Canada Gazette, Part I, Volume 154, Number 41: Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999

October 10, 2020

Statutory authority
Canadian Environmental Protection Act, 1999

Sponsoring departments
Department of the Environment
Department of Health

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Plastic manufactured items that are released into the environment outside of a managed waste stream, or that enter a managed waste stream but are accidentally released into the environment, constitute plastic pollution. Current scientific evidence confirms that plastic pollution is ubiquitous in the environment, and that macroplastic pollution poses an ecological hazard, such as physical harm to some animals and their habitat. Current scientific literature also suggests that microplastic pollution may pose an ecological hazard to some animals, though further research is needed. In order to address the potential ecological risks associated with certain plastic manufactured items becoming plastic pollution, the Minister of the Environment and the Minister of Health (the ministers) are recommending to the Governor in Council to make an order adding “plastic manufactured items” to Schedule 1 (i.e. the List of Toxic Substances) to the Canadian Environmental Protection Act, 1999 (CEPA or the Act), in accordance with the precautionary principle.

Background

Description

Broadly speaking, plastics (which are the main ingredients in the manufacture of plastic items) are materials that can be created from a wide range of synthetic or semi-synthetic organic compounds. Plastics are formed from long-chain polymers of high molecular mass and often contain chemical additives. Different polymers can be manufactured using different compositions of petroleum products, plant-based starting material, or recycled and recovered plastics.

Plastic manufactured items are any items made of plastic formed into a specific physical shape or design during manufacture, and have, for their intended use, a function or functions dependent in whole or in part on their shape or design. They can include final products, as well as components of products. All plastic manufactured items have the potential to become plastic pollution.

Plastic pollution is often categorized by size in the scientific literature. Individual pieces of plastic that are less than or equal to 5 mm in size can be defined as microplastics, while those that are greater than 5 mm in size can be defined as macroplastics. Microplastic pollution can be primary (smaller items that are manufactured to be that size), or secondary (smaller items resulting from the breakdown of larger plastic manufactured items).

Uses

Plastic manufactured items are a part of the everyday lives of Canadians and support economies around the world. Since the 1950s, the production and uses of plastics (to form plastic manufactured items) have increased at a faster rate than those of any other manufactured material, due to properties such as their versatility, durability, low cost, inert nature (i.e. non-chemical reactivity) and benefits to human health (e.g. in food and medical supplies packaging).

In order to better understand the quantities, uses, and end-of-life management of plastic manufactured items in the Canadian economy, the Department of Environment (the Department) commissioned the Economic Study of the Canadian Plastic Industry, Market and Waste: Summary Report to Environment and Climate Change Canada (the Commissioned Study), which was published in 2019. The Commissioned Study found that the majority of plastic manufactured items in Canada are concentrated in a number of sectors. The percentage of plastic manufactured items and corresponding amount of plastic waste generated by each of these sectors is detailed in Table 1.

Table 1: Share of end-use plastic market in 2016 by sector and examples of plastic manufactured items
Sector Share of End-use Plastic Market (%) Plastic Waste (kt) Share of Plastic Waste (%) Examples of Plastic Manufactured Items
Packaging 33 1 542 47 Bags, drink bottles, toiletries, pharmaceutical product packaging
Construction 26 175 5 Siding, window applications, floor and wall coverings, thermal insulation, pipes and pipe fittings, glass substitutes, reconstituted wood, plywood
Automotive 10 309 9 Interior trims, seats, seat parts, body panels
Electronic and electrical equipment 6 214 7 Electric wires, cables, computer and phone parts
Textile 6 235 7 Carpets, rugs, mats, clothing
White goods (electric domestic appliances) 3 130 4 Major and small appliances, such as fridges, stoves, food processors, electric kettles
Agriculture 1 45 1 Fertilizer and pesticide packaging
Other 15 617 19 Chemical products, toys, household furniture

Sources of release

In Canada, the majority of plastic manufactured items that become plastic waste enter a managed waste stream (i.e. intended for landfilling, recycling, or incineration). Plastic waste that is released into the environment outside of a managed waste stream, or that enters a managed waste stream but is accidentally released into the environment, constitutes plastic pollution. The Commissioned Study estimated that the total amount of plastic waste generated in Canada in 2016 was 3 268 kilotonnes (kt), of which 2 795 kt (86%) ended up in a landfill, 305 kt (9%) was recycled, 137 kt (4%) was incinerated, and 29 kt (1%) was released into the environment as plastic pollution.

