Environment Canada’s State of PFAS Report: insights into the future regulation of “forever chemicals”

Environment Canada’s State of PFAS Report: insights into the future regulation of “forever chemicals”

The Government of Canada has published its long anticipated Draft state of per- and polyfluoroalkyl substances (PFAS) report (the “Draft State of PFAS Report”) and a companion document, Risk management scope for the class of per- and polyfluoroalkyl substances (PFAS) (the “Risk Management Report”).[1] The report arises from the Federal Government’s 2021 announcement to research and monitor PFAS substances, collect and examine information on PFAS substances, and review policy developments in other jurisdictions.[2]

PFAS substances continue to attract global attention for their potential harm to human health and the environment. Commonly known as “forever chemicals”, PFAS are a group of several thousand man-made chemicals that break down at a very slow rate and have the ability to bio-accumulate. Due to their widespread use, PFAS are commonly found in the bloodstream of people as well as animals.[3]

In the past decade, regulators around the world have taken steps to slow or eliminate the use of PFAS in consumer and industrial products.[4] While the regulation of PFAS in Canada has yet to catch up with other jurisdictions such as the United States and the European Union, the publication of the Draft State of PFAS Report marks a good step toward the development of additional PFAS regulations in Canada.

For additional background information regarding the history of PFAS regulation in Canada and some insight into the United States and the European Union’s regulation of these products, please read our previous bulletin Canada Catching Up on Regulation of PFAS Substances.

Draft State of PFAS Report

Currently, the Prohibition of Certain Toxic Substances Regulations, 2012 under the Canadian Environmental Protection Act, 1999 (“CEPA”) prohibits certain PFAS substances and their precursors, including perfluorooctane sulfonate (“PFOS”), perfluorooctanoic acid (“PFOA”), and perfluorocarboxylic acids (“LC-PFCAs”) from being manufactured, used, sold, offered for sale or imported into Canada. Last year, Canada published the Prohibition of Certain Toxic Substances Regulations, 2022 to replace the current regulations, which would remove exemptions to the regulations for certain uses involving fire-fighting foam, photolithography and photographic film as well as where the presence of the substance is incidental.[5] The timing for enactment of this regulation has not yet been announced.

The Draft State of PFAS Report proposes to conclude, in the final version of the report, that the class of PFAS substances meets two of the three criteria defining a “toxic substance” under section 64 of CEPA.[6] First, the report provides that PFAS substances meet the criterion under section 64(a) where substances are or may enter the environment in an amount that could have immediate or long-term harmful effects on the environment or its biological diversity.[7] Second, the report proposes that PFAS substances meet section 64(c) because they may enter the environment in a way that constitutes, or may constitute, a danger in Canada to human life or health.[8]

The Federal Government is proposing a precautionary, class-based approach where future measures will apply to all substances under the PFAS class, as opposed to regulating only specific varieties of PFAS substances.[9] While most studies of PFAS only look at a small number of the entire category of these substances, it is now believed that the findings in these studies are more broadly applicable to PFAS as a whole.[10] The Draft Report also finds that cumulative effects on human health will likely occur through exposure to mixtures of PFAS.[11] This proposed class-based approach allows the government to address these concerns without waiting for expensive and time-consuming research into each of the several thousand PFAS substances in existence.

Risk Management Report

If there are no substantive revisions to the final version of the Draft State of PFAS Report, the report will propose adding the entire class of PFAS to the List of Toxic Substances in Schedule 1.[12] Once a substance is listed under Schedule 1, CEPA empowers the Federal Government to take a number of risk management measures, including regulations that restrict the use, import, manufacture and release of substances.[13]

The scope of regulations being considered by the Federal Government are outlined in the Risk Management Report, which highlights three key PFAS risk management options the government is considering:

1. Regulatory and/or non-regulatory controls to minimize environmental and human exposure to the class of PFAS from firefighting foams, including investigating PFAS alternatives;[14]
2. Gathering information necessary to identify and prioritize options for reducing environmental and human exposure from the class of PFAS from other sources and products;[15] and
3. Aligning with actions in other jurisdictions, where appropriate, particularly those that are prohibiting the use of PFAS in categories of products like firefighting foams.[16][17]

While the Risk Management Report provides that the above options are only preliminary considerations that are subject to change, we expect that more information regarding the Federal Government’s next steps will follow the publication of the final State of PFAS Report.

