June 1, 1998

 To:Works and Utilities Committee

 From:H.W.O. Doyle

City Solicitor

 Subject:The Banning of LCBO Containers from the Blue Box and Landfill Sites

 Purpose:

 The purpose of this report is to comment on the legal implications of the Council direction as set out in the Council Reference section of this report.

 Funding Sources, Financial Implications and Impact Statement:

 N/A

 Recommendations:

 That this report be received for information and forwarded to City Council for its information and further direction on the banning of LCBO containers from the Blue Box program given the conclusion of this report.

 Council Reference/Background/History:

 City Council, at its Special meeting held on April 28 and May 1, 1998, adopted Clause No. 1 of Report No. 3A of the Works and Utilities Committee, as amended, and in doing so directed that all LCBO containers be banned from the City=s blue box program and landfill sites effective September 1, 1998.

 Comments and/or Discussion and/or Justification:

 Pursuant to Ontario Regulation 101/94 made under the Environmental Protection Act (the AEPA@), a local municipality with a population of at least five thousand must establish, operate and maintain a blue box waste management system. The source separated blue box waste must be source separated from other kinds of waste collected from residential sources and must contain at least the categories of waste set out in Schedule 1 to the Regulation. The categories of waste set out in Schedule 1 to the Regulation include glass bottles and jars for food or beverages. Accordingly, any banning of LCBO containers would be a contravention of the Regulation.

 We note that City Council had before it a communication from the firm of Outerbridge Miller indicating that in the opinion of Mr. Robert Power, deposit-return containers (defined presumably by City policy) are not a Awaste@ and that the municipality could opt out of collecting the material despite Provincial regulations. This opinion was based upon a recent case, Philip Enterprises Inc. v. Ontario (Ministry of Environment and Energy).

 The Philip case dealt with the issue of whether chop-line residue was a Awaste@ within the meaning of the EPA and therefore subject to the process of requiring certificates of approval. The issue was dealt with in the context that until 1994 chop-line residue was a recyclable material defined in the EPA but then removed. The Court therefore examined the meaning of Awaste A in the absence of any specific regulation addressing the residue. The Court held that the residue was not a waste by applying a dictionary meaning referencing a lack of value to the term.

 Notwithstanding the outcome of this case, the Court appeared to recognize that the Ministry could designate certain types of materials, including the subject residue, as waste for the purposes of regulation under the EPA. In fact, the Ministry has moved since the decision to designate such residue as a waste.

 In a similar fashion it is clear that the Legislature has allowed for regulation making authority to mandate blue box systems. Clause 176(4)(j) of the EPA allows for a regulation:

 (j)for the purpose of furthering the diversion of waste from final disposal, requiring municipalities and such other persons as may be specified in the regulation to establish such waste disposal sites or waste management systems as may be specified in the regulation.

 In accordance with this regulation making authority, the Minister has provided for a definition of Ablue box waste@ and extensive regulations pertaining to the management of such waste, including the mandatory acceptance from residential sources.

 Conclusions:

 In our opinion and contrary to the opinion expressed by Mr. Power in his communication, dated April 20, 1998, which was before City Council, municipalities cannot ban LCBO containers from the Blue Box program without contravening provincial regulation.

 Contact Name:

J. Anderson - 392-8059

  H.W.O. Doyle

City Solicitor

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