Plastic manufactured items can be released into the environment as plastic pollution through a wide range of activities including littering, environmental emergencies (e.g. flooding events), and through the wear and tear, abrasion, or maintenance of certain items. They can also be accidentally released into the environment while moving through a managed waste stream, for example by falling out or being blown away during transport, transfer, or processing, or due to inadequate waste, wastewater, and stormwater management practices. Plastic pollution can be released into terrestrial or aquatic environments and can move from one to the other over its lifetime.

Risk management activities

National

Plastic manufactured items encompass a wide range of product categories within many sectors of the plastics end-use market, some of which may already be subject to federal risk management activities. For example, aspects of plastic manufactured items relating to consumer safety, energy efficiency, and human health may already be regulated under various Acts of Parliament footnote 1. Limited federal risk management exists for plastic manufactured items with respect to environmental protection, with one example being the Microbeads in Toiletries Regulations, enacted under CEPA, that prohibit the manufacture, import, and sale of toiletries containing plastic microbeads.

Other jurisdictions in Canada are currently taking a range of actions consistent with the Strategy on Zero Plastic Waste of the Canadian Council of Ministers of the Environment. For instance, recycling systems that process plastic waste exist in all provinces, and some domestic jurisdictions have established or are developing requirements to make producers responsible for the collection of the products and packaging they place on the market. Some domestic jurisdictions at the provincial or municipal level have announced local prohibitions or restrictions on certain single-use plastics, such as plastic bags.

These provincial and municipal risk management measures were designed and implemented to address jurisdictional waste reduction and waste management needs, and thereby result in strictly localized impacts. There is currently no existing Canada-wide integrated management of plastics that cover a range of lifecycle stages (e.g. design and manufacture, import, use, waste management) and different plastic sectors (e.g. packaging, single-use items).

International

Several international jurisdictions are pursuing measures to address plastic pollution. For example, the European Union (EU) adopted a directive to prevent production of packaging waste and to promote the reuse, recycling, and other forms of recovering packaging waste, alongside another directive to ban nine single-use plastic items for which alternatives exist on the market (e.g. cutlery, plates, beverage stirrers, and cotton bud sticks). Germany and France, in particular, are leading the way with national bans on several single-use plastic manufactured items. The United States does not have any federal laws or requirements for plastic waste, recycling, or extended producer responsibility, though many individual states (e.g. California, Maine) have implemented waste reduction and recycling programs concerning plastic products and packaging, and eight states thus far have passed bans on single-use plastic bags footnote 2. Other international jurisdictions, notably Australia and China, have announced actions such as sector-based targets for plastic waste.

Science assessment of plastic pollution

On October 7, 2020, a science assessment of plastic pollution was published on the Canada.ca (Chemical Substances) website. The purpose of the assessment was to summarize the current state of the science regarding the potential impacts of plastic pollution on the environment and human health, as well as to inform future research and decision making on plastic pollution in Canada footnote 3. The science assessment recommends pursuing action to reduce macroplastics and microplastics that end up in the environment, in accordance with the precautionary principle.

Summary of the state of the science with respect to the environment

The degradation of plastic pollution in the environment can be a slow chemical and physical process, influenced by factors such as exposure to sunlight, oxidants, physical stress and the chemical composition of the specific plastic item. Many plastic manufactured items identified as “biodegradable” only break down when exposed to high temperatures for prolonged periods that are only achievable in industrial composting facilities.

