Notice of objection: Gowling WLG (Canada) LLP (on behalf of Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil, a partnership, by its managing partner Imperial Oil Limited, and NOVA Chemicals Corporation)

Gowling WLG

Harry Dahme
Direct +1 416 862 4300
Direct Fax +1 416 863 3410

harry.dahme@gowlingwlg.com
File no. T1022662

December 7, 2020

By E-Mail: eccc.substances.eccc@canada.ca

The Honourable Jonathan Wilkinson
Minister of the Environment and Climate Change

c/o Mr. Thomas Kruidenier,
Executive Director
Program Development and Engagement Division
Department of the Environment
Gatineau, Quebec K1A 0H3

Dear Minister Wilkinson:

Re: Notice of Objection and Request for Board of Review In relation to the Proposed Order to Add “Plastic Manufactured Items” to Schedule 1 of the Canadian Environmental Protection Act, 1999 Canada Gazette Part I, Vol. 154, No. 41 - October 10, 2020

We are writing on behalf of Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil, a partnership, by its managing partner Imperial Oil Limited, and NOVA Chemicals Corporation. This submission responds to the October 10, 2020 Gazette Notice (the “Notice”) in which the Governor in Council, on the joint recommendation of the Minister of the Environment and the Minister of Health (the “Ministers”) proposed an order to add “Plastic Manufactured Items” to Schedule 1 of the Canadian Environmental Protection Act, 1999, (“CEPA 1999”), (hereinafter referred to as the “Proposed Order”).^{Footnote 1}

As provided for by section 332(2) of CEPA 1999, we are filing this Notice of Objection and respectfully request that a Board of Review be established, pursuant to section 333 of CEPA 1999, to “inquire into the nature and extent of danger” posed by “Plastic Manufactured Items”, for the reasons set out below.

1) “Plastic manufactured items” are not a “substance” (CEPA, sections 3(1) & 90(1))

The term “Plastic Manufactured Items” does not meet the definition of a “substance”, set out in subparagraph 3(1)(f) of CEPA 1999. Accordingly, the Governor in Council does not have the authority to add “Plastic Manufactured Items” to the List of Toxic Substances (“Schedule 1”).

Subsection 90(1) of CEPA 1999 provides that the Governor in Council may make an order adding a substance to Schedule 1, on the recommendation of the Ministers, if satisfied that the substance is toxic:^{Footnote 2}

90 (1) Subject to subsection (3), the Governor in Council may, if satisfied that a substance is toxic, on the recommendation of the Ministers, make an order adding the substance to the List of Toxic Substances in Schedule 1.

The enabling authority provided to the Governor in Council relates to “a substance” singular. If satisfied that “a substance” is toxic, the Governor in Council may make an order to add “the substance” to Schedule 1.

Substances must be assessed individually, and added to Schedule 1 one at a time. The condition precedent to adding a substance to Schedule 1 is a determination by the Ministers that the substance in question is toxic. As such, the substance proposed for addition to Schedule 1 must be identified with sufficient precision that it is capable of assessment for toxicity.

Like the enabling authority in section 90(1), the definition of “substance” in CEPA 1999 also speaks in singular terms in relation to “manufactured item”. A substance may be “any matter that is capable of being dispersed in the environment”, “any element or free radical”, “any combination of different molecules that originate in nature or are the result of chemical reactions”, “any mixture that is a combination of substances”, “any animate matter”, or “any manufactured item” (“substance”).^{Footnote 3}

While it is possible for a manufactured item to be considered a substance, this is only true for manufactured items considered one at a time:

“substance means any distinguishable kind of organic or inorganic matter, whether animate or inanimate, and includes

…..(f) any manufactured item that is formed into a specific physical shape or design during manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design…”^{Footnote 4}

In this case, the Proposed Order does not target a single chemical, nor even a single manufactured item. Instead, it proposes listing “Plastic Manufactured Items”, which is a category containing thousands or even tens of thousands of individual products; including products that are fundamentally important in manufacturing, health care, automotive and renewable energy sectors. The category would include every product manufactured from plastic in Canada: from a child’s action figures, to the structural parts of our cars, homes and offices, to the plexiglass shields being used to protect grocery store clerks from COVID-19, and the containers that we use to carry our lunch to work.

As a practical matter, by identifying a category containing thousands of substances, the Proposed Order does not identify “the substance” proposed for listing with sufficient precision to enable an assessment for toxicity. As such, the condition precedent to listing is not met.

