Environment Ministers endorse Australia’s first PFAS National Environmental Management Plan
Australia’s Environment Ministers have endorsed a National Environmental Management Plan (Plan) for per- and poly-fluoroalkyl substances (PFAS). The Plan is Australia’s first to provide a consistent, practical and risk-based framework for the management and regulation of sites and materials contaminated with PFAS. As such, it will be welcomed by regulators, industry and property owners affected by PFAS contamination.
What is PFAS and why is it a problem?
PFAS are a group of manufactured chemicals that have been used for more than fifty years in fire fighting foams, textile treatments and other industrial and consumer products. They include PFOS, PFOA and PFHxS.
PFAS resist physical, chemical and biological degradation, with the result that PFAS persists in soil, surface water and groundwater, over long timeframes. PFAS is also highly soluble and easily leaches from contaminated soil to groundwater, creating very large and long plumes of contamination. In addition, PFAS can accumulate in the food chain to levels that can be harmful to the environment and human health.
Prior to January 2018 there was no uniform approach to the regulation of PFAS contaminated materials and sites. The Plan was developed by the Heads of Environment Protection Authorities (EPAs) Australia and New Zealand (HEPA) in conjunction with the Australian Government Department of the Environment and Energy at the request of Environment Ministers around Australia.
On 8 August 2017, HEPA published a draft of the Plan. Eighty submissions were received and various consultation sessions followed.
Scope of the Plan
The Plan provides a national framework to promote a coordinated approach to managing PFAS contamination and mitigate risks to human health and the environment. The Plan uses nationally agreed Australian Standards where possible and aims to align with internationally accepted standards for managing PFAS, for example those found in the Stockholm Convention on Persistent Organic Pollutants.
EPAs in each jurisdiction will be guided by the Plan to set standards. Several subject-specific guidance notes will be released over the next six months to provide further detail to the principles set out in the Plan.
The Plan covers the management of PFAS already in the environment, rather than the continued use of PFAS containing products. The Commonwealth Department of Environment and Energy released a separate Regulation Impact Statement (RIS) late last year discussing options for a national phase out of PFOS and related chemicals. The RIS is currently still in the consultation phase.
Key parts of the Plan
PFAS inventory and priority sites
The Plan aims to establish a comprehensive PFAS inventory across Australia to identify high risk sites, which will then be used to target sites for management and possible remediation.
The Plan adopts a national approach to develop a preliminary inventory of high PFAS-impacted sites, based on the approach taken by EPA Victoria in 2016. EPA Victoria’s work identified fire training grounds, oil and gas industries, airports and chemical manufacturers as high risk PFAS contamination areas.
Health based guidance values and site assessment
The Plan sets out a nationally agreed suite of guidance values to be used to inform site investigations and assess levels of contamination that pose a threat to human health or the environment. Essentially these values are levels of PFAS which should not be exceeded for various receptors and in various contexts.
Guidance values are set out for the risk posed by PFAS contamination to:
- Human health through ingestion;
- Human health through contact with PFAS-contaminated soil;
- Ecological values due to PFAS-contaminated soil;
- Terrestrial biota through ingestion; and
- Aquatic ecosystems.
The Plan also provides guidance notes on how contaminated site assessments should be undertaken, as well as PFAS sampling and analysis. This guidance will be a valuable reference point for those assessing and auditing PFAS-contaminated sites. More consistency in the assessment of PFAS-contaminated sites is expected as a result.
Storage, containment and transport
Guidelines for the storage and containment of PFAS-containing products and PFAS-contaminated materials are set out in the Plan which aim to minimise leakage or spillage of PFAS substances.
The Plan acknowledges that storage and containment of PFAS material may occur onsite, but where ongoing containment presents unacceptable risks or ongoing management requirements, it is generally expected that materials will be removed for treatment or destruction.
The Plan provides that PFAS-contaminated material is to be classified as Dangerous Goods Class 9 and as falling within waste code M270 and category ‘Organic Material’. This will ensure that PFAS-contaminated materials are managed and transported by reference to the same waste code and dangerous good categorisation across Australia.
Treatment and remediation
A hierarchy of preferred treatment and remediation options is set out in the Plan. Most preferred is separation, treatment and destruction, followed by onsite encapsulation in engineered facilities, with the least preferred being offsite removal to a specific landfill cell.
The acceptance of PFAS-contaminated material by a landfill operator must be approved by the relevant EPA in accordance with existing applicable legislation. The Plan provides guidance on the characteristics of landfill sites which would be suitable for accepting PFAS-contaminated materials and the concentrations of PFAS material which might be accepted. The concentrations differ depending on whether the landfill is unlined, clay, single composite lined or double composite lined.
The Plan also provides guidance on the management of PFAS-contaminated materials through the life cycle of a landfill site together with operational and monitoring practices such as assessing the presence of PFAS in leachate, and ground and surface water. Guidance is also provided for the closure of landfills and ongoing containment strategies.
The importance of managing PFAS contamination in wastewater is acknowledged in the Plan and further work, in collaboration with the water industry, is expected to be undertaken to establish criteria and guidance for water authorities and environmental regulators to manage PFAS-contaminated wastewater.
The Plan leaves it open for environmental regulators to consider the reuse of PFAS-contaminated material in some circumstances, provided such reuse does not lead to an unacceptable risk to human health or the environment. The Plan identifies potential appropriate reuses of PFAS-contaminated soil including fill in commercial/industrial developments with minimal access to soil, fill beneath sealed surfaces such as car parks, and construction fill on road embankments.
Implications for business
The Plan will facilitate decision-making relating to PFAS contamination including setting standards, and developing and approving management strategies for PFAS-contaminated sites.
Business can expect:
- A more consistent approach by EPAs and environmental consultants in site assessment and analysing acceptable levels of PFAS contamination based on the guidance values specified in the Plan;
- Where development PFAS-contaminated sites has been delayed due to regulator caution and lack of a national approach, the guidance is likely to lead to greater regulator confidence to approve management strategies and options to allow development to progress;
- Greater scrutiny of the transportation of PFAS-contaminated materials and a more uniform approach to the waste code and dangerous goods classifications of PFAS-contaminated materials;
- Closer monitoring of PFAS-contaminated material storage to ensure appropriate measures are in place to stop leakage and spillage;
- A preference for the treatment and storage of PFAS-contaminated material onsite rather than removal offsite;
- Acceptance of PFAS-contaminated material into landfills meeting certain criteria and increased regulation around the management of PFAS throughout the lifecycle of the landfill; and
- Further guidance around issues including soil and waste reuse, criteria for water authorities and utilities, trade waste water, treatment and remediation, site prioritisation, containment and the application of environmental guidelines and criteria in the next six months.
HWL Ebsworth has a team of