PFOS Still Detected and Update on Litigation over Plastics Ban

Posted by on May 9, 2023 in Blog | 0 comments

Ontario’s Ministry of the Environment, Conservation and Parks (MECP) said that perfluorooctane sulfonate (PFOS) is still leaching from the Hamilton International Airport Property above the threshold numbers.  PFOS is one of the thousands of per- and polyfluoroalkyl substances (PFAS) that have been found around the world that pose potential harm to human health and environment.

PFOS at Hamilton Airport

Health Canada states that the maximum acceptable concentration for PFOS in drinking water is 0.6 parts per billion (ppb).  Health Canada is proposing a limit of 30 parts per trillion [ppt] (.03 ppb) for any detectable PFAS in drinking water sources.

According to the CBC, PFOS was initially discovered at the airport in 2011.  Since it was discovered at the airport, several mitigation efforts have been implemented, including dewatering and decommissioning an existing stormwater retention pond and installation of a permeable soil cap over the pond and ditches.


Airports, because they used Aqueous Film Forming Foam or AFFF, are a prime source for certain PFAS (Photo by Ivan Shimko on Unsplash).

Gary Wheeler (MECP) said that the Ontario government is working with the federal government and other provinces on detailing new Canadian guidelines for PFAS after the United States Environmental Protection Agency (USEPA) announced it will be lowering the PFAS levels in drinking water.  Mr. Wheeler said, “We will consider the approaches of the Canadian government and the U.S. Environmental Protection Agency once they have been finalized.”

The USEPA has recently proposed maximum contaminant levels for six PFAS as low as 4 ppt.

Challenging the Plastics Ban in Canada

Updating our previous blogs regarding Canada’s designation of plastics as a toxic substance (under the Canadian Environmental Protection Act or CEPA) and subsequent ban of certain plastics, a case was heard in early March.

In our August 30, 2022, blog, we reported that a coalition of plastics companies sued to block Canada’s ban on six single-use plastic products, challenging Ottawa’s decision to declare them toxic and prohibit them.

As reported by the law firm, Fasken, The Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil, and Nova Chemicals Corporation “are seeking to have the order dated May 12, 2021, to add plastic manufactured items to Schedule 1 of the Canadian Environmental Protection Act (1999) as a toxic substance, rescinded…”

Plastics as Toxic is Unreasonable and Illogical

From the Fasken blog, “According to the applicants, plastic manufactured items do not meet the interpretation of ‘substance’ or ‘class of substances’ under section 3 of the CEPA.  Plastic manufactured items are, in their view, too broad a group of materials to fall under these definitions.  Moreover, the federal government did not demonstrate the toxic nature of plastic manufactured items, relying solely on a literary review and a study by an accounting firm.”

The study referred to was conducted in 2019 by Deloitte (see Economic Study of the Canadian Plastic Industry, Markets and Waste).

Under CEPA, both the Minister of Environment and Climate Change and the Minister of Health are responsible for developing a list of substances which must be assessed in a timely manner to determine if they are “toxic” or capable of becoming “toxic.”

Fasken reports that the plaintiffs argue that the Order designating plastics as toxic is unreasonable due to its irrational and illogical nature.  The Order specifically equates all plastic products as toxic substances, which puts hundreds, if not thousands, of everyday products on the list of toxic substances, including numerous harmless products.  The plaintiffs also consider it illogical to subject the finished product (to regulation under CEPA), i.e. the plastic items, but not the raw materials used to produce these items.

Attorney General of Canada

The Attorney General of Canada responded that the interpretation of substance in the CEPA is very broad, including “any matter that is capable of being dispersed in the environment or of being transformed in the environment into matter that is capable of being so dispersed or that is capable of causing such transformations in the environment” and that plastic manufactured items would meet this interpretation.

The blog by Fasken covers this case in much more detail.

If you need help with an environmental matter, contact Christopher Paré, P.Geo., Q.P. at 519-979-7300, Ext 114.

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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