More fundamentally, the term “Plastic Manufactured Items” does not satisfy the definition of “substance” set out in subparagraph 3(1)(f), because it proposes to list a category containing thousands of manufactured items, rather than a single manufactured item, as required.

As such, the Proposed Order fails to propose a substance for listing on Schedule 1, and is ultra vires the enabling authority set out in section 90(1).

2) “Plastic manufactured items” are not toxic (section 64)

Before a substance may be added to Schedule 1, it must not only be a substance as defined in subsection 3(1), it must also meet the criteria for toxicity, pursuant to the criteria section 64 of CEPA 1999. A substance is toxic pursuant to section 64 if it meets the following definition:^{Footnote 5}

64 …. except where the expression “inherently toxic” appears, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that

1. have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
2. constitute or may constitute a danger to the environment on which life depends; or
3. constitute or may constitute a danger in Canada to human life or health. (section 64, CEPA 1999, emphasis added)

Simply put, section 64 requires harm, danger, or risk of harm or danger, either to human health or to the environment. It also requires a nexus between the harm, danger or risk posed by a substance, and the concentration, quantity or conditions under which a substance is entering the environment. Each of these criteria will be considered, in turn, below.

The Proposed Order rests on a literature review, titled the Science Assessment of Plastic Pollution (the “literature review”).^{Footnote 6}  The literature review does not actually consider the impact of “Plastic Manufactured Items” at all. Instead, it considers the existing literature regarding the impacts of pollution from “microplastics” and “macroplastics”, which are two distinct size categories of plastic pollution.

Even in relation to microplastics and macroplastics, however, the literature review does not satisfy the criteria for toxicity set out in section 64.

First, the literature review does not identify any risk to human life or health, from microplastics or macroplastics.^{Footnote 7}  Accordingly, section 64(c) of the definition of toxicity is not engaged. In relation to potential or actual risks to the environment under section 64(a) and (b), the literature review finds the evidence regarding microplastics to be “unclear” and “contradictory.^{Footnote 8}

Only in relation to macroplastics did the literature review identify actual or potential harm to the environment.^{Footnote 9}  In particular, the literature review identified two potential harms: the risk of biota becoming entangled or smothered, and the risk of biota ingesting macroplastics.

Even in relation to these risks, it is not clear that section 64 criteria are satisfied. While a range of macroplastic items can potentially pose a risk of entanglement, in the overwhelming majority of cases (as high as 83% in the studies cited by the literature review), the cause of entanglement was fishing gear, in particular fishing ropes and nets.^{Footnote 10}  While the literature review focused on macroplastics, the harm identified turns on the form of the item, and not on the material it was made from.

The literature review points to “ghost fishing”, which occurs when fishing nets and ropes are lost at sea, creating a risk of entanglement for sea life as they drift. The risk of harm from ghost fishing flows not from the material used to make the fishing nets, but from the fact that they are drifting, uncontrolled. A ghost fishing net made of natural fiber poses the same risk of entanglement to sea life as a net made of plastic. The substance that should be assessed, in that case, to determine if it is “toxic” under section 64, is the fishing net, not macroplastics.

Risks related to ingestion or smothering by macroplastics were anecdotally connected to a wide variety of items, ranging from plastics bowls and bottle caps, to plastic straws, bags, and latex balloons.^{Footnote 11}  However, as with fishing ropes and nets, there was no suggestion that these macroplastics items are inherently toxic. As such, under section 64(a) or (b), these macroplastic items must be shown to pose a risk to the environment due to the “quantity, concentration, or conditions under which” they are entering the environment, in order to be considered toxic.^{Footnote 12}

The literature review observed that the reports regarding macroplastic occurrence in Canada were often “limited to data from litter clean up initiatives as well as reports in the popular press”.^{Footnote 13}  It also frankly acknowledged that due to a lack of “standardized methods and analytical techniques”, it was simply “not possible to quantitatively characterize environmental or human exposure levels at this time”.^{Footnote 14}

The definition of toxicity is not met by proving that a single bottle cap, if littered, poses a risk to biota that might ingest it. Litter can be problematic, and not meet the threshold of being “CEPA toxic”. Section 64 specifically requires that the identified risk of harm from a substance be connected to the quantity, concentration or conditions under which the substance is entering, or may enter, the environment.