Studies have confirmed the widespread occurrence of plastic pollution in many aquatic and terrestrial environments around the globe, including surface waters, sediments, and shorelines. For example, in Canada, studies have found an abundance of plastic pollution in surface waters and sediments within the Great Lakes, as well as in Arctic surface waters and in sea ice. Plastic pollution has also been detected in several international study locations, including the Adriatic Sea, the South Pacific, the North Pacific, the North Atlantic, the South Atlantic, the Indian Ocean, and in the waters surrounding Australia. In 2018, the Great Canadian Shoreline Cleanup removed over 100 tonnes of litter from Canadian shorelines, with 7 out of the top 10 most commonly collected items either being made of plastic or containing plastics (cigarette butts, tiny plastics or foam, bottle caps, plastic bags, plastic bottles, straws, and food wrappers).

Certain types of macroplastic pollution (e.g. ropes, nets, cable ties, plastic bags, packaging rings) have been widely reported in the scientific literature to exhibit adverse effects on some animals through entanglement. It has also been observed that large pieces of plastic pollution (e.g. bags, sheets, films) can smother marine plants, sponges, and coral, affecting biological processes such as photosynthesis. In addition, the scientific literature depicts that macroplastic pollution has been found in the gastrointestinal tracts of several marine species all around the world, which has been linked to several adverse ecological impacts such as organ damage and starvation from blocked intestinal systems. Macroplastic pollution can also impact the integrity of habitats, for example by transporting non-native species, invasive species, or species containing diseases into well-established ecosystems, disrupting their structures and dynamics. In contrast to macroplastic pollution, the potential impact of microplastic pollution on animals is less understood in the scientific literature.

Summary of the state of the science with respect to human health

Exposure to macroplastics (as pollution or otherwise) is not expected to be of concern for human health. There is some scientific literature to suggest that humans may be exposed to microplastics through the inhalation of air, and the ingestion of food and drinking water. The potential hazards of microplastics from inhalation remain uncertain, and there is need for further research in this area. Current knowledge of the occurrence of microplastic particles in food is limited, with little to no Canadian data. The World Health Organization carried out an assessment of human exposure to microplastic particles in drinking water, and the Food and Agriculture Organization of the United Nations and the European Food Safety Authority conducted similar assessments of exposure to microplastic particles in seafood, which concluded that potential ingestion of chemicals associated with microplastics is of low concern for human health. Although the current literature does not identify a concern for human health with respect to microplastics, there is need for further research in this area.

Objective

The objective of the proposed Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999 (the proposed Order) is to add “plastic manufactured items” to Schedule 1 to CEPA. The proposed Order would enable the ministers to propose risk management measures under CEPA on certain plastic manufactured items in order to manage the potential ecological risks associated with those items becoming plastic pollution.

Description

The proposed Order would add “plastic manufactured items” to Schedule 1 to CEPA.

Regulatory development

Consultation

From April 2018 to May 2020, the Government of Canada undertook broad stakeholder engagement on achieving zero plastic waste. During that period and across those engagements, the Department received input from multiple stakeholder groups (e.g. industry, industry associations, non-government organizations, provinces, territories, the general public) on options, barriers, and solutions to achieve zero plastic waste in Canada, including adding a substance relating to plastics to Schedule 1 to CEPA. The Department consulted on various policy initiatives through

Other engagement activities included public calls for input, two industry sector webinars, workshops, meetings, teleconferences, and presentations to industry stakeholders across the entire plastics value chain.

On February 1, 2020, the ministers published a notice with a summary of the draft science assessment of plastic pollution (which included a link to the complete draft assessment) in the Canada Gazette, Part I, for a 60-day public comment period, which was extended until May 1, 2020, in light of the novel coronavirus (COVID-19) pandemic. Over 70 comments were received from different stakeholder groups, including over 50 from businesses and industry associations. Several of these comments related to potential risk management measures, and will be considered in the event that the ministers propose to develop such measures. A table summarizing all comments received and the departments’ responses to those comments is available on the Canada.ca (Chemical Substances) website.

