Point in Time - Beverage Container Stewardship Program Regulation - 406/97

Environmental Management Act
Beverage Container Stewardship Program Regulation
406/97

Regulation BEFORE repealed by BC Reg 449/2004 , effective October 7, 2004.

406/97
O.C. 1353/97
December 5, 1997
December 15, 1997 (Parts 1, 2 and 5 and Schedules 2 and 3);, EFFECTIVE April 1, 1998 (Parts 3 and 4 and Schedules 1 and 4)
Environmental Management Act
Beverage Container Stewardship Program Regulation
[includes amendments up to B.C. Reg. 321/2004]

1
Introduction

Definitions
1
In this regulation:

Act
means the Environmental Management Act ;

aseptic container
means a laminated container composed of paper, plastic and aluminum foil but does not include a bag-in-a-box container;

beverage
means any liquid that is a ready-to-serve drink but does not include milk, milk substitutes, rice milk, soya milk, flavoured milk, infant formulas, meal replacements or dietary supplements;

beverage container agency
means, at the election of a brand-owner, one of

a
the brand-owner,

b
a company incorporated under the Company Act or the Canada Business Corporations Act , or a society incorporated under the Society Act , that is appointed by the brand-owner to act as an agent on behalf of the brand-owner, or

c
an association or partnership appointed by the brand-owner to act as an agent on behalf of the brand-owner;

board
means the multi-stakeholder Beverage Container Management Board established by the minister under section 3 (2) of the Ministry of Environment Act ;

brand-owner
means a brand-owner referred to in section 2;

container
means a container made of aluminum, glass, paper, plastic, steel or other similar material, or any combination of them, that is or was sealed by its manufacturer and may hold, holds or has held a beverage;

depot
means an operation, facility or retail premises, or an association of operations, facilities or retail premises, identified in a stewardship plan for the collection and redemption of a brand-owner's empty containers;

diversion rate
means the number of containers returned to depot for refund divided by the number of containers returned to both depot and retailers for refund;

implementation date
means the implementation date or dates set out in Schedule 1;

liquor
means liquor as defined in section 1 (1) of the Liquor Distribution Act ;

Liquor Distribution Branch
means the Liquor Distribution Branch in British Columbia continued under section 2 of the Liquor Distribution Act ;

manufacturer's agent
means manufacturer's agent as defined in section 1 (1) of the Liquor Distribution Act ;

purchaser
means a person who purchases or has purchased a beverage in a container;

recovery rate
means the number of containers returned for refund divided by the number of containers for which a deposit was collected;

recycle
means to separate and collect from the waste stream and process for utilization in a useful product insofar as is reasonably feasible;

refill
means to reuse without remanufacturing;

regional district
means regional district as defined in section 1 of the Municipal Act ;

retailer
means a person who sells to a consumer;

seller
means a person who sells a beverage in a container and includes, without limitation, a brand-owner and a retailer;

stewardship plan
or plan means a stewardship plan referred to in Part 2;

wine
does not include wine-based coolers.

[am. B.C. Regs. 323/98, s. 1; 321/2004, s. 5 (a).]

Brand-owners
2

1
For the purposes of this regulation, a brand-owner is, in respect of a container, one of the following:

a
a person who manufactures in British Columbia a beverage which is sold in a container;

b
if paragraph (a) does not apply, a manufacturer's agent who represents to the Liquor Distribution Branch a person who manufactures outside British Columbia a beverage which is sold in a container;

c
if paragraphs (a) or (b) do not apply, a person who distributes in British Columbia a beverage, other than liquor, which is sold in a container;

d
if paragraphs (a) to (c) do not apply, a person who imports into British Columbia, for resale in British Columbia, a beverage which is sold in a container.

2
Despite subsection (1) (a) or (b), the Liquor Distribution Branch may elect to be the brand-owner of a beverage which is sold in a container.

3
Subsection (2) does not apply to

a
non-alcoholic beverages, or

b
a beverage sold by a brand-owner who gives written notice to the Liquor Distribution Branch and a director that, despite subsection (2), it will continue to be the brand-owner under subsection (1) (a) or (b).

4
The Liquor Distribution Branch must give a director written notice of any election made under subsection (2) by giving particulars of the beverage category and container type for which it elects to become the brand-owner and, if applicable, naming any manufacturer or manufacturer's agent not otherwise included in that election.

