01-40_WC_149_JUL-AUG26_PT - Flipbook - Page 23
water, and engineers will be coming into your
basement four times a year to change your filters
and test your water for PFAS contamination.” Most
people likely wouldn’t purchase that property only
do so at a significant discount.
MICHAEL: It’s pretty simple. If you have two identical
subdivisions—one completely virgin and untouched,
and one with all this environmental “noise” on it—
which one are you going to buy? You’ll only buy the
one with the noise if you get a massive, steep discount.
That is what stigma is all about.
PFAS is everywhere, it’s in everything.” But we are
talking about massive concentrations. While we do
not subscribe to the current federal and provincial
PFAS drinking water guidelines, in these cases, there
is reporting available of nanograms per litre orders
of magnitude above both the federal and provincial
PFAS guidelines. That isn’t background noise. That
is severe localized contamination. And the science is
clear that that level of contamination causes serious
health problems, cancers, and death.
WATER CANADA: Water utilities don’t create PFAS,
WATER CANADA: Nathan, given your environmental
science background, how difficult is it to legally
prove causation and track liability when a “forever
chemical” has been migrating through groundwater
for decades?
NATHAN: Analytical science has evolved significantly
over the last decade. Our ability to detect PFAS in
well water has vastly improved. Legally, you look at
groundwater flow direction to establish a clear path
from the source of the spill to the residential well.
In many of the communities we represent and
nationwide, the federal government has been monitoring residential well water samples on a quarterly
basis. Because of that, there is already an ample
paper trail in the residents’ possession showing
that PFAS has migrated off-site from these federal
PFAS-contaminated facilities. From a litigation
perspective, having those extensive scientific reports
makes proving causation uniquely viable.
MICHAEL: Groundwater and surface water will naturally carry the chemical along their flow paths. The
real hurdle with causation isn’t tracking the movement. It’s identifying the source if there are multiple
potential polluters. If you have 10 industrial facilities clustered close to an affected property, you are
going to have a devil of a time sorting out who is responsible. But if you have an isolated area with only
one clear source of PFAS—like an airport, military
base or an NRC fire lab site—and the surrounding
land has no history of using those chemicals, it’s
pretty obvious. You put A and B together.
WATER CANADA: PFAS is everywhere now—it’s in
rainwater, consumer wrappers, and common products. How do you isolate background environmental noise from a localized corporate polluter?
MICHAEL: It comes down to quantity. The defense
lawyers for polluters always jump up and say, “Oh,
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but they are stuck treating it. Will legal liability ultimately stay with original polluters, or do
municipalities face exposure if they can’t upgrade
infrastructure fast enough?
MICHAEL: The problem with PFAS is that many of
these spills have taken place over 50 to 75 years
and have spread across massive geographical areas.
Complete remediation of these downgradient sites is
simply not possible. Polluters and municipalities are
stuck trying to figure out how to live with it—whether that means supplying bottled water or installing
treatment filters so the water people use to bathe and
drink is somewhat manageable.
But as a municipality, if you are stuck managing
those systems, you inherit the operational liability of
filter failures. You also face residents who are angry
about permanent losses in their property values and
concerned about the potential health impacts of
ingesting PFAS.
WATER CANADA: Should commercial property buyers
or developers be explicitly demanding PFAS testing
on new developments, and are traditional Phase I and
II Environmental Site Assessments (ESAs) missing
the mark?
MICHAEL: Right now, it isn’t much of a factor in traditional assessments, but that is shifting. I won’t give
direct advice on what buyers should do, but I will tell
you this: insurers are broadly discussing this problem
and they are deeply concerned about this exact issue.
There is a heck of a lot of PFAS to clean up across
this country due to the last 75 years of history. Moving forward, utilities and municipalities have to focus
on minimizing harm right now. As per the recent
decision in our Egan class action case, shifting into
“hide and assess” mode or delaying public disclosure
is no longer an option. The courts simply will not
tolerate it anymore.
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