A substance for which exposure levels have not even been quantified - in the case of the literature review, a handful of macroplastic items - cannot demonstrate a risk of harm due to the “quantity, concentration or conditions under which” they are each entering the environment in Canada.

More fundamentally, there must be a legal nexus between the alleged harm, as set out in the literature review, and the substance proposed for listing on Schedule 1. No such nexus exists for “Plastic Manufactured Items”.

As set out above, the potential harm identified in the literature review relates to a handful of specific macroplastic items. However, the Proposed Order does not propose to list these specific macroplastic items, or all macroplastics. Instead, it proposes to list a category (“Plastic Manufactured Items”), which would contain every product manufactured from plastic in Canada.

Accordingly, the literature review identifies a potential harm for a substance that is not proposed for listing, and the substance proposed for listing (“Plastic Manufactured Items”) is not the substance for which a risk of harm to the environment has been identified.

The literature review did not study, review, or reach any conclusions in relation to “Plastic Manufactured Items”, nor did the literature review link “Plastic Manufactured Items” to the handful of specific macroplastic wastes identified as posing a risk.

Therefore, “Plastic Manufactured Items” do not satisfy the criteria for toxicity set out in section 64, and cannot be listed on Schedule 1.

3) The Proposed Order is based on a false premise (the 1% “leakage” assertion)

As set out above, “Plastic Manufactured Items” do not constitute a substance under section 3(1)(f), and the term does not meet the definition of toxicity in section 64. As such, the Governor in Council does not have the enabling authority under subsection 90(1) to list “Plastic Manufactured Items” on Schedule 1. Given these fundamental legal concerns, it is worth stepping back to consider the regulatory issue being targeted. What problem is the Proposed Order trying to solve, by labelling every item manufactured from plastic in Canada as “toxic”?

Both the literature assessment and the regulatory impact assessment statement (“RIAS”) for the Proposed Order make clear that the problem being targeted is plastic litter entering the Canadian environment. Both documents assert that 1% of the plastic waste generated annually in Canada - an estimated 29,000 tons or 29 kilotons (“KT”), in 2016 - ends up in the environment as litter, every year.^{Footnote 15}

Recall, as discussed above, that unless a substance is inherently toxic, it is not “toxic” under section 64 unless there is both a risk of harm, and a link between that risk and the quantity, concentration, or conditions under which it is entering the environment. In relation to the Proposed Order, the ubiquity of plastics is not sufficient, nor is risk posed by particular macroplastics sufficient. In order to satisfy section 64, the Proposed Order relies on the assertion that 1% of the plastic waste generated annually, or 29 kt in 2016, ends up as litter in the environment.

This 1% figure is the basis for the Proposed Order that would list “Plastic Manufactured Items” on Schedule 1. It drives the entire policy exercise. However the 1% figure is not rooted in fact.

The 1% figure is cited to a report prepared for Environment and Climate Change Canada (“ECCC”) by Deloitte, titled Economic Study of the Canadian Plastic Industry, Market and Waste: Summary Report to Environment and Climate Change Canada.^{Footnote 16}  The full economic study has not been published by ECCC, but a summary report has been, and is available online (the “economic study”).^{Footnote 17}

The economic study outlines a model of plastic waste management in Canada, using 2016 as a baseline year. This model, prepared by Deloitte, estimates that 1% of the plastic waste that was generated in Canada in 2016 was lost to the environment, and labels this loss as “leakage” (see figure 5, figure 19, table 23 and the definition for “LEAK”).^{Footnote 18}

However, Deloitte did not actually measure how much of the plastic waste generated in Canada in 2016 ended up as litter, nor does it rely on any study that did so. Instead, the amount of plastic waste that “leaked” into the environment in 2016 was estimated by Deloitte: “This second fraction, also called plastics leaked into the environment (LEAK) is estimated in the model” (emphasis added).^{Footnote 19}

In table 23, where the term “LEAK” is defined, the Deloitte study cites a single paper in relation to the 1% estimate, authored by Jambeck et al:

“Global estimates of plastic leakage into the environment were prepared by Jambeck et al. in 2015. In this study, the authors estimated that approximately 10,000 tonnes of plastic waste were mismanaged in coastal areas and nearly 29,000 tonnes across Canada”.^{Footnote 20}

Both the literature review and the RIAS estimate that 1% of the plastic waste produced in Canada each year becomes litter. They do so based on Deloitte’s Economic study, which also estimates a “leakage” rate of 1% of the plastic waste generated annually. However, the Jambeck et al study, cited by Deloitte, does not provide actual data for Canada, for 2016 or otherwise.

