Do regulators have the capacity to oversee EPR systems?¶

Every governance safeguard in extended producer responsibility — fee transparency, target enforcement, data verification, conflict-of-interest control — ultimately depends on a public body with enough staff, expertise and appetite to use its powers against organisations that are usually larger, better resourced and better informed than it is. For years, the suspicion that this capacity was absent remained an intuition. Two government documents — a December 2025 value-for-money audit by the Auditor General of Ontario and a June 2024 report by three French state inspectorates — have turned it into evidence. This article reviews both in detail, the information asymmetry that no headcount can fix, the comparative picture across the EU and the United Kingdom, and the diagnostic questions that reveal whether any given regulator's paper powers are real.

1. Why capacity is the binding constraint¶

The structural problem is informational. A regulator's knowledge of an EPR system comes almost entirely from the parties it regulates: producers report their own supply data, producer responsibility organisations operate the fee models and hold the contracts, and the regulator sees reports generated from a machine it cannot inspect. Against that asymmetry, statutory powers are only as good as the resources and will to exercise them — and the two best-documented cases show exercised powers diverging from paper powers for years without anyone outside noticing.

2. Ontario: the Auditor General's audit¶

The Auditor General of Ontario published a value-for-money audit of the Resource Productivity and Recovery Authority (RPRA) — the province's EPR regulator — in December 2025. It is the most detailed public account anywhere of what under-resourced EPR regulation actually looks like.

Free-rider enforcement was shelved at scale. RPRA placed 1,276 of 1,804 potentially-unregistered-producer cases — 71% — on hold since 2020, redirecting staff to higher priorities. At the end of 2024, 92% of open free-rider cases had been open for a year or more, and 541 cases dating from 2020 remained unresolved five years later.

Enforcement against known non-compliance was rare and slow. Only 4% of 179 producers with outstanding data reports received compliance orders. In a sampled group of 30 non-compliant registrants, the regulator took no action beyond automated notices in 44% of cases; as of July 2025, 17 of 18 sampled producers remained non-compliant. An average of 262 days elapsed between identifying non-compliance and issuing a compliance order.

The audit requirement was not enforced. The regulator "has not begun to enforce the regulatory requirement that performance data be audited for any of its material programs, except Tires," with audits for batteries, electronics, lighting and hazardous products postponed to 2026 (the verification article sets this alongside the packaging program's own waived verification).

Public reporting lagged and published data was wrong in places. Reporting ran about twelve months behind a three-month target; of 100 collection sites contacted by the auditors, 24% did not accept materials listed on the regulator's public map.

Fair reading requires context. The authority is cost-recovery funded and grew to 92.6 full-time staff by the end of 2025 (from 84.2 the year before), concentrating growth in compliance; it closed 3,237 non-compliance cases in 2025 — a 151% year-on-year increase — and issued the penalty orders against battery producers for missed 2023–24 collection targets, totalling $2.78 million, that remain North America's most significant EPR enforcement action and the demonstration that individual producer liability in a Canadian scheme can be real. The audit describes a regulator that was, by 2025, visibly accelerating — and that had nonetheless spent the preceding half-decade with most of its enforcement powers unexercised. And the Blue Box packaging program was expressly excluded from full examination because it was still in transition: the findings describe the regulator's other programs, and whether packaging oversight looks better or worse is genuinely unknown.

One number from the audit bears directly on packaging nonetheless: as of April 2025, only 1,918 Blue Box producers had registered. Set against the free-riding findings, the unavoidable question is how many obligated packaging producers are in the system and how many are not. Nobody knows: the registry counts registrants, not obligated parties, and the gap between those two numbers is the free-riding problem in its entirety.

3. France: fifty-seven people for eighteen schemes¶

The French position is documented at national level by the June 2024 joint report of the Inspection générale des finances, the Inspection générale de l'environnement et du développement durable, and the Conseil général de l'économie. Its findings:

57 full-time-equivalent staff specialised on producer responsibility, spread across five separate administrations, supervising 18 active schemes. "Le pilotage des filières REP par les pouvoirs publics est éclaté" — public steering of the schemes is fragmented.
No sanction has ever been issued for failure to meet targets, despite several targets being missed on a recurring basis. Data are incomplete and lag by roughly two years.
The report's first recommendation: create an independent regulatory body for the schemes, consolidating the dispersed functions.

