Australia and New Zealand have moved one step closer to establishing a framework to manage PFAS, a manufactured chemical which has emerged as a contaminant of concern worldwide over the recent years and this year has been the basis for two class actions in Australia. PFAS, short for per-and poly-fluoroalkyl substances, has become an issue due to its use in a range of products since the 1950s and resistance to normal environmental breakdown, making it persist in the environment for a long time.
Investigations to understand the effect of PFAS on human health continue, presenting governments and regulators with the challenge of working out how to manage this chemical where the effects are not yet fully known. Last week, the Heads of EPAs Australia and New Zealand (HEPA) and the Australian Government Department of the Environment and Energy (DoEE) moved closer to establishing the basis for a national management framework with the release of the PFAS National Environmental Management Plan (PFAS NEPM) consultation paper (the PFAS Paper).1 The PFAS Paper calls for feedback and comments from those with experience relating to PFAS and is open for submissions until Monday 25 September 2017.
Partner Meg Lee and lawyer Zina Teoh discuss the emerging issue of PFAS in Australia and the potential new management framework for PFAS.
PFAS are manufactured chemicals, the most common being perfluorooctane sulfonate (PFOS) and perfluorooctanic acid (PFOA). While not made in Australia, they have been used over past 50 years in a range of products such as fire-fighting foams, pesticides and stain repellants.2 Use of PFAS by Department of Defence in fire-fighting foam at sites around Australia has gained attention lately with class actions lodged by residents for PFAS contamination at the Williamtown RAAF Base in New South Wales, and the Army Aviation Centre in Oakey, Queensland. Investigations have begun into the use of PFAS in other RAAF sites around Australia so more class actions could be still to come.
The reason that PFAS has emerged as a concern is because it is resistant to environmental breakdown and therefore can accumulate and persist in the environment and in humans. It is believed that humans are exposed to these chemicals through drinking water and ingesting food contaminated by PFAS. While it has been shown that most people will have some low level of PFAS in their bodies, there is emerging concern about accumulation of PFAS in humans at high levels around sites where there has been PFAS contamination.3
Studies on the effects of high levels of PFAS in humans are yet to provide any certainty around the dangers of PFAS exposure. However, adverse effects of PFAS exposure in animals has been established, although this has been for PFAS at higher levels than has been found in humans. The Commonwealth Governments stance at this stage, as shown in the enHealth Guidance Statements on per-and poly-fluoroalkyl substances June 2016 has been that research has not yet been established to show that “exposure to PFOS and PFOA causes adverse human health effects.”4
As the consequences of PFAS use and exposure are only now being brought to light, regulators have not yet settled on the best way to manage PFAS in Australia. The national standard for assessment of site contamination in Australia is found in the National Environment Protection (Assessment of Site Contamination Measure 1999 (ASC NEPM) however this was developed and amended before the growth in awareness on PFAS. While specific PFAS standards are developed, various jurisdictions around Australia have released interim standards on PFAS and the Australian Government Department of Health has released the Health Based Guidance Values for PFAS in April this year.5
The purpose of the PFAS NEPM is to provide an overarching framework and a set of nationally accepted standards relating to investigation, remediation and waste management for PFAS across Australia, taking into account the Australian and New Zealand Guidelines for Fresh and Marine Water Quality, the ASC NEPM and the National Environment Protection (Movement of Controlled Waste between States and Territories) Measure 1998.
Key issues arising from the PFAS Paper are as follows:
Victoria manages contaminated wastes under the Environment Protection Act 1970 (EP Act), the Environment Protection (Industrial Waste Resource) Regulations 2009 (IW Regs) and other subordinate regulations. The EP Act and associated regulations implement the objectives of nationally agreed on standards on contaminated wastes, including the ASC NEPM and the MCW NEPM.
While development of a PFAS specific NEPM progresses, the Victorian EPA has released interim guidance 6 on management of PFAS-impacted wastes in Victoria. In this guidance, the EPA has expressed that it considers PFAS to be a “prescribed industrial waste”(PIW), which is the classification for hazardous wastes in Victoria regulated by the EP Act and IW Regs. PIWs are classified where substances meet the threshold levels of certain contaminants, and while threshold levels are yet to be established for PFAS, the EPA is employing a precautionary approach and has advised that wastes and contaminated soils that contain PFAS as PIW.
Accordingly, PFAS producers and receivers have obligations in relation to treatment, transport, disposal and licensing under the EP Act and associated regulations. Once a national framework is set, we would expect to see the threshold levels set for the classification of wastes containing PFAS as PIWs.
In terms of disclosure requirements relating to PFAS, the Victorian EPA is encouraging wastes receivers and producers to report the discovery of any PFAS wastes to the EPA and to discuss management obligations, particularly where waste receivers are accepting PFAS contaminated waste under a general waste code. We also understand that there are changes proposed to the EP Act which are likely to include a positive obligation to prevent and report contamination, which has not previously been the case in Victoria. It is likely therefore that reporting of waste containing PFAS is likely to increase significantly moving forward.
Transport of contaminated wastes outside Victoria is regulated under the IW Regs. Regulation 26(3)(b) (which was amended last year) prevents the EPA from approving the transport of PIW interstate unless it is satisfied that the waste will be destroyed or deposited at a premises at which there is a facility with equal to or better environmental performance standards than premises in Victoria.
Currently there are no premises in Victoria which are licensed to treat PFAS. However, we note that the EPA guidance note advises that Renex, a Victorian waste treatment company, currently holds a Research, Development and Demonstration approval to run PFAS treatment trials using thermal destruction technology. Once this trial is completed and the facility becomes licensed, we expect the Victoria EPA would be unlikely to approve of interstate transport of PFAS materials unless it can be shown that the receiving premises can offer performance standards that are equal or better than at the Renex facility.
2 EPA Victoria Publication 1611.3, Per-and polyfluorinated alkyl substances (PFAS) available at https://www.epa.vic.gov.au/~/media/Publications/1611%203.pdf
3 EPA Victoria Publication 1611.3, Per-and polyfluorinated alkyl substances (PFAS) available at https://www.epa.vic.gov.au/~/media/Publications/1611%203.pdf