. Products (e.g., antifreeze, fertilizers, pressurized containers, etc.) with a capacity greater than 30L are not included.

CategoryProducts/materials
ANon-refillable pressurized containers, oil filters
BAntifreeze (including factory-fill antifreeze), empty oil containers, paints, pesticides, solvents, refillable pressurized containers
CMercury-containing devices (e.g., thermostats, thermometers, barometers)
DFertilizers

Similar to the recent batteries and EEE regulations, there is a producer hierarchy:

  1. Brand holder – resident in Canada
  2. First importer – resident in Ontario
  3. First marketer – resident in Ontario
  4. Marketer (if no resident in Ontario) – Based on the ERO posting, this would include out-of-province retailers that supply HSP to consumers through the internet

This producer hierarchy would not apply to fertilizers or mercury-containing devices (e.g., thermostats, thermometers and barometers). According to the ERO posting, the government is only proposing to obligate brand holders as they are in the best position to oversee the implementation of a promotion and education program for fertilizers or the management of mercury-containing devices.

Obligations can be passed up or down the hierarchy if there is a written agreement between a producer and a volunteer organization. While this provides producers with flexibility to meet obligations, the legal liability still remains with the first producer under the hierarchy.

Volunteer organization is defined as follows:

  1. Brand holder who owns brand,
  2. Not resident in Canada,
  3. Registered with the Authority in accordance with the Regulation, and
  4. Entered into a written agreement with a producer for the purpose of carrying out certain regulatory obligations.

To help reduce administrative burden and cost for small producers, the regulation includes a small producer exemption (also known as a de minimis threshold).

If a producer supplies less than or equal to the following product weights into the Ontario market in the previous calendar year, they are exempt from Part III (Collection), Part IV (Management) and the following sections:

  • 26 – Registration
  • 29 – Initial report, collection and management
  • 30 – Initial report, producers and volunteer organizations
  • 31 – Annual report
  • 38 – Audit
CategoryProducts/materials
ANon-refillable pressurized containers: 3 tonnes
Oil filters: 3.5 tonnes
BAntifreeze (including factory-fill antifreeze): 20 tonnes
Paints and coatings: 10 tonnes
Pesticides: 1 tonne
Solvents: 3 tonnes
Oil containers: 2 tonnes
Refillable pressurized containers: 8 tonnes

Even if a producer is exempt for product categories, there is still a recordkeeping requirement.

Producers need to register on or before May 31, 2021, if they marketed HSP between January 1, 2018 and May 31, 2021. Alternatively, if a producer markets HSP after May 31, 2021, they need to register within 30 days.

See Part VI of the regulation for more information.

Category A – management requirements are calculated as follows:

(Y1 + Y2 + Y3) / 3 x MP

  • Y1 = Weight of category A products supplied into Ontario by the producer one year prior to the performance period
  • Y2 = Weight of category A products supplied into Ontario by the producer two years prior to the performance period
  • Y3 = Weight of category A products supplied into Ontario by the producer three years prior to the performance period
Management percentage (MP):
Oil filters100% for each performance period
Non-refillable pressurized containers20% between July 1, 2021 – December 31, 2022
25% between 2023 – 2024
30% for 2025 and every subsequent year

Category B

Materials need to be processed by a registered processor who has an average recycling efficiency rate of at least:

Antifreeze, oil containers, refillable pressurized containers100% beginning in 2023
Paints, coatings70% beginning in 2022
Solvents10% beginning in 2022

Category C

Materials need to be processed by a registered processor who has an average recycling efficiency rate of at least:

Mercury containing barometers, thermometers, or thermostats100% beginning in 2023

Producers are required to establish and operate collection systems for each product in Category A and B.

There are different collection requirements for large producers (see Section 10 of the regulation) and small producers (see Section 12 of the regulation) based on product weights/management requirements. A producer’s collection requirements can depend on a municipality’s population, number of retail locations, distance, and more.

CategoryLarge producerSmall producer
ANon-refillable pressurized containers or oil filters: 100 tonnes or moreNon-refillable pressurized containers or oil filters: more than 3 and less than 100 tonnes
BAntifreeze: 300 tonnes or more
Paints and coatings: 1,000 tonnes or more
Pesticides: 9 tonnes or more
Solvents: 70 tonnes or more
Oil containers: 55 tonnes or more
Refillable pressurized containers: 100 tonnes or more
Antifreeze: more than 20 and less than 300 tonnes
Paints and coatings: more than 10 and less than 1,000 tonnes
Pesticides: more than 1 and less than 9 tonnes
Solvents: more than 3 and less than 70 tonnes
Oil containers: more than 2 and less than 55 tonnes
Refillable pressurized containers: more than 8 and less than 100 tonnes

For Category B products, average product weights can be calculated using the following formula:

(Y1+Y2+Y3) / 3

  • Y1 = the calculated weight of the HSP supplied in Ontario by the producer in the calendar year one year prior to the applicable performance period.
  • Y2 = the calculated weight of the HSP supplied in Ontario by the producer in the calendar year two years prior to the applicable performance period.
  • Y3 = the calculated weight of the HSP supplied in Ontario by the producer in the calendar year three years prior to the applicable performance period.

An initial report needs to be submitted to the Authority on or before May 31, 2021.

Annual report needs to be submitted on or before April 1, 2023 and on or before January 1 for each subsequent year.

Producer Responsibility Organizations (PROs) need to report on or before April 30, 2023, and on or before April 30 in each subsequent year.

Record keeping – Every producer, volunteer organization, PRO, etc. needs to keep applicable records in paper or electronic format (that can be examined/accessed in Ontario) for a period of five years from the date of creation.

See Part VII of the regulation for more information.

There are audit requirements for product categories A, B and C with the same auditing timeline, as follows:

  • Audits to be undertaken on or before April 30, 2023 for products that the producer was responsible for from July 1, 2021 to December 31, 2022; and
  • On or before April 30, 2026 and on or before April 30 in every third calendar year after that (based on the three immediately preceding calendar years).

Beyond the timeline, auditing requirements vary between Categories A/B and Category C. See section 38 and 39 of the regulation for more information.

For all categories (A, B, C, D), producers are required to implement a P&E program on or before July 31, 2021.

Category A and B Products

Reasonable efforts must be made to increase public awareness of producer’s efforts to collect, recover, reduce, reuse, and recycle, while encouraging public participation.

Information also needs to be displayed on a producer’s website if a producer marketed HSP between January 1, 2018 and December 31, 2020. There are also requirements if collection events are held.

For producers who market HSP at one or more retail locations, there are requirements for P&E materials, including signs, posters, brochures, etc. with information on collection activities, how consumers should safely store/handle materials, etc.

For products marketed through retail locations located on a reserve or situated within 60 km of a reserve, producers need to develop specific P&E materials in conjunction with Indigenous communities.

Category C Products

For producers who market HSP at one or more retail locations, there are requirements for P&E materials, including signs, posters, brochures, etc. with information on:

  • Mercury-containing devices – they must be provided for collection to the municipality (municipal depots) as well as specified collection sites not part of a retail location, collection events, etc.
  • The location and hours of operation of municipal depots, collection sites, collection events, etc.

For products marketed through retail locations located on a reserve or situated within 60 km of a reserve, producers need to develop specific P&E materials in conjunction with Indigenous communities.

Category D Products

Producers must make available P&E materials, including signs, posters or brochures, including:

  • That consumers are encouraged to use up, share or otherwise dispose of unused fertilizer
  • That consumers are encouraged to refrain from dropping off or delivering any fertilizers to municipal depots or to any other events referred to in this Regulation.

See Part V of the regulation for more information.

If there is a separate charge (i.e., visible fee) on an advertisement, invoice, receipt or similar record in connection with the supply of HSP that relates to resource recovery or waste reduction, producers must provide information (as part of P&E) at the time the charge is identified and in the same manner in which the charge is communicated on:

1. The person responsible for imposing the charge.
2. How the charge will be used to collect, reduce, reuse, recycle and recover HSP.

See Section 25 of the regulation for more information.

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