Why is PFAS an issue?
Per- and poly-fluoroalkyl substances (PFAS) contamination is caused by a range of activities. The most well-known source of PFAS contamination is the manufacture and use of aqueous film forming foams (AFFF). AFFF is an extremely effective fire suppressant, and was widely used for over 60 years to extinguish fires, and in fire training activities.
However, AFFF is far from the only source. PFAS contamination is also caused by, amongst other things, chrome plating operations, textiles manufacturing, mists suppressants and food packaging.
It is clear that PFAS can persist in humans, animals and the environment. However, there is no definitive evidence that PFAS exposure is harmful to human health.
As a consequence of the widespread historical use of PFAS in Australia since the 1950s, and the potential risks (although unproven) to human health and the environment, PFAS contamination is a significant national issue.
As demonstrated by the class actions commenced around the world in relation to PFAS contamination, including in Australia, it is also a potential source of significant civil liability, especially for those who have caused PFAS contamination. In addition, PFAS contamination may trigger statutory obligations on the part of those responsible for PFAS contamination, and the owners of PFAS contaminated sites, including to report contamination, and undertake investigation, management and remediation works.
What’s new, and why is it relevant to you?
With a view to providing some guidance on this significant national issue, on 16 February 2018, the Commonwealth, State and Territory environment ministers endorsed Australia’s first PFAS National Environmental Management Plan (NEMP), and in late February 2018, they entered into the Intergovernmental Agreement on a National Framework for responding to PFAS contamination.
The NEMP is the first national ‘blue print’ for the regulation of PFAS contamination and will inform the approach taken by regulators across Australia.
The NEMP may help you to anticipate the actions of regulators, and take a proactive approach in relation to an issue which is catching many unawares.
What you need to know:
- Is PFAS an issue?– Appendix B of the NEMP contains a comprehensive list of the activities known to cause PFAS contamination, and is a good starting point when determining whether or not a property may be impacted by PFAS contamination. However, keep in mind:
- PFAS is highly mobile, and if your property is near other properties with a history of PFAS contaminating activities, your site may be impacted by PFAS. As such, it may be necessary to consider the historical uses of surrounding sites, as well as the activities carried out on your own site;
- If there was a fire at the site at any time since the 1950s, AFFF may have been used, and this should also be considered when determining whether or not a property may be impacted by PFAS contamination.
- Own multiple sites potentially impacted by PFAS but don’t know where to start? – The NEMP acknowledges that PFAS contamination impacts a huge number of sites, and that it is not practical for landowners to seek to deal with every site at once. However, that is not an excuse to do nothing. Sites need to be assessed at a high level and then prioritised based on the outcomes of that assessment. Guidance as to how to carry out this prioritisation exercise is contained in the NEMP, including at section 7.
- When to talk about PFAS? - The NEMP emphasises that regulators, throughout Australia, expect both government and industry to communicate early and often about PFAS contamination with potentially affected communities. The NEMP states that the community should be provided with clear information regarding the uncertainties associated with the risks of PFAS exposure, and the steps being taken in response to those risks. Whilst the EPA will not inform the community for you, it wishes to be involved in the planning for community engagement.
- Are you storing PFAS? - There are only extremely limited options for disposing of PFAS. This means that many, whilst no longer wishing to use AFFF or other PFAS containing materials, are forced to store remaining stocks onsite. The environmental regulators throughout Australia are developing “inventory teams”, who will request, or require, information from relevant industries regarding any PFAS containing substances they may be storing. In this circumstance, it is prudent to ensure that, before the EPA comes knocking:
- You know whether or not you are storing PFAS containing materials; and
- If you are, that you have appropriate measures (which are clearly documented) to manage the risks associated with storing PFAS, including spills and escapes.
- Thinking about selling or developing? - Purchasers, and planning authorities, now routinely ask about PFAS, and it is always preferable to be able to answer any such questions quickly and accurately. If PFAS contamination is present, this need not necessarily preclude the sale or development of a site. However, it is a matter which will require a considered strategy, and will be more difficult to address in a purely reactive manner.