France's Cour des comptes — the state audit court — had reached compatible conclusions in 2020: the State "peine encore à remplir ses missions de pilotage et de contrôle" (still struggles to fulfil its steering and control functions), and the sanctions regime was "peu dissuasif," with maximum fines of about €30,000 against organisations managing budgets in the hundreds of millions. A ceiling of that size against sums of that size is not a counterweight; it is a rounding error.

A companion French institution completes the picture. France's oversight commission for the producer responsibility schemes (CIFREP) advises on scheme approvals, with the State retaining decision authority; its 2025 annual report flags transparency concerns about fee-setting justification and records a fact that illustrates how far oversight is from settled arithmetic: the cost-coverage rate for household packaging is officially 75%, and contested by local authorities, who put it at 45–55%. When the supervising apparatus and the payment recipients disagree by thirty percentage points about what fraction of system costs producers are actually covering, the dispute is not at the margin of the system — it is about its central parameter.

The French and Ontarian records triangulate the same conclusion from opposite institutional designs — a fragmented multi-ministry model and a consolidated cost-recovery authority — which suggests the problem is not the org chart. It is the ratio of oversight resources to system scale, and the incentives of the parties holding the information.

4. The information asymmetry, tested in court¶

The clearest illustration of the deeper problem is a courtroom exchange rather than a resourcing figure. During the July 2026 bench trial in NAW v. Feldon — the constitutional challenge to Oregon's packaging law (the transparency article) — an Oregon Department of Environmental Quality official was questioned on why the state could not directly oversee the program, and how fee changes could be discerned when the methodology is protected as confidential. In the same proceeding, expert testimony addressed the fact that a model's operators can shift costs between material categories in ways an outside party cannot detect.

That is the asymmetry stated precisely: a regulator that cannot see the model cannot audit the allocation, however many staff it has. Statutory rights of access to the fee model — even under confidentiality — are cheaper than any quantity of additional headcount, and without them the headcount reviews outputs it cannot interrogate.

5. The comparative picture¶

Oregon's incremental staffing request for implementing its recycling law amounted to under two new full-time positions plus conversion of two limited-duration roles — a data point on how implementation is resourced in practice.

The European Union's cost-coverage requirement is not self-executing. The European Court of Auditors' 2025 report on municipal waste management found: Greece's schemes not yet fully operational for all streams as national law requires; infringement proceedings opened against Poland in 2023 over incomplete transposition of EPR provisions, with fees insufficient to cover waste-management costs; and Portugal's producer fees still not fully covering costs despite a 2024 increase. Two of four audited member states were not meeting the Article 8a cost-coverage obligation years after it took effect — what a legal requirement without an enforcement apparatus produces.

The United Kingdom has taken a structurally different approach worth noting because it inverts the usual delegation. The UK scheme administrator, PackUK, explicitly retains data sign-off, fee-setting and payment administration as sovereign functions rather than delegating them to a producer organisation, with governance through a four-nations ministerial board. Its 2026–27 plan budgets roughly £28 million of administration against about £1.47 billion of chargeable disposal costs — about 1.9%. Whether that is adequate is unknown (headcount is not published, and the payment methodology it produces is itself contested by local authorities), but the architecture answers the information-asymmetry problem differently: if the state sets the fees, it necessarily holds the model.

Germany places its registry foundation — which determines competing systems' market shares and audits their reported volumes — under three-way oversight by the environment agency, the federal audit office and the competition authority, a stronger accountability arrangement than any North American packaging regulator operates under (the German article).

6. The regulator's own balance sheet¶

Capacity is usually discussed as headcount; the Ontario audit surfaced a dimension that rarely receives attention. The authority carried $20.9 million in long-term debt across six loans at the end of 2024, largely from building the registries it operates; one registry it administers ran a deficit that narrowed only after fee increases of up to 400%.