Like the Deloitte paper, the Jambeck paper is not a quantitative assessment of plastic waste. Instead, it is a paper describing an engineering model, to be used for prediction and management. The authors note that although the presence of plastic debris in the oceans is widely documented, “the “quantity of plastic entering the ocean from waste generated on land is unknown”.^{Footnote 21}

In order to help model the impact of different regulatory scenarios, and project forward in time, the Jambeck model uses data on solid waste generation, population density, and economic status to estimate the quantity of plastic waste entering the ocean from land: “We estimated the annual input of plastic to the ocean from waste generated by coastal populations worldwide”.^{Footnote 22}

Jambeck et al considered 192 countries, and the top 20 countries were estimated to be responsible for 83% of the annual total of “mismanaged” plastic waste in 2010.^{Footnote 23}  Canada was not among the offenders.

Looking behind the Jambeck article at the supplementary materials for the article and the spreadsheet setting out Jambeck’s detailed calculations, Canada was actually not attributed any inadequately managed waste at all, but was estimated to have a 2% rate of littering.^{Footnote 24}  Once again, however, this littering rate was also estimated, not measured.

Jambeck’s supplementary materials make clear that Jambeck’s paper, in turn, cited a single study of littering, undertaken in relation to litter on roadways in the U.S, in 2008:

“We estimated percentage of waste littered using the only available national estimate of litter mass (25), which reported 4.17 million MT of litter generated in the United States in 2008, equivalent to approximately 2% of national waste generation. For each country we estimated 2% of the total waste generated is littered…” (emphasis added).^{Footnote 25 Footnote 26}

In summary, the factual premise underlying the Proposed Order is that 1% of the plastic waste generated in Canada “leaks” into the environment. However, this factual premise is completely unsupported. It is not based on any measurement or quantitative data from Canada at all. Instead, it is an estimate, based on an estimate, based on an estimate - based on a single study, carried out in the U.S., in 2008.

This factual matrix cannot possibly provide a reasonable basis for the Governor in Council to conclude, in 2020, that 1% of the plastic waste generated in Canada annually “leaks” into the environment.

Section 64’s criteria for toxicity, which require a risk of harm or danger to the environment by virtue of the quantity, concentration or conditions under which a substance is entering or may enter the environment, in Canada, cannot be satisfied by an estimate. Nor can it be satisfied by a single, 12-year-old study, of conditions in a different country.

Likewise, subsection 90(1) requires the Governor in Council to be “satisfied” that a substance is toxic. In order to do so, the Ministers, and the Governor in Council, must be able to point to occurrence data for the substance in question. That occurrence data must be for the Canadian environment. It cannot be sufficient for the Governors in Council to guess that a problem may exist, based on an estimate three times removed, or based on conditions in another country.

For the reasons set out above, the Proposed Order is ultra vires both section 64 and subsection 90(1).

Request for Board of Review

As provided for by section 332(2) of CEPA, Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil, a partnership, by its managing partner Imperial Oil Limited, and NOVA Chemicals Corporation respectfully request that a Board of Review be established, pursuant to section 333 of CEPA, to “inquire into the nature and extent of danger” posed by “Plastic Manufactured Items”.

As set out above, the Proposed Order does not satisfy the definition of “substance”, or the criteria for toxicity. The reason that it fails to meet these statutory requirements is because the regulatory process leading up to the Proposed Order was a marked departure from the norm under CEPA 1999. In particular, the Proposed Order is not supported by a substance risk assessment, or for that matter, by science, and weight of evidence analysis.

The American Chemistry Council noted, when commenting on the draft literature review, that it:

“does not individually assess each ‘plastic’, either with respect to the specific polymer relevant to that plastic or the relevant and specific additives; each plastic as used in packing; or each plastic as used in a particular product.

The Draft also does not adequately present specific findings that take into account use, exposure, and environmental fate specific to each plastic, plastic packaging, and resin. It does not support substance-specific findings related to the entry of the substance into the environment in a quantity or concentration or under conditions that justify further action.”^{Footnote 27}

A Board of Review would provide an opportunity to remedy the above shortcomings. A targeted and more robust review would place science and risk assessment front and centre, to examine the scientific data available, including the quality and uncertainty associated with the data, and to determine, in a credible manner, if “Plastic Manufactured Items” in fact pose a risk of harm that satisfies the criteria set out in section 64.