[am. B.C. Reg. 321/2004, s. 5 (b).]

Scope
3

1
This regulation applies to each container that

a
may hold, holds or held a beverage,

b
is offered for sale or sold in British Columbia, and

c
is not a refillable container having a capacity of 10 litres or more.

2
Despite subsection (1), this regulation does not apply until October 1, 1999 to

a
aseptic containers,

b
paper-based polycoat gable-top containers, or

c
flexible plastic pouches that stand up on their own when filled with beverage.

[en. B.C. Reg. 323/98, s. 2; am. B.C. Reg. 334/98, s. 1.]

Interim Beverage Container Management Board
4
The interim Beverage Container Management Board may provide advice to the minister respecting

a
the design and establishment of an efficient and effective expanded deposit and refund system for the return and redemption of containers, and

b
the deposit and refund system, including the making of recommendations pertaining to stewardship plans under Part 2 and the annual report under section 13.

Director to issue report
5
On or before May 31 in each year, a director must issue a report stating

a
the recovery rate for containers in British Columbia, and

b
the extent to which container collection is proceeding in accordance with this regulation.

[am. B.C. Reg. 321/2004, s. 5 (b).]

2
Stewardship Plans

Submission of a stewardship plan
6

1
A beverage container agency must, on or before February 15, 1998, submit, in a form acceptable to a director, a stewardship plan for the collection and management of containers that it, or the brand-owner or brand-owners it represents, sells in British Columbia.

2
A beverage container agency must submit, in a form acceptable to a director, a stewardship plan for the collection and management of containers that it, or the brand-owner or brand-owners it represents, proposes to sell in British Columbia after February 15, 1998 and which are not otherwise approved under section 7.

3
A stewardship plan submitted under this section must

a
provide all of the information set out in Schedule 2, and

b
demonstrate

i
how containers will be recovered by the use of a return-to-depot system in British Columbia on and after the implementation date,

ii
how the containers will be managed in an environmentally responsible manner,

iii
how depots will be convenient to consumers in all areas of British Columbia, and

iv
how an 85% recovery rate will be achieved within 2 years after the implementation date.

4
Subsection (3) (b) (iv) does not apply to containers that hold or held wine.

5
Every beverage container agency that submits a stewardship plan under this section must promptly notify a director, in writing, of any change in the information provided under subsection (3) (a).

6
A director must, on or before November 30, 1999, after considering any recommendations of the board, make a report to the minister on an appropriate recovery rate for containers that hold or held wine.

[am. B.C. Reg. 321/2004, s. 5 (b) and (c).]

Approval of a stewardship plan
7

1
When a beverage container agency submits a stewardship plan under section 6, the director must, after considering any recommendations of the board, approve the plan or reject the plan.

2
When deciding whether or not to approve a stewardship plan, a director

a
may return the plan to the beverage container agency for further information or for amendment, and

b
must consider any relevant factors respecting a brand-owner or the brand-owners covered by the plan including, but not limited to, the factors set out in Schedule 3.

3
If a stewardship plan is rejected, the director must give the beverage container agency written reasons stating why the plan was rejected.

[am. B.C. Reg. 321/2004, s. 5 (b).]

Implementation of a stewardship plan
8

1
A brand-owner who, on February 15, 1998, is selling in British Columbia a beverage in a container must

a
have an approved stewardship plan by April 1, 1998, and

b
implement the stewardship plan in accordance with the approval and the implementation date.

2
A brand-owner who proposes, after February 15, 1998, to sell in British Columbia a beverage in a container must

a
have an approved stewardship plan before commencing to sell, and

b
implement the stewardship plan in accordance with the approval and the implementation date.

3
A brand-owner must not sell a beverage in a container, on and after the implementation date for that container, without an approved stewardship plan.

3
Deposit and Refund

Deposit
9

1
A seller must, on and after the implementation date, collect from the purchaser, at the time of sale of a beverage in a container, a deposit in an amount not less than the amount set out in Schedule 4.