This generalises. Cost recovery is the standard funding model for EPR regulators because it appears to solve resourcing elegantly: the regulated pay for their own regulation. What it actually does is make the regulator's capacity a function of its fee-setting relationship with the parties it oversees — exposing it to exactly the political friction over fee increases that constrains any charging body, and leaving a regulator that must borrow to build its systems servicing debt out of fees charged to the entities it is supposed to police.

7. What follows for design¶

Three propositions the evidence supports:

Fund the regulator as a fraction of the system, not as a line item. EPR schemes move hundreds of millions to billions annually; oversight budgets are set as though regulation were an ordinary agency function. The UK's ~1.9% administration ratio is one published benchmark; whether it is the right one is unknown, but a jurisdiction should at least decide the ratio deliberately.

Give the regulator model access, not report access. The Oregon testimony identifies the core problem: reviewing outputs cannot detect allocation choices inside a model. Statutory access rights — under confidentiality if necessary — are the cheapest capacity that exists.

Treat unenforced requirements as absent. A verification requirement postponed each year, an audit obligation enforced on one stream of many, a sanction never once issued — these provide no assurance, and the Ontario and French records show the divergence between paper and practice persisting for years without external visibility. The honest analytical default for any scheme is that a requirement is real only when its exercise is documented.

For readers assessing their own jurisdiction, five diagnostic questions reveal most of what matters, roughly in order of how much each reveals: Does the regulator have access to the fee model, or only to reports generated from it? What proportion of identified non-compliance results in enforcement action, and how quickly — Ontario's 4% and 262 days being the only published benchmarks anywhere? Are audit and verification requirements enforced or deferred? What is the maximum sanction relative to the sums the regulated body manages — France's €30,000 ceiling being the reductio? And is the regulator's own funding secure, or does it depend on fee negotiations with the regulated?

8. Where the argument stands¶

The documented record supports a conclusion that the field has been slow to state plainly: regulatory capacity, not scheme design, is currently the binding constraint on EPR governance in the two jurisdictions where it has been independently examined — and there is no obvious reason to expect the unexamined jurisdictions to look better. The findings do not show misconduct by anyone; they show a systematic mismatch between the scale of the obligations legislatures create and the apparatus they fund to enforce them, compounded by an information asymmetry that favours the regulated at every point.

The design responses are known and mostly cheap — model access, deliberate funding ratios, sanctions proportionate to budgets, published enforcement statistics — and the fact that they remain rare is itself informative about the political economy of the instrument: the constituencies that lobby for EPR schemes rarely lobby for their regulators. Every subsequent article in this theme — on verification, on transitions — returns to this constraint, because most of what those articles document is what happens in its presence.

References¶

Auditor General of Ontario (December 2025). Value-for-money audit of the Resource Productivity and Recovery Authority. All Ontario figures in Section 2.
RPRA Annual Report 2025 — staffing, case-closure and penalty figures.
IGF/IGEDD/CGE (June 2024). Performances et gouvernance des filières à responsabilité élargie du producteur — the 57 FTE / 18 schemes finding, the no-sanction finding, and the independent-regulator recommendation.
Cour des comptes (2020). Rapport public annuel 2020, chapter on éco-organismes — the steering-and-control and sanctions findings.
NAW v. Feldon, No. 3:25-cv-01334-SB (D. Or.), bench trial, July 2026 — reported testimony summarised in Section 4.
Oregon Legislature, 2025–27 budget documentation (Package 133).
European Court of Auditors (2025). Special Report 23/2025, Municipal waste management — the Greece, Poland and Portugal findings.
PackUK, Operational Plan 2026–27 — the £28M/£1.47bn administration ratio and retained sovereign functions.

Verification note: the Ontario audit's scope exclusion of the Blue Box program is stated wherever Ontario findings are cited, and the authority's countervailing enforcement record (case closures, battery penalties) is reported alongside the criticisms. See Sources and method.