1) The importance of science

One of CEPA’s “guiding principles” is that CEPA 1999 “emphasizes the integral role of science” in decision-making.^{Footnote 28}  The entire statutory scheme of Part 5 of CEPA 1999, Controlling Toxic Substances, is built on sound, scientific assessment of risk in relation to the management of toxic substances.

ECCC’s own guide to CEPA 1999, which has been in place since 2004, underscores that risk assessment is the “prelude to, and informs, the risk management stage for all programs” under CEPA 1999.^{Footnote 29}  As noted above, however, no risk assessment was undertaken for “Plastic Manufactured Items” to support the Proposed Order.

Risk assessments are carried out under Part 5 of CEPA 1999 in relation to “existing substances”, those which are on the Domestic Substances List and subject to a screening level assessment or identified for inclusion on the Priority Substances List prior to assessment, and for “new substances”, which are assessed pursuant to the New Substance Notification Regulations. Regardless of which track a substance is on, ECCC advises that substance risk assessments must be based on “sound science”, and incorporate the “weight of evidence” approach (discussed further below):

“Risk Assessment - Substance risk assessments are based on sound science, which supports a better understanding of their impacts and exposure to the environment and human health. The assessments incorporate the precautionary principle and a weight of evidence approach. Risk assessment also helps to identify the sources of pollution that pose the greatest risk to the environment and human health…risk assessment is the prelude to, and informs, the risk management stage for all programs under CEPA 1999…”^{Footnote 30}

The Government of Canada makes clear in ECCC’s online guidance related to CEPA 1999 that, in all cases, the determination as to whether a substance is toxic and should be added to Schedule 1 must either be based on a risk assessment, or on a finding that a substance is “CEPA-toxic equivalent”, which must in turn be the result of a systematic, risk-based assessment:

“substances may also be added to the List of Toxic Substances in Schedule 1 of CEPA through section 90(1) of the act without having gone through a priority substances list assessment, a screening assessment, or the review of another jurisdiction's decision if, on the recommendation of the ministers of Environment and Health, the Governor in Council is satisfied that a substance is toxic. A substance is "CEPA-toxic equivalent" if it satisfies the definition of "CEPA-toxic" as a result of a systematic, risk-based assessment. Such assessments can include determinations made under other federal statutes, or can incorporate appropriate elements of assessments done by or for provinces or territories, international organizations or other appropriate scientific authorities” (emphasis added)^{Footnote 31}

The Government of Canada further advises that systematic, risk-based assessments found to be “CEPA-toxic-equivalent” could come out of international organizations, provinces, or “appropriate scientific authorities”.^{Footnote 32}  The examples provided in relation to subsection 90(1) are the Montreal Protocol on Substances that Deplete the Ozone Layer, in relation to the substance bromochloromethane, and the Stockholm Convention on Persistent Organic Pollutants, in relation to the substance DDT.

Both conventions were implemented under the auspices of the United Nations Environment Program, and in both cases, rely on rigorous, science-based evaluation leading to multilateral action on global environmental issues of concern. Furthermore, it cannot be credibly asserted that bromochloromethane and DDT are in any way comparable to “Plastic Manufactured Items”. In no case, in relation to Schedule 1, does ECCC assert that it is appropriate, or within the power of the Governor-in-Council pursuant to CEPA 1999, to find a substance “CEPA toxic”, or “CEPA-toxic equivalent”, without a proper, science based risk assessment. Yet this is precisely what the Proposed Order now purports to do in relation to “Plastic Manufactured Items”.