Developments in the provinces

While the provinces have yet to pursue a class-based approach to addressing the concerns surrounding PFAS, there is some regulation and guidance in place and developing at the provincial level. Specifically:

• British Columbia leads Canada in PFAS regulation by including PFOS and PFOA as a regulated substance in its drinking water standards.[18] British Columbia also has had in place standards since 2019 for PFOS, PFOA and perfluorobutane sulfonic acid (“PFBS”) in its Contaminated Sites Regulation in the context of management and remediation of contaminated land.[19] In March 2023, British Columbia has also designated the PFAS class of substances as an “emerging contaminant” in their Design Guidelines for Drinking Water Systems.[20]
• Ontario first released interim advice on PFAS in drinking water in 2021.[21] The province has since then been working with the federal government to establish new approaches for regulating drinking water safety in light of the federal class-based approach to PFAS regulation, but has not published any updated information to date.[22]
• Quebec has been monitoring PFAS levels in water since 2007.[23] Earlier this year, the province prohibited the agricultural application of biosolids imported from the U.S. in response to concerns regarding the potential presence of PFAS in biosolids sourced from Maine. The ban is planned to remain in force until a proper control mechanism for PFAS is implemented by the Province, potentially in collaboration with the federal government.[24]
• Alberta is the most recent to join this list by adding PFOS and PFOA to their soil and groundwater remediation guidelines (Tier 1 and Tier 2) in January 2023.[25]

Key Takeaways

Companies operating in Canada should expect increasing regulation of PFAS substances to align with existing and developing regulation in the U.S. and Europe. A growing level of consumer awareness and litigation in the U.S. arising from the presence of these substances, in particular in food packaging, various types of coatings, personal care products and fabrics has brought the issue to the forefront in recent years.

In anticipation of even higher levels of concern and more regulation, companies would do well to carry out a comprehensive review of their inputs, products, facilities and operations involving the use and presence of these substances and begin the lengthy process of investigation, assessment, risk management and phasing out (if not already underway). It is likely that companies will eventually be required to do so, and this will help them meet new regulatory standards for potential disclosure, management, substitution, notification and remediation of these substances. The potential for civil litigation, including class actions, arising from exposure to PFAS is also a concern in Canada, having already become a reality in the U.S. in connection with drinking water.

McMillan’s environmental team is ready to help you and your business identify potential areas of concern with respect to PFAS. We will continue to provide updates regarding Canada’s federal and provincial PFAS regulation, and how businesses can expect such regulations to impact their existing and future operations.

Both the Draft State of PFAS Report and Risk Management Report are open for a 60-day public comment period ending on July 19, 2023. Any impacted stakeholders should consider submitting their comments before this deadline.

[1] Government of Canada, “Per-and polyfluoroalkyl substances (PFAS)” (last updated on 19 May 2023).
[2] Canada Gazette, Part I, Volume 155, Number 17, April 24, 2021, Notice of intent to address the broad class of per- and polyfluoroalkyl substances.
[3] Government of Canada, “Per- and polyfluoroalkyl substances (PFAS) – information sheet” (last updated on 19 May 2023).
[4] Nicole Brennan et al, “Trends in the Regulation of Per- and Polyfluoroalkyl Substances (PFAS): A Scoping Review”, Int J Environ Res Public Health, 2021 Oct; 18(20): 10900.
[5] Canada Gazette, Part I, Volume 156, Number 20, May 14, 2022, Prohibition of Certain Toxic Substances Regulations, 2022.
[6] Environment and Climate Change Canada and Health Canada, “Draft State of Per- and Polyfluoroalkyl Substances (PFAS) Report” (20 May 2023) at 7.
[7] Ibid.
[8] Ibid at 8.
[9] Ibid at 114.
[10] Ibid at 113.
[11] Ibid at 6.
[12] Environment and Climate Change Canada and Health Canada, “Risk management scope for per- and polyfluoroalkyl substances (PFAS)” (20 May 2023) at 7.
[13] Environment and Climate Change Canada, “Guide to understanding the Canadian Environmental Protection Act: chapter 5” (last updated on 4 July 2019).
[14] Supra note 12 at 9.
[15] Ibid.
[16] Ibid.
[17] Ibid at 25.
[18] British Columbia Ministry of Environment & Climate Change Strategy, “Source Drinking Water Quality Guidelines” (2020).
[19] Contaminated Sites Regulation, BC Reg. 375/96, Schedule 1.
[20] British Columbia Ministry of Health, “Design Guidelines for Drinking Water Systems in British Columbia” (2023) at 15.
[21] Ontario Ministry of the Environment, Conservation and Parks, “Minister’s annual report on drinking water (2021)” (2021).
[22] Ontario Ministry of the Environment, Conservation and Parks, “Minister’s annual report on drinking water (2022)” (2022).
[23] Québec Ministry of the Environment, the Fight against Climate Change, the Fauna and Wildlife, “Biosolides et substances per- et polyfluoroalkylées (PFAS)” (available in French only) (undated).
[24] Québec Ministry of the Environment, the Fight against Climate Change, the Fauna and Wildlife, “Le Québec s’assure de demeurer un leader dans la gestion des risques associés aux contaminants d’intérêt émergent dans les biosolides” (available in French only)  (2 March 2023).
[25] Alberta Government, “Alberta Tier 1 soil and groundwater remediation guidelines” (29 August 2022); Alberta Government “Alberta Tier 2 soil and groundwater remediation guidelines” (24 August 2022).

by Talia Gordner, Martin Thiboutot, Julia Loney, Ralph Cuervo-Lorens and Anna Stabb (Summer Law Student)

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2023