Regulatory Challenges Posed by PFAS Chemicals

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Presentation

Joseph F. Castrilli, Counsel, Canadian Environmental Law Association

Toronto, Ontario, December 2024

Photo: Linda Pim

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Canadian Environmental Law Association (CELA)

• Specialty legal aid clinic dedicated to environmental equity, justice, and health
• Founded in 1970, funded by Legal Aid Ontario since 1978
• CELA provides free legal services relating to environmental justice in Ontario, including representing qualifying low-income and vulnerable communities in the courts and before tribunals. CELA also provides free summary advice to the public and engages in legal education and law reform initiatives.

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Photo: Kelly Mathews

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Introduction

• PFAS chemicals pose regulatory nightmares for environmental and health agencies in Canada and other countries
• In 2018 OECD indicated there are 4,700 PFAS-class chemicals in existence, though some countries estimate that there are over 15,000 in the class
• Used to make products resist water, stains, oil, heat
• But remain in environment “forever” & health effects may include risk of various cancers, decreased fertility in women, immune system dysfunction, etc.

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Where PFAS Are Found

• Major bodies of water (e.g., Great Lakes, oceans)
• Drinking water supplies
• Agricultural lands (laced with PFAS-contaminated sewage sludge)
• Livestock
• Food (that has come into contact with PFAS packaging)
• Consumer products, (e.g., children’s toys, dental floss)
• Humans

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How Have PFAS Ended Up Everywhere

• Through manufacturing, import, processing, distribution, use in Canadian industry and commerce
• Subsequently emitted to air, discharged to water, disposed of on land (e.g., sewage sludge application to land has a long history in Ontario)
• A 1978 report to the IJC noted: “Sewage sludge disposal on land is a nutrient source similar to contributions from farmyard manure. Unlike manure, however, it is generally contaminated with high levels of heavy metals [e.g., mercury, lead] and organic contaminants [chemicals]”.

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How Have PFAS Ended Up Everywhere (continued)

• A 1980 IJC report to Canada and the United States on the Great Lakes noted: “A specialized.… problem is the application of sewage sludge from municipal treatment plants onto agricultural land. Increased application to the land could… lead to an environmental problem if inadequately controlled [such as] the potential for heavy metals and other toxics entering the lakes by leaching from sludges containing such materials”.

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Are PFAS Federally Regulated?

• CEPA - Three PFAS-class chemicals subject to prohibition (PFOS, PFOA, and long-chain PFCAs); but exceptions allow continued use (e.g., in fire-fighting foam – result: PFAS contamination of drinking water supplies near airports/defense facilities)
• Fertilizers Act - Oct 2024 standard for commercially imported/domestically sold biosolids sold as fertilizers – may not contain more than 50 ppb of PFOS – PFOS used as an indicator for PFAS contamination – need lab report attesting to compliance and subject to CFIA inspection

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Are PFAS Provincially Regulated?

• May be addressed in air, water, waste disposal, & drinking water system approvals EPA, OWRA, SDWA
• May also be addressed as part of farm nutrient management plan under Nutrient Management Act issued by Agriculture Ministry in conjunction with MECP standards for spreading sewage sludge on farmlands
• 2024 Kingston Biosolids study suggests “digestate byproduct” may not be subject to nutrient management regime because a Fertilizers Act “value-add”

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2024 Kingston Biosolids Study

• “It is assumed…any selected technology would produce a digestate byproduct that will meet the requirements of the federal Fertilizers Act…administered by… CFIA . This implies that the product would not be subject to approval and end-use requirements for Non-Agricultural Source Materials…under the Nutrient Management Act as administered by…OMAFRA… . A CFIA-regulated fertilizer product is considered a value-add…” (pdf pages 111-112).

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The PFAS Situation in Other Jurisdictions

• Quebec: PFAS in 99% of drinking water samples in 376 municipalities prompted class action lawsuit against companies responsible; temp. ban of biosolid imports
• US: class actions against manufacturers resulted in $16 billion mun. drinking water systems settlement; 2024 PFAS federal drinking water standard set at 4 parts per trillion
• Various US states: PFAS-contaminated sewage sludge resulted in shutting one farm down (Michigan); state-wide ban of sewage sludge spreading on farmlands (Maine)
• Europe Union: proposed PFAS manufacturing ban vigorously opposed by industry arguing no substitutes available

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Prospects for PFAS Reforms in Canada

• Latest federal scientific assessment (2024) recognized PFAS class of chemicals meet test for being designated “toxic” under CEPA and should be addressed as a class for regulatory purposes, not one chemical at a time as has been done up to now, since there are thousands of them in commerce in Canada

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Prospects for PFAS Reforms in Canada (continued)

• Recent issuance of data collection notices under CEPA
• Expected removal of fire-fighting foam exemption for regulated PFAS but non-regulated PFAS still in foams
• Expected PFAS-class designation under Part 2 of CEPA Sch. 1 as opposed to Part 1 may result in primarily regulation not prohibition
• Determination yet to be made whether fluoropolymers – used in creating non-stick surfaces – should be included in class of PFAS chemicals eligible for control under CEPA

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Prospects for PFAS Reforms in Canada (continued)

• Relationship between federal Fertilizers Act and Ontario Nutrient Management Act needs clarification
• Does treating biosolids as “value-added” fertilizer product make them exclusively federal matter or do Ontario farm nutrient management plan requirements for “non-agricultural source material” (i.e., sewage sludge) still apply?
• Need a multi-jurisdictional approach to guard against PFAS contamination; if compliance with Ontario law not result in violation of federal law both should apply

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Conclusions

• PFAS contamination problem is multi-environmental pathway and multi-jurisdictional in scope in Canada
• Application of federal law to PFAS needs to improve, accelerate, and be clarified (CEPA and Fertilizers Act)
• Ontario laws (EPA, OWRA, SDWA, NMA) need to be applied with PFAS in mind & supplement federal law
• Kingston biosolids project may exemplify both the problem and the need

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Additional Resources

• Focus on Per-and Poly Fluoroalkyl Substances (PFAS), Public Health Ontario, 2023:

< https://search.app/AveczdBq1UYmoBnS8 >

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• T-4-132 – Per-and polyfluoroalkyl substances (PFAS) standard for commercial biosolids imported or sold in Canada as fertilizers, CFIA, 23 October 2024:

< https://search.app/JzCAK3H39Nrtq3h68 >

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• PFAS – The Forever Chemicals, CELA Collection

< https://cela.ca/pfas-the-forever-chemicals/ >

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