2) The absence of science, and risk assessment, in support of the Proposed Order

As noted above, the literature review was not a risk assessment, and was “not intended as a substitute for” risk assessment. The literature review itself makes this point:

“This report is a review of the current state of the science on plastic pollution. It is not intended as a substitute for chemical risk assessment…”^{Footnote 33}

ECCC acknowledges that it was unable to carry out a risk assessment in relation to “Plastic Manufactured Items” due to “significant data gaps”. These data gaps included a “lack of standardized methods” for monitoring, and for “characterizing the environmental and health effects” of the substances under review”. They also included “inconsistencies in reporting” in relation to both occurrence and effects data:

Typically, a chemical risk assessment is conducted to assess the potential for risk to the environment and human health associated with a substance. However, significant data gaps currently exist that preclude the ability to conduct a quantitative risk assessment, including a lack of standardized methods for monitoring microplastics and characterizing the environmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data in the scientific literature (Gouin et al. 2019).^{Footnote 34}

To give just one example, the literature review noted that studies on microplastics suffered from a “general lack of consistency and reliability” in relation to methods used to “sample and quantify” microplastics in the environment, and in media such as drinking water, or food. The literature review reported that visual identification was often used to determine if a particle was, in fact, plastic, which can lead to a “high false positive rate”, as it “does not allow for proper characterization of plastics”.

“For instance, when fibres visually identified as microplastics from the GI tracts of eelpout (Zoarces viviparous) were analyzed…none of the fibre were determined to be of synthetic origin.”^{Footnote 35}

In other words, the fibres that had been counted as ‘microplastics’ were not, in fact, plastic at all.

The American Chemistry Council wrote to ECCC in March 31, 2020, expressing concern about the failure to conduct a risk assessment, and noting that:

“The draft itself is not a risk assessment. For that matter, it is not a problem formulation or scope of a risk assessment…

If a particular product, packaging or resin is evaluated, using best available science and weight of evidence, taking into consideration the quality of studies, and as a result, is deemed to present significant enough concern to warrant a risk assessment, then a robust risk assessment could proceed. It appears, however, that the proposed course of action is to skip over the risk assessment. This is unwise and wholly inconsistent with the provisions of CEPA”^{Footnote 36}

The literature review may not have been intended as a substitute for risk assessment, but that is precisely how it has been used in relation to the Proposed Order. This, notwithstanding the acknowledgement in the literature review that the very frameworks to be used to carry out risk assessment for plastics pollution are currently in the process of development:

“risk assessment frameworks for evaluating the potential risks associated with plastics pollution are currently under development”.^{Footnote 37}

The Governor in Council cannot reach a conclusion in relation to the potential risks of a substance for which no risk assessment has been carried out - and in relation to which the framework for undertaking such a risk assessment is still being developed.

3) The precautionary principle

The RIAS for the Proposed Order asserts that “Plastic Manufactured Items” are being added to Schedule 1 in accordance with the precautionary principle, in order to “address the potential ecological risks associated with certain manufactured items becoming plastic pollution”.^{Footnote 38}

However, “Plastic Manufactured Items” are not, ab initio, plastic waste. All manufactured items have a life cycle, which can range from days to decades, between manufacture and final disposal, recycling or incineration. There is no analysis in the literature review regarding how, when, and under what conditions “Plastic Manufactured Items” enter and become part of the plastic waste stream, and from there, how they become plastic pollution posing a risk to the environment.

Even in relation to macroplastic pollution, only a handful of items were connected to any risk of harm in the literature review. ECCC offers no explanation of how the potential risk of harm from a handful of types of macroplastic litter can ground the assertion that all “plastic manufactured items” pose a sufficient risk to the environment that they merit listing on Schedule 1. A manufactured item must first enter the waste stream, and then become litter, to even pose a potential risk to the environment.

Instead of analysis, all that is offered by ECCC is the assertion that 1% of the plastic waste generated annually in Canada becomes pollution. As set out above, this assertion is based on conjecture, unsupported by Canadian data, measurements or scientific study.

The precautionary principle cannot cure these failures. If it could, there would be no meaningful limits or bounds as to what could be characterized as “toxic” and added to CEPA Schedule I.

CEPA 1999 enshrines the precautionary principle in the preamble:

“Whereas the Government of Canada is committed to implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (CEPA 1999, emphasis added)

However, the precautionary principle only applies when there are “threats of serious or irreversible damage”. In such cases, a “lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.

The precautionary principle cannot be used, in place of evidence, to assert that a problem exists. Rather, the precautionary principle can be used to justify risk management measures, in relation to a problem that has been demonstrated to exist, but only where there are “threats of serious or irreversible damage”.

