The Regulation of PFAS in Canada

Brief History

How long have PFAS and other related compounds been regulated in Canada? Months? Years? Decades?

It may surprise you to hear that PFAS and other related compounds have been regulated in Canada for many decades, since the inception of environmental laws at the provincial and federal levels.

PFAS were commonly found in AFFF

Most Canadian environmental laws are based on a pollution prohibition. As a starting point, it is typically a contravention of law to release a “contaminant” or “substance” in the natural environment in a manner that causes or may cause an “adverse effect” (each term in quotations and other similar terms have defined meanings across environmental statutes in each Canadian jurisdiction). With the pollution prohibition as a baseline, most environmental laws set out exceptions and permitting/approval pathways to regulate releases to the natural environment.

PFAS and other related compounds have always been a “contaminant” or “substance” (or other similarly defined term) subject to regulation. It is only more recently that science and public awareness have caught up and led to PFAS-specific regulations, in addition to the general prohibitions.

Shared Regulation

Jurisdiction over the natural environment is shared between the provincial and federal levels of government. Further, some provincial jurisdiction can and has been delegated to municipalities and other regulators created by provincial statute (e.g., conservation authorities in Ontario).

At the federal level, Environment and Climate Change Canada (ECCC) and Health Canada have been active in regulating PFAS and other related compounds in the context of drinking water and in the context of the manufacture, use, sale, offer for sale and import of PFAS in Canada. There are specified prohibitions and reporting requirements in force now relating to certain PFAS and related parameters. Most recently, the federal government has proposed deeming PFAS and other related substances, excluding fluoropolymers, as “toxic substances” based on their class. This, in turn, is part of the federal government’s approach to regulate the class of contaminants in a phased approach above and beyond the current regulatory requirements. Public comment about this proposed change concluded earlier this month.

Overview of the general structure of non-polymeric PFAS compounds

At the provincial level, some provinces have incorporated PFAS and other related compounds into legal standards applicable to soil, groundwater and/or surface water. Other provinces have issued guidelines or criteria in similar scenarios and also with regard to drinking water. These guidelines and criteria are not currently law but can guide decision making. Further, some provinces have begun to incorporate PFAS-related parameters into approvals or permits which apply specifically to the approval/permit holder at a given location.

PFAS Litigation

Litigation relating to PFAS and other related compounds is now becoming increasingly persistent (no pun intended).

Administrative tribunals and boards have begun issuing decisions regarding workers entitlement to compensation due to occupational exposure to PFAS. For example, the Veterans Review and Appeal Board has granted compensation to claimants on the basis that PFAS exposure over the course of their occupation led to adverse medical outcomes.

Provincial and federal regulators have begun using their enforcement tools (typically orders and prosecutions) to enforce PFAS-related non-compliances. For example, ECCC recently issued an Environmental Protection Compliance Order to a Canadian cosmetic manufacturer to stop marketing cosmetic products containing PFAS used to waterproof the cosmetic.

Civil litigation (i.e., lawsuits) relating to harms arising from the release of PFAS is also on the rise. There are many class action lawsuits that have been initiated across the country against manufacturers of PFAS and related compounds for alleged harm arising from the release of those compounds into the natural environment.

A Final Legal Thought

The evolution of law typically moves slower than advancements in science and technology. That said, the state of the law applicable to PFAS and related parameters is moving quickly (by legal standards) and trying to keep up with the applicable science. As we learn more about the detection of PFAS, treatment of PFAS, and the associated risks arising from PFAS, expect to see continued advancements in the law – both by regulation and through litigation.

For more information please contact Anand Srivastava, Partner, Willms & Shier Environmental Lawyers LLP at asrivastava@willmsshier.com.