Of the comments pertaining to a potential new addition to Schedule 1 to CEPA, some industry stakeholders expressed concerns with adding a substance relating to plastics, arguing that such an addition could lead to the stigmatization of plastics in the Canadian economy. Other stakeholders questioned whether enough evidence had been presented in the draft science assessment of plastic pollution to warrant adding a substance to Schedule 1 to CEPA, and expressed concerns regarding subsequent use of the regulatory authorities for controlling toxic substances, under Part 5 of CEPA, to address plastic pollution. These stakeholders argued that a Schedule 1 listing could lead to the over-regulation of the plastics value chain in Canada.

The Department acknowledges the concerns and suggestions raised by stakeholders, and considered all comments received, except those pertaining to risk management, in the development of the proposed Order. Since the proposed Order would not introduce new regulatory requirements, consideration of potential impacts to plastics-related industries and the broader Canadian economy would occur only in the event that the ministers propose risk management measures for plastic manufactured items (as discussed in the “Benefits and costs” paragraph below). Additionally, the Department maintains that the science assessment of plastic pollution provides the ministers with the evidence to recommend the addition of “plastic manufactured items” to Schedule 1 to CEPA in accordance with the precautionary principle, which would be consistent with the recommendation from the science assessment to take action to address plastic pollution.

On October 7, 2020, the Department published a discussion paper entitled A Proposed Integrated Management Approach to Plastic Products to Prevent Waste and Pollution to engage with stakeholders on the design and implementation of potential risk management measures for certain plastic manufactured items, including regulatory instruments to ban single-use plastic items that cause harm to the environment, where warranted and supported by scientific evidence.

Modern treaty obligations and Indigenous engagement and consultation

The assessment of modern treaty implications conducted in accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation concluded that orders making additions to Schedule 1 to CEPA do not impose any new regulatory requirements, and, therefore, do not result in any impact on modern treaty rights or obligations. As a result, specific engagement and consultations with Indigenous peoples were not undertaken. However, the prepublication comment period, which is open to all Canadians, is an opportunity for Indigenous peoples to provide feedback on the proposed Order. In the event that the ministers propose risk management measures for plastic manufactured items, the departments would assess any associated impact on modern treaty rights or obligations, and requirements for Indigenous engagement and consultations, during the development of such measures.

Instrument choice

The Government of Canada has initiated a comprehensive agenda to achieve zero plastic waste and eliminate plastic pollution by 2030, which will require implementing a range of risk management measures. The Department determined that non-regulatory measures (e.g. voluntary agreements, guidelines, codes of practice) alone would not be sufficient to implement this agenda, and that regulatory measures would also be required.

The addition of a substance to Schedule 1 to CEPA enables the ministers to propose risk management measures. A substance may be listed if it is found to meet any of the criteria set out in section 64 of the Act (i.e. if the substance poses a risk to the environment, human health, or both). The science assessment of plastic pollution provided the ministers with the evidence to recommend adding “plastic manufactured items” to Schedule 1 to CEPA, an action which would help address the potential ecological risks associated with plastic manufactured items becoming plastic pollution. The use of CEPA over other existing Acts of Parliament would enable the ministers to access the full range of authorities needed to manage plastic manufactured items along their entire lifecycle. Therefore, adding “plastic manufactured items” to Schedule 1 to CEPA is the preferred option.

The addition of “plastic manufactured items” to Schedule 1 to CEPA would be made in accordance with paragraph 2(1)(a) of the Act, which requires the Government of Canada to exercise its powers in the administration of the Act in a manner that

Regulatory analysis

Benefits and costs

The addition of “plastic manufactured items” to Schedule 1 to CEPA would not on its own impose any regulatory requirements on businesses or other entities, and would therefore not result in any incremental compliance costs for stakeholders or enforcement costs for the Government of Canada. The proposed Order would grant the ministers the authority to develop risk management measures under CEPA for plastic manufactured items. If pursued, these measures could result in incremental costs for stakeholders and the Government of Canada. In the event that the ministers propose risk management measures for plastic manufactured items, the departments would assess their benefits and costs, and would conduct consultations with stakeholders, Indigenous peoples, the public, and other interested parties during the development of such measures.

