The global concern over the human health and environmental impact of the class of chemicals known as per- and polyfluoroalkyl substances (PFAS) is leading to more regulations and litigation. Below, we provide an update on PFAS, which has the potential to affect a wide range of companies.
Interim PFAS Standards for Biosolids in Canada
First, an update with respect to PFAS in biosolids.
Earlier this year, the Canadian Food Inspection Agency (CFIA) announced plans to implement an interim standard for PFAS in biosolids used as fertilizers, set at 50 parts per billion (ppb).
According to CFIA, “Preliminary analysis of PFAS content in Canadian biosolids (based on results from both government monitoring and voluntary testing performed by industry), indicate that over 90% of all Canadian-produced biosolids contain less than 50 ppb of PFOS” (perfluorooctane sulfonic acid). There was no mention of other PFAS chemicals tested in the biosolids.
The proposed interim standard according to CFIA, “is not anticipated to negatively impact the vast majority of domestic biosolids and, therefore, cause minimal disruption to waste-diversion efforts across Canada.”
Mandatory Collection of Data
As we shared in our June 6, 2023, blog the Draft State of Per- and Polyfluoroalkyl Substances Report by Environment and Climate Change Canada and Health Canada is proposing that the entire class of PFAS should be considered “toxic substances” pursuant to the Canadian Environmental Protection Act (CEPA).
According to a blog by BLG, “Various data collection initiatives are planned to address (the data) gaps, including the issuance of a mandatory information gathering notice” (under CEPA). They go on to write, “The proposed timing of the data collection initiatives and other proposed regulatory activity arising from the draft state of PFAS report and the risk management report” will include…a mandatory information gathering notice to be issued in Fall 2023.
The BLG blog concludes with “Given its lack of PFAS production, Canada is unlikely to see PFAS-related litigation reach anywhere near the levels seen in the U.S. Notwithstanding, as awareness of the negative implications of these chemicals by both governments and consumers increases, readers can expect to continue to see a corresponding increase in litigation pertaining to the environmental and human health-related impacts of PFAS. Insurers and policyholders alike should also recognize these risks and carefully review all relevant insurance policies.”
PFAS View from Underwriters
An article in Canadian Underwriters (Forever chemicals: Is PFAS litigation coming to Canada?) discusses some of the risks associated with PFAS and the thousands of lawsuits filed in the United States, including the 3M $10.3 billion lawsuit.
In the article they quote Johanne Desloges, head of commercial and surety claims at Aviva Canada: “Most of the litigation is taking place within the manufacturing space and with your large manufacturers [but] it’s actually starting to permeate into other industries…Industries at high risk of PFAS litigation include manufacturing, oil and gas, utilities, mining, transportation and government.” Deslonges also said, “Even grocery store chains aren’t immune, and Kroger in the States was sued for carrying products that contain PFAS.”
(For information on human biomonitoring for PFAS see “Per-and polyfluoroalkyl substances (PFAS) in Canadians” from Health Canada).
PFAS are prevalent around the globe. Increasingly, environmental regulators are developing reporting obligations and lawsuits can reach billions of dollars (Image Credit: S.C. Department of Health and Environmental Control).
Canadian Class Action
There have been class actions filed in Canada. For example, in July 2021, a class action was filed against the National Research Council of Canada. The complaint states that a local fire research lab polluted their drinking water (with PFAS) and devalued their homes.
Large US Class Actions
With respect to litigation in the US that was referenced in the article, one year ago, the State of California named more than 100 PFAS manufacturers in a PFAS Lawsuit. Fast food giants McDonalds and Burger King have been sued over PFAS in food packaging. Another lawsuit named the maker of disposable plates, Chinet in a PFAS lawsuit.
In Ohio, a federal judge ruled that ALL Ohio residents who have, small amounts of PFAS in their blood as a class eligible to pursue a suit against chemical manufacturers. With something like 97% of the US population with PFAS in their bloodstream, this is significant. See our US Blog PFAS: Massive Class Action, Due Diligence, and PFAS in Containers.
Recently, a federal judge allowed more than 100,000 North Carolina residents and property owners to bring claims over toxic water pollution against E.I. du Pont de Nemours and Co and The Chemours Co. as a class action (Source: Reuters).
Moderate Risk – Low Risk for PFAS Litigation
The article regarding the risk of PFAS litigation in Canada in Canadian Underwriter assigns a moderate risk of seeing PFAS litigation to the retail/wholesale, warehouse, business and services, agriculture, health, and construction industries.
They assign a low risk of PFAS litigation to hospitality, amusement, fishing/hunting, and education.
They also advise companies that are potentially vulnerable to PFAS litigation to “begin planning how to protect themselves from litigation. The best way is to stay informed about and investigate PFAS sources.”
For example, they suggest you look at materials that you use to see if they contain PFAS and suggest you find alternatives, if possible. They also state that companies should also consider, among other things using “due diligence when selling or acquiring land.”
For more information on PFAS, see Dragun’s PFAS Resource Page.
If you have questions about PFAS or need assistance with an environmental matter, contact Christopher Pare’, P.Geo. Q.P. at 519-948-7300, Ext. 114.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes HazMat Magazine, BizX Magazine, Michigan Lawyers Weekly, GreenStone Partners, Manure Manager Magazine, and Progressive Dairy.
This blog was reviewed by Christopher Paré, P.Geo. Chris is a senior geoscientist and manager of Dragun’s Windsor, Ontario, office. Chris has more than 30 years of experience on projects ranging from environmental site assessments (Phase One/Two ESA), excess soils, remedial investigations, soil and groundwater remediation, Permits to Take Water, Records of Site Conditions, vapour intrusion, and site decommissioning. Chris is a frequent speaker, author, and expert witness. See Chris’ bio.
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