ECCC’s own policies on the application of precaution underscore that the evaluation of sound, scientific information must be the basis for applying the precautionary principle:

“It is particularly relevant that sound scientific information and its evaluation be the basis for (i) the decision to act or not to act (i.e. to implement precautionary measures or not) and (ii) the measures taken once a decision is made” (emphasis added)^{Footnote 39}

These policies make clear that the existence of a threat of serious or irreversible damage must be evidenced by a credible body of scientific evidence:

“In determining what constitutes a sufficiently sound or credible scientific basis, the emphasis should be on providing a sound and credible basis that a risk of serious or irreversible harm exists… [which] should be interpreted as a body of scientific information…that can establish reasonable evidence of a theory’s validity, including its uncertainties and that indicates the potential for such a risk.”^{Footnote 40}

They underscore that evidencing a threat of serious or irreversible damage requires sound scientific analysis of the body of the evidence, undertaken in a transparent and credible manner:

“Scientific data relevant to the risk must be evaluated through a sound, credible, transparent and inclusive mechanism leading to the conclusion that expresses the possibility of occurrence of harm and the magnitude of that harm (including the extent of possible damage, persistency, reversibility and delayed effect).^{Footnote 41}

Finally, the available scientific evidence must be evaluated in order to secure quality science, and to summarize not only the state of knowledge but “scientific views on the reliability of the assessment”, including areas of uncertainty:

“Available scientific information must be evaluated with emphasis on securing high quality scientific evidence (not quantity). Reports should summarize the existing state of knowledge, provide scientific views on the reliability of the assessment and address remaining uncertainties and areas for further scientific research or monitoring.”^{Footnote 42}

The Proposed Order, and the literature review supporting it, do not respect or apply any of these principles. They do not rest on scientific data, evaluated through sound, credible and transparent scientific analysis. They do not “evaluate the available scientific information” with a view to securing “high quality scientific evidence”, nor does it express scientific views on the reliability of the assessment, or express a conclusion regarding not only the possibility of harm but the magnitude of that harm. In short, the Proposed Order and literature review fail to establish a “threat of serious or irreversible damage” on the basis of science, or risk assessment.

On the contrary, the literature review does little more than catalogue the lack of evidence, the data gaps, and the lack of standardized methods, in relation to the problem of plastic pollution in the environment. It is precisely because of the lack of evidence and sound science that the literature review concedes that it is simply not possible to conduct a proper chemical risk assessment.

When “conducting and interpreting the results of” toxicity assessments, the Minister has a duty under CEPA section 76.1 to apply a “weight of evidence approach”, alongside the precautionary principle.^{Footnote 43}  Health Canada defines the weight of evidence approach as:

A qualitative measure that takes into account the nature and quality of scientific studies intended to examine the risk of an agent. Uncertainties that result from the incompleteness and unavailability of scientific data frequently require scientists to make inferences, assumptions, and judgements in order to characterize a risk. Making judgements about risk based on scientific information is called “evaluating the weight of evidence”^{Footnote 44}

The weight of evidence approach is the preferred tool for risk assessment. Meanwhile, ECCC policy describes the precautionary principle as the approach for risk management. This distinction is supported by various international authorities.^{Footnote 45}

The distinction is important here because risk assessment and risk management deal with two different types of uncertainty - only one of which invokes the precautionary principle. During risk assessment, uncertainty relates to whether or not risks exist (referred to here as “threshold uncertainty”).

During risk management (where, by definition, risks have already been identified) the uncertainty relates to the prevalence, severity and nature of identified risks (referred to here as “impact uncertainty”).

Because the precautionary principle presumes the existence of a risk, it is inappropriate to apply it during risk assessment, which is what has been done in relation to the Proposed Order. To do so presupposes the outcome, and (in the words of the European Science and Technology Observatory) confuses a state of “risk” with a state of “ignorance” - creating a “pretence at knowledge”.^{Footnote 46}

In conclusion, for the reasons set out above, we respectfully request that a Board of Review be convened under section 332(2) of CEPA 1999.

Yours very truly,

Gowling WLG (Canada) LLP

Harry Dahme
Certified Specialist (Environmental Law)

HJD:ac

cc:

Andrea Raper, Acting Executive Director
Program Development and Engagement Division, Department of the Environment
Email: andrea.raper@canada.ca

Ryan Parmenter, Director
Plastic and Marine Litter Division, Department of the Environment
Email: ec.plastiques-plastics.ec@canada.ca

Andrew Beck, Director
Risk Management Bureau, Department of Health
Email: andrew.beck@canada.ca

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