A national approach to PFAS contamination

A new National Environment Management Plan (NEMP) has been agreed between State, Territory and Commonwealth Environment Ministers to tackle a persistent environmental contaminant known as “PFAS” (per-and poly-fluoroalkyl substances).  The release of the PFAS NEMP is intended to provide a nationally-consistent approach to the handling, transport, storage and destruction of PFAS contamination.  Partner Meg Lee explains further.

Background

PFAS have been used in a variety of common household products for over 50 years in Australia as they have useful properties that make products heat resistant, non-stick, water repellent, and weather and stain resistant.  PFAS have also been used in fire-fighting products and, for that reason, have been found on many industrial and Department of Defence sites where past fires have been fought using the foams containing PFAS.  Over time, the PFAS chemicals have migrated through the soil and into ground water.  PFAS are also present in landfills and wastewater treatment facilities and more broadly in the environment.

There has been significant publicity over the last year surrounding PFAS contamination found in drinking water downstream from Department of Defence sites and class actions by residents are being pursued in the Courts in several jurisdictions.  In this context, and in the context of a National waste market, a Nationally-consistent approach to the regulation of clean-up, handling, storage and disposal or destruction of PFAS contaminated soils and wastes is important to avoid situations of the lowest common denominator effect of such wastes ending up in landfills in the least regulated jurisdiction.

In August last year, we reported in detail on the Discussion Paper released as part of the process for development a NEMP.  Over 180 submissions and responses were received on the Discussion Paper and the draft NEMP.  Consultation sessions were also then held with interested parties from the industrial and waste management sectors.  The final NEMP was then released on 16 February 2018.

What is the status of the PFAS NEMP?

At an international level, PFAS-related chemicals were first nominated in 2015 for listing on the International Convention on Persistent Organic Pollutants (the Stockholm Convention) and further related chemicals were nominated in 2017.  The Convention’s decision-making body is not intending to decide on the listing of PFOA until 2019.  Australia is participating in the decision-making process and will need to make a decision on whether to ratify the listing of PFAS in the Stockholm Convention which will then have the consequence of increasing the obligation on Australia to phase out the use of PFAS chemicals and to regulate the PFAS contaminated wastes.

In the absence of a current international obligation to regulate PFAS usage and its wastes, the ‘usual’ pathway for using the National Environment Protection Measure (NEPM) process has not been utilised in these circumstances.  Instead an approach of using a ‘Management Plan’ as a guidance tool for State and Territory regulators has been adopted.

Importantly, where NEPMs are made at the National level, in some States¹  this automatically incorporates the content of the NEPM into that State’s policy or regulatory framework.  By contrast, a NEMP has no statutory status, however parts of the NEMP state that it is intended to supplement relevant existing NEPMs such as the National Environmental Protection (Assessment of Site Contamination) Measure 1999 (ASC NEPM) so as to provide PFAS specific information.

What does the PFAS NEMP require?

The PFAS NEMP sets out guidance for regulators in relation to investigation and monitoring; storage and handling; and disposal and destruction of PFAS wastes and contaminated soils and liquids.

Investigation and Notification

For the first time, ecological and human health investigation limits have been put forward to guide site Auditors and assessors as to appropriate levels to trigger investigation of soil contamination based on human health impact criteria and ecological investigation levels.

The NEMP reiterates that some States and Territories have mandatory reporting / notification of any contamination that has the risk of causing significant environmental harm and notes that this general duty would likely apply to the discovery of any PFAS contamination at a site due to the risks associated with its mobility and persistence in the environment.  However, the NEMP doesn’t of itself mandate any reporting or notification to local regulators.

Storage and Handling
Importantly for developers of contaminated sites and those involved in the waste sector, the NEMP acknowledges that it is sometimes appropriate to implement an on-site containment approach to the discovery of PFAS contaminated materials. However, the NEMP states that this is only an option when:

• the source site is hydrogeologically appropriate (with consideration for depth to water table and aquifer characteristics);
• it is possible to manage risk to on- and off-site beneficial uses (direct and indirect) for soils, surface water, and groundwater; and
• there is capacity at the site.

Further, the NEMP states that the appropriate methods for on-site containment include:

• engineered stockpiles for the containment of PFAS-contaminated material (eg. soil, concrete, asphalt);
• capping and covering to minimise the movement of PFAS off-site; and
• engineered containment facilities, with appropriate lining and cap or other barrier.

Where a containment facility is proposed to be used in the longer term, the NEMP notes that some jurisdictions will require listing of the waste containment facility on its contaminated land registers and will also require a regulatory approval or licence to regulate its construction and to impose ongoing management and monitoring obligations on the land owner/operator.

Classification, Transport and Reuse

The NEMP notes that it is proposed to update the National Environment Protection (Movement of Controlled Waste between States and Territories) Measure 1998 (Waste Transport NEPM) and that, in the meantime, environmental regulators have agreed to adopt the following PFAS-specific waste codes within their legislative frameworks based on the following:

• Category: Organic chemical (M)
• Description: Per- and poly-fluoroalkyl substances (PFAS) contaminated materials, including waste PFAS-containing products and contaminated containers
• Waste Code: M270
• Dangerous Goods Class: 9

The NEMP goes on to state that all decisions regarding approval of interstate transport of PFAS-contaminated materials must consider whether:

• the receiving facility is licensed to receive the materials having regard to their physical and chemical characteristics; and
• approval has been obtained from the destination environmental regulator(s).

PFAS-contaminated materials may be considered by environmental regulators for reuse under some circumstances, particularly for the purpose of resource recovery, however the NEMP clearly states that ‘dilution’ is not an acceptable waste management strategy to create material suitable for such reuse.  Examples of potentially acceptable reuse, subject to approval of the local EPA and a site specific risk assessment, include:

• use as fill material in commercial/industrial developments with minimal access to soil;
• use as fill beneath sealed surfaces, including but not limited to, car parks/ roads/ paving/ runways;
• use as construction fill on road embankments, noting that risks should be assessed for stormwater runoff that may mobilise PFAS;
• use as fill material in areas where background PFAS levels are present at a similar or higher contamination risk profile; and
• reuse as construction material, e.g. bricks, rammed earth and gabions, noting the need to consider PFAS leachability.

Treatment, Disposal and Destruction

The NEMP sets out a preferred hierarchy for treatment and remediation options as follows:

1. Separation, treatment and destruction: on-site or off-site treatment of the contamination so that it is destroyed, removed or the associated risk is reduced to an acceptable level;
2. Onsite encapsulation in engineered facilities with/without immobilisation; then
3. Offsite removal to a specific landfill cell.

The NEMP states that landfill acceptance criteria for total concentration is capped at 50 mg/kg. This is based on the PFOS requirements of the Stockholm Convention.  This means that at any higher concentrations, the only options will be treatment and destruction.  Appendix C of the NEMP sets out the types of treatment technologies currently available in Australia.

Where to from here?

The NEMP provides for a program of further work and investigation including further consultation and peer review, consideration of practicability and the development of further case studies, further review of international standards, options for alignment with industry risk assessments (for example, the oil and gas industry) and include the review of the Water Quality Guidelines.

We also expect that, once the Waste Transport NEPM is amended, there are likely to be consequential amendments to many of the State and Territory policies and guidelines.

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¹ eg under s 12A of the State Policies and Projects Act 1993 (TAS) NEPMs are taken to be State Policies.