2
The deposit required by subsection (1) must be shown on the consumer's receipt if a receipt is given.

3
The deposit amount set out in Schedule 4 is an amount that includes any applicable federal and provincial sales tax.

4
This section does not apply to a seller if

a
the seller sells a beverage in a container for consumption on the premises of the seller and the beverage is consumed on those premises, or

b
the seller is a manufacturer or manufacturer's agent who sells a beverage in a container to the Liquor Distribution Branch and the Liquor Distribution Branch has elected under section 2 (2) to be the brand-owner for that container.

Refund
10

1
A depot or, subject to subsection (2), a retailer, must, on and after the implementation date, accept containers for return and pay to the person returning the containers a cash refund in an amount not less than the amount set out in Schedule 4.

2
Subject to subsections (3) and (4), a retailer must accept, for return and refund, up to 24 containers per person per day that are of the same beverage category, container type and brand that the retailer sells.

3
When the deputy minister has determined that approved stewardship plans have been fully implemented in a regional district, a retailer must accept, for return and refund, up to 6 containers per person per day that are of the same beverage category, container type and brand that the retailer sells to consumers.

4
When the deputy minister has determined that approved stewardship plans have been fully implemented in a regional district and the overall diversion rate in the regional district is at least 75% for a period of 3 consecutive months, or is a lesser diversion rate as permitted by the deputy minister, retailers in that regional district are not required to accept containers for return and refund.

5
Subsections (2) to (4) do not apply to a retailer who is identified as a depot in an approved stewardship plan.

6
This section does not apply to a retailer with respect to containers that held wine or spirits unless the retailer is identified as a depot in an approved stewardship plan.

7
A depot operator or retailer is not required to accept a container, or pay a cash refund for a container, if the container

a
is contaminated, rusty or dirty,

b
can be reasonably identified as a container that was purchased before the implementation date,

c
can be reasonably identified as a container that was purchased outside of British Columbia, or

d
cannot be reasonably identified as a container to which this regulation applies.

8
The director must notify retailers of the matters referred to in subsections (3) and (4).

Container requirements
11

1
A seller must only offer for sale or sell a beverage in a container that can be refilled or recycled.

1.1
Repealed. [B.C. Reg. 334/98, s. 2.]

2
A seller must not offer for sale or sell a beverage in a metal container that is opened by use of a rigid metal pull-tab which can be removed from the container.

[am. B.C. Regs. 323/98, s. 3; 334/98, s. 2.]

Marking of containers
12
A container must not bear any label, mark, stamp or inscription which indicates that the container cannot be returned for refund.

4
Other Stewardship Requirements

Annual report
13

1
Every beverage container agency must, on or before February 28, 1999 and in each year thereafter, submit to a director an annual report detailing the effectiveness of its stewardship plan during the previous calendar year including, but not limited to, the following information:

a
the recovery rate, by regional district and container type, expressed as a percentage and independently audited;

b
annual financial statements, prepared by an independent audit, of all deposits received and refunds paid by the brand-owners covered by the plan;

c
the percentage of containers that were refilled or recycled after collection and, if recycled, how utilized;

d
how much of the stewardship plan has been implemented during the previous calendar year, what has not been implemented and why it has not been implemented.

2
A director may make public any of the information received under subsection (1).

3
In addition to the information required by subsection (1), the director may require further financial information respecting stewardship revenues received and expenses incurred, which information must not be made public or be shared with the board.

4
If the recovery rate by container type in a regional district is, 2 years after the implementation date, less than 85%, a beverage container agency must, at the request of a director, submit an amended stewardship plan describing the means by which the recovery rate target will be achieved.

5
Containers that hold or held wine are not included in the calculation of recovery rate under subsection (4).

6
If the recovery rate referred to in subsection (4) is not achieved, a director may, after considering any recommendations of the board,

a
recommend to the minister that the amount of the deposit be increased,

b
require that a beverage container agency implement additional consumer education, advertising or other similar measures the director considers appropriate, or

c
require that a brand-owner implement one or more of the following additional measures:

i
site additional depots;

ii
increase the hours of operation of depots;

iii
increase the number of days per week that depots are open;

iv
provide specified service options to increase consumer convenience.

[am. B.C. Reg. 321/2004, s. 5 (b) and (d).]

Redeemed containers
14

1
A brand-owner must ensure that its redeemed containers are refilled or recycled.

2
A brand-owner, depot or seller must not landfill or incinerate redeemed containers.

3
Repealed. [B.C. Reg. 334/98, s. 3.]

[am. B.C. Regs. 323/98, s. 4; 334/98, s. 3.]

