The fight against forever chemicals

It’s not a bandwagon until B.C. gets on board. After launching class action lawsuits against tobacco firms in 1998 and opioid manufacturers and distributors in 2018, the government of British Columbia filed a proposed national class action before the provincial Supreme Court in June against makers of what are commonly known as “forever chemicals.”

As the first Canadian government to seek a court ruling to recoup costs associated with removing forever chemicals — perfluoroalkyl and polyfluoroalkyl substances (PFAS) — from drinking water systems, B.C is cresting a wave that, as usual, started building in the United States.

More than half of the attorney generals across 50 U.S. states have launched lawsuits against PFAS manufacturers. 3M Co. announced last year it would pay at least $10.3 billion to settle lawsuits related to PFAS contamination of hundreds of U.S. public drinking water systems.

Three other companies — DuPont and spinoffs Chemours Co. and Corteva Inc. — also reached a $1.18-billion deal to resolve PFAS claims by about 300 drinking water providers. (3M also has said it will stop producing PFAS chemicals by the end of this year.)

B.C. clearly smelled blood in the water; its claim names 3M, DuPont, Tyco and BASF — manufacturers, marketers, distributors and sellers of products containing PFAS compounds.

“(Class action claims have) a higher profile, a greater cachet, than smaller claims,” says Jennifer Fairfax, a partner at Osler specializing in Indigenous and environmental law.

“PFAS is a hot issue right now, and it’s getting a lot of attention.”

PFAS are used in products that resist heat, water and stains — which explains why they’re found in everything from fire-retardant foam to non-stick pans. They’re extremely stable and don’t break down naturally, so they accumulate in the environment, animals, and people. They’ve been linked to cancer, kidney disease, liver ailments and immune disorders — hence the lawsuits.

PFAS lawsuits have been proliferating in Canada in recent years. Private firms are pursuing class actions in Ontario and British Columbia against major chemical manufacturers on behalf of individuals who allege their wells were contaminated by PFAS compounds. A group of Ontario homeowners has filed a lawsuit against the National Research Council, claiming that an NRC lab polluted their drinking water. In Quebec, a firefighter convinced a court that his exposure to PFAS in firefighting foam led to his testicular cancer.

Last year, a U.S. district judge warned that the lawsuits could pose an “existential threat” to companies facing PFAS claims. Canadian firms can’t expect to be immune.

“I think (manufacturers’ knowledge of the health effects) has already been established in the litigation south of the border,” says Elaine MacDonald, a program director at Ecojustice.

“There’s a lot of litigation, which means a lot of evidence. We’ve got decades of litigation ahead of us (in Canada).”

That litigation probably won’t be limited to companies in the chemicals sector. Large corporations in the food services industry have been sued in the United States. Any firm with PFAS in its inputs could be vulnerable — even if they don’t know it yet.

“Companies might not even know these chemicals are present in their supply chains,” says Rohan Shah, an associate at Osler’s.

“And these supply chains can be extremely complex, spanning multiple continents.”

Talia Gordner, a partner in environmental law and corporate commercial litigation at McMillan, says one major problem facing companies trying to get a handle on their PFAS liability is the chemicals’ ubiquity in all manner of supply chains.

“We’re talking about three or four thousand different chemicals,” she says.

“They can show up in a lot of different ways in a lot of different places, which makes them a unique challenge when compared to, say, refrigerants.”

The federal government is requiring businesses to report on the presence of PFAS in their supply chains by January 29. Corporate directors and officers have a positive duty under the Canadian Environmental Protection Act to ensure they’re in compliance. However, they also face personal liability under CEPA if, for example, they knew about the reporting requirement but took no action to comply.

The first step in shielding a company from PFAS problems, says Gordner, is research — testing products and processes for the chemicals.

“Maybe you’ve never really looked or worried about it,” she says. “But how can you know whether you’re exposed if you don’t look into it?

As these chemicals can collect in the environment, in soil and groundwater, companies will also have to examine their property.

“In some cases, you might not need to investigate the supply chains. You could hire a consultant to take samples from your products and your plant, and send them to a lab,” Gordner says.

“If you’re making a product that’s likely to have PFAS and you don’t assess, that’s on you.”

So, what should a company do if it finds PFAS compounds?

“I think at that point you’re going to want to hire counsel to do a risk assessment,” she says.

“Are the chemicals identified ones that the regulator has said are dangerous? How long have they been in your products? Do you have alternatives? The point is to identify the scope of liability for your company."

In some cases, the chemical may be encased in a way that makes it low-risk. Companies must work with a lawyer to know how low that risk is. That risk evaluation will indicate whether they should be “bracing” for lawsuits.

“Some companies, like manufacturers, are going to have a pretty good handle on what’s in what they’re selling. But it could get expensive,” Gordner says.

“Should you set aside a reserve to pay for legal representation? Should you have counsel on retainer? This is advice you should be seeking out from a lawyer.”