Coalition of plastic industry members challenge designation of ‘Plastic Manufactured Items’ as toxic under CEPA

On May 18, 2021, the Responsible Plastic Use Coalition (RPUC or Coalition) filed a notice of application with the Federal Court alleging that the designation of manufactured plastic items as a "toxic substance" under the Canadian Environmental Protection Act (CEPA 1999) is unconstitutional and scientifically inaccurate.

A group of 27 plastic manufacturers, recyclers, and  distributors filed a notice of application with the Federal Court just six days after the designation. The Coalition bases their application for judicial review of the Order on three grounds:

• Unconstitutional: The Coalition argues that the designation is contrary to federal criminal power, as "plastic manufactured items” is an "impermissibly broad term” that lacks the precision necessary for criminal prohibitions.
• Unrelated: The applicants claim that the category of "plastic manufactured items” fails to meet CEPA’s definitions of "substance” and "toxic”. The statutory definition of "substance” is limited to singular items, they assert, rather than a broad descriptive category.
• Unreasonable: Finally, the Coalition asserts that the designation is based on conjecture, not evidence. For example, they claim that there is limited data to establish that 1% of all plastic waste becomes pollution.

Following the October 2020 announcement of the federal government's intent to add plastic manufactured items to Schedule 1 of CEPA, at least 60 notices of objection were submitted by industry in response to the proposed order.

While the designation of plastics as toxic is not directly related to the water and wastewater industry, it will have far reaching consequences, especially as we learn more about the impact of microcontaminants from degrading plastics on the aquatic environment and consequences for wastewater treatment. Plastic is also ubiquitous in the industry, from piping to chemical storage and transportation, and alternatives need to be safe and effective.

Canadian Water and Wastewater Association