Disputes
15
If a dispute arises under this regulation between a beverage container agency and a depot and the dispute cannot be resolved, then either the beverage container agency or the depot must refer the matter to binding arbitration under the Commercial Arbitration Act .

Confidentiality
16
Every person acting under the authority of this regulation must keep confidential all facts, information and records obtained or furnished under this regulation, except insofar as public duty requires or this regulation permits the person to make disclosure of them or to report or take official action on them.

5
Offence and Penalty

Offence and penalty
17

1
A person who contravenes section 8, 9 (1) or (2), 10 (1) to (3), 11, 12, 13 (1) or (4), 14 or 16 commits an offence.

2
A person who is convicted of an offence under subsection (1) is liable to a fine not exceeding $200 000.

3
If an offence continues under subsection (1) for more than one day, separate fines, each not exceeding the maximum fine allowable under that subsection, may be imposed for each day the offence continues.

Schedule 1

(section 1)

Implementation Dates

1
For the purposes of this regulation, the implementation dates in Column 2 are prescribed for the beverage category and container type set out opposite in Column 1.

Column 1

Column 2

Beverage Category and Container Type

Implementation Date

(a)
soft drinks, beer, coolers, cider

(i)
aluminum
April 1, 1998

(ii)
glass
April 1, 1998

(iii)
paper
April 1, 1998

(iv)
plastic
April 1, 1998

(v)
steel
April 1, 1998

(vi)
any combination under (i) to (v)
April 1, 1998

(b)
beverage categories not covered in paragraph (a), for all container types
October 1, 1998

Schedule 2

(section 6 (3) (a))

Required Information

1
Every stewardship plan must provide the following information:

a
the beverage container agency's name and address for service;

b
the name and title of a contact person at the beverage container agency;

c
the name and corporate address of each brand-owner covered by the plan;

d
the brand name of each beverage covered by the plan.

Schedule 3
[am. B.C. Reg. 321/2004, s. 5 (b).]

(section 7 (2) (b))

Approval Considerations

1
For the purposes of Part 2, a director must consider all of the following matters when determining whether or not to approve a stewardship plan:

a
the size of the population and geographical area of the markets served by the brand-owner; the projected numbers of containers, by category and type, that will be subject to deposit on the implementation date; and the size of the population intended to be served by each depot;

b
the proposed or actual location, accessibility and hours and days or anticipated hours and days of operation of depots; and the manner, kind and amount of advertising and consumer education planned by a brand-owner to inform consumers of the location and operation of depots and the environmental and economic benefits of participating in the stewardship plan;

c
the provision of convenient service options for the collection of containers in urban centres and small, isolated communities, and for persons with disabilities or who have no access to transportation;

d
how the brand-owners propose to respond to container return problems;

e
the methods used for container collection, storage, transportation and management, including recycling and utilization;

f
involvement of charitable organizations, local government, and environmental groups to optimize public accessibility in returning containers;

g
opportunities for employment in new positions for income assistance recipients resulting from the expansion of the return-to-depot system;

h
evidence of a signed agreement between the beverage container agency and the depot or depots in the stewardship plan respecting handling fees;

i
how the beverage container agency will ensure that adequate funds are available to provide refunds at the time of the redemption of containers.

Schedule 4
[am. B.C. Reg. 323/98, s. 5.]

(sections 9 (1) and 10 (1))

Container Deposit and Refund

1
For the purposes of this regulation, the prescribed deposit or refund is an amount not less than the amount in Column 2 set out opposite the container size in Column 1.

Column 1

Column 2

Container Size & Type

Minimum Amount of Deposit or Refund

(a)
one litre or less for non-alcoholic beverages
$0.05

(b)
one litre or less for alcoholic beverages
$0.10

(c)
more than 1 litre for any beverages
$0.20

2
If the amount of deposit collected is greater than the amount in Column 2 for the container size set out opposite in Column 1, the amount of refund must be equal to or greater than the deposit amount collected.

Note: this regulation repeals B.C. Regs. 136/70 and 65/85.
[Provisions of the Environmental Management Act , S.B.C. 2003, c. 53, relevant to the enactment of this regulation: section 138]