Small business lens

The small business lens analysis concluded that the proposed Order would have no associated impact on small business, as it does not impose any administrative or compliance costs on businesses. In the event that the ministers propose risk management measures for plastic manufactured items, the departments would assess any associated impact on small businesses during the development of such measures.

One-for-one rule

The one-for-one rule does not apply to the proposed Order, as there are no incremental changes in administrative burden imposed on businesses. In the event that the ministers propose risk management measures for plastic manufactured items, the departments would assess any associated administrative burden during the development of such measures.

Regulatory cooperation and alignment

The proposed Order would not directly relate to any domestic or international agreements or obligations. The proposed Order would enable the ministers to propose risk management measures that could align and complement actions undertaken by provincial, territorial, and municipal governments toward a coordinated effort to achieve zero plastic waste and eliminate plastic pollution by 2030.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a strategic environmental assessment (SEA) was completed for the Government of Canada’s comprehensive zero plastic waste agenda. The analysis concluded that the full implementation of this agenda will have a significant positive effect on the environment and on Canada’s ability to deliver on its Federal Sustainable Development Strategy, Canada-wide Strategy on Zero Plastic Waste, and commitments under the Ocean Plastics Charter. The SEA found that inaction, or limited action, can have significant negative impacts on the environment, including increased stresses on marine life, compromised economic viability of municipal recycling, and increased stress on Canada’s limited landfill disposal capacity.

Gender-based analysis plus

The gender-based analysis plus (GBA+) assessment concluded that the proposed Order would not affect socio-demographic groups (based on factors such as gender, sex, age, language, education, geography, culture, ethnicity, income, ability, sexual orientation, or gender identity), as it would not introduce new regulatory requirements.

Implementation, compliance and enforcement, and service standards

As no specific risk management measures are recommended as part of the proposed Order, developing an implementation plan and a compliance and enforcement strategy, as well as establishing service standards, are not necessary at this time. In the event that the ministers propose risk management measures for plastic manufactured items, the departments would assess these elements during the development of such measures.

Contacts

Andrea Raper
Acting Executive Director
Program Development and Engagement Division
Department of the Environment
Gatineau, Quebec
K1A 0H3

Substances Management Information Line:
1‑800‑567‑1999 (toll-free in Canada)
819‑938‑3232 (outside of Canada)
Fax: 819‑938‑5212
Email: eccc.substances.eccc@canada.ca

Jacinthe Séguin
Director
Plastic and Marine Litter Division
Department of the Environment
Gatineau, Quebec
K1A 0H3
Telephone: 819‑938‑4500
Fax: 819‑938‑4553
Email: ec.plastiques-plastics.ec@canada.ca

Andrew Beck
Director
Risk Management Bureau
Department of Health
Ottawa, Ontario
K1A 0K9
Telephone: 613‑948‑2585
Fax: 613‑952‑8857
Email: andrew.beck@canada.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 332(1) footnote a of the Canadian Environmental Protection Act, 1999 footnote b, that the Governor in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 90(1) of that Act, proposes to make the annexed Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999.

Any person may, within 60 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Order or a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to the Executive Director, Program Development and Engagement Division, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819‑938‑5212; email: eccc.substances.eccc@canada.ca).

A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, October 5, 2020

Julie Adair
Assistant Clerk of the Privy Council

Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999

Amendment

1 Schedule 1 to the Canadian Environmental Protection Act, 1999 footnote 4 is amended by adding the following in numerical order:

Coming into Force

2 This Order comes into force on the day on which it is registered.