The numbers speak for themselves – construction, along with renovation and demolition (CRD) waste has long been one of the largest waste streams in Canada (e.g. wood, asphalt roofing, drywall, etc.). Further, unlike waste streams of similar size such as municipal solid waste and organics/food waste, CRD waste has been relatively untouched by regulation in either its generation or its disposal. This appears about to change.

CAP required EPR for CRD wastes by 2017

The Canadian Action Plan (CAP) included important cross-country commitments by every province and territory to require EPR for CRD wastes within 8 years of the CAP.

CRD waste was to be subject to EPR along with “Phase I” wastes and other “Phase 2” wastes such as furniture, textiles, carpeting and appliances. While there has been demonstrable success among the provinces and territories with Phase I material EPR programs, the inverse has been true for Phase II, including for CRD waste:

Despite these documented successes, there continues to be major challenges. Firstly and most importantly, the CCME goal for action by 2017 on the Phase 2 product list (construction and demolition materials, furniture, textiles and carpet, appliances and ozone depleting substances) will not be met. Construction and demolition materials are a major component of the solid waste stream both by weight and percentage and despite a few studies, small pilot programs and private initiatives there has been little progress in this area.

From the shadows to the spotlight?

Sceptics might ask why CRD waste cannot simply remain in the regulatory no-man’s land between unfettered disposal and comprehensive waste management – namely, the soft industry CRD waste goals.

After all, Ontario has quietly dropped CRD waste from its circular economy commitments. The former administration’s 2016 Strategy for a Waste-Free Ontario: Building a Circular Economy, called for the construction and demolition sectors to dramatically increase resource recovery efforts, including through amendments to the “3 Rs” industrial, commercial & institutional sectors waste regulations. Since then, CRD waste has vanished from the province’s EPR regulatory agenda (other than in respect of soils). But perhaps, EPR alone was never the answer for all CRD materials.

The Canadian Council of Ministers of the Environment (CCME), after a three-year consultation and policy development process, aims to return CRD waste to the policy forefront with a much broader and more robust set of policy requirements to reduce and resource recovery CRD waste.

CCME aims to change CRD industries

The new CCME Guide for Identifying, Evaluating and Selecting Policies for Influencing Construction, Renovation and Demolition Waste Management, 2019 contains a nearly exhaustive study of the policy options provinces and territories may adopt in reducing and diverting CRD waste.

Among the options presented:

• permitting process to better incorporate CRD waste reduction and diversion;
• producer responsibility programs for flooring, drywall, window glass, brick, asphalt roofing and engineering/treated wood;
• restrictions upon CRD waste transportation and disposal bans;
• levies upon virgin materials and non-divertible CRD wastes;
• building code, certifications and standards changes to require CRD waste reduction/diversion; and
• public procurement to include CRD waste management.

Clearly, the days of the 3Rs as exhaustive CRD waste regulation are numbered.

Regional approaches to CRD regulation

In some of the CCME waste/EPR policies, typically relating to specific products and consumer materials, there is an understandable push for cross-Canada uniformity of approach and related regulatory requirements.

For CRD waste, however, the CCME allows a combination of the best policy options above to be “tailored to [a jurisdiction’s] unique political, economic and market conditions.” How to resolve local and regional needs with industry’s desire for consistent and transparent national standards will be just one of many areas of interest to CRD industries.

The CCME has arguably laid out a detailed and instructive regulatory roadmap for CRD wastes. It is now up to the CRD industries and their partners to determine how to make the most out of these challenges and opportunities across Canada.

This article was written by Jonathan D. Cocker, head of Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm's Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations. Mr. Cocker was recently appointed the first Sustainability Officer of the International Bar Association Mr. Cocker is a frequent speaker and writer on environmental issues and has authored numerous publications including recent publications in the Environment and Climate Change Law Review, Detritus – the Official Journal of the International Waste Working Group, Chemical Watch, Circular Economy: Global Perspectives published by Springer, and in the upcoming Yale University Journal of Industrial Ecology’s special issue on Material Efficiency for Climate Change Mitigation. Mr. Cocker maintains a blog focused upon international resource recovery issues at www.environmentlawinsights.com.