There has been increasing attention, regulation and litigation regarding a family of over 5,000 manufactured chemicals (per- and polyfluoroalkyl substances or PFAS) found in everyday products. Although there is still considerable uncertainty as to environmental and health implications of PFAS, the crackdown on these chemicals in other jurisdictions suggests we may soon see the same in Canada.
PFAS are found in products such as waterproofing and cleaning products, non-stick cookware, paints, and firefighting foam. Human health and environmental concerns have been associated with their manufacture, use and dispersion in the environment. Often called "forever chemicals," PFAS take a long time to break down in the environment, can migrate through soil and groundwater and have been linked to adverse health effects such as cancer.
LESSONS FROM THE U.S. AND AUSTRALIA
So far, there has been more focus on PFAS in the U.S. and Australia by regulators and citizens than in Canada. As with other emerging contaminants of concern, it is likely Canada will follow the trends in these countries.
The U.S. Environmental Protection Agency (EPA) has been dealing with PFAS for nearly 20 years, after finding PFAS in blood samples. Although there have been voluntary phaseouts of some of the chemicals in this family, some are still in circulation. PFAS have contaminated the environment and drinking water and have been found at many sites.
The EPA has developed a PFAS Action Plan, which describes the EPA's approach to addressing existing PFAS contamination. Early this year, the EPA proposed regulatory determinations for certain PFAS chemicals in drinking water. The EPA has also issued recommendations for addressing groundwater contaminated with PFAS at sites requiring remediation under the Comprehensive Environmental Response, Compensation and Liability Act and is taking steps to designate certain PFAS chemicals as "hazardous substances" under this act. Currently, there are hundreds of lawsuits in the U.S. regarding the use and manufacture of PFAS, including class actions related to drinking water contamination.
Australia has taken a number of steps to address PFAS, including an intergovernmental agreement between the federal, state and territorial governments to ensure a consistent response to contamination. The country has implemented various guidelines and protocols to guide government agencies involved in remediating PFAS contamination across the country.
Australia has also seen numerous lawsuits, including legal actions related to drinking water and property contamination. The government recently reached a settlement of A$212-million with several communities whose groundwater was contaminated by firefighting foam.
PFAS contamination has also affected infrastructure projects. For example, there were major delays to the construction of the Westgate Tunnel in Melbourne after PFAS was discovered. This has also led to increased clean-up costs.
THE CANADIAN APPROACH
The Canadian federal government has assessed PFAS and determined that certain chemicals in the PFAS family could be entering the environment under conditions that may have immediate or long-term adverse effects. Canada introduced federal regulations restricting the use, sale and import of perfluorooctanoic (PFOS) and PFOS-containing products in 2008 and has since extended this prohibition to include the manufacture and sale of such products, albeit with significant exceptions. The use, manufacture and import and sale of many other PFAS chemicals are currently unregulated.
Health Canada introduced drinking water guidelines for various PFAS chemicals in 2018, followed by soil-screening values, noting that PFOS may be found in surface and groundwater contaminated by firefighting foam, discharges from industrial facilities and effluent from water treatment facilities. PFOS may also impact surface water from air emissions from industrial facilities.
Concerns over PFAS have also resulted in regulatory action related to contaminated sites. In 2017, British Columbia added standards for three PFAS chemicals to the Contaminated Sites Regulation, including them in the regulatory scheme for contaminated sites in B.C. Ontario has recently added toxicity reference values for 11 PFAS chemicals and has indicated that risk assessments involving PFAS will be treated as new science risk assessments that include a more complex and time-consuming process.
The lack of comprehensive regulation in Canada has not deterred litigation. Several residents of a community near the National Fire Laboratory in Ontario (where firefighting foam was being tested) sued the National Research Council after drinking water was contaminated by PFAS compounds.
THE FUTURE OF PFAS IN CANADA
As new scientific information emerges and regulation evolves, public concern continues to grow, and further litigation is likely to follow. To mitigate potential risk, Canadian companies should conduct an internal audit of PFAS use, disposal and potential contamination. Audits and investigations can be initiated by counsel (to maintain privilege and confidentiality). The investigation/audit can then be used to assess the current and potential future risks and costs to the company and to strategize options to manage these risks and costs.
Companies buying and selling property should be aware that remediation standards for PFAS are relatively new in B.C. and are being considered in other provinces. Caution should be taken relying on existing environmental due diligence reports as many will not likely consider PFAS as a contaminant of concern. At the very least, those involved in real estate transactions should consider PFAS contamination when conducting due diligence and in the allocation of risk in sale agreements.
PFAS should also be considered as a risk for construction and infrastructure projects and real estate developers, as the discovery of contamination can cause serious delays and increase costs, as was seen with the Westgate Tunnel in Australia.
Those who use PFAS in their products or processing should also assess and address their risk. In the U.S., there have been legal actions against PFAS manufacturers and secondary users of PFAS.
Increasing attention and regulation over PFAS is likely to affect a wide range of companies and industries, including manufacturers and users of products containing PFAS, developers, landfill owners and operators, industrial facilities discharging air contaminants or wastewater and facilities such as military bases and airports.
Canadian companies would be wise to assess their exposure to this risk and begin preparing strategies and mitigation measures.
For permission to reprint articles, please contact the Blakes Marketing Department.
© 2020 Blake, Cassels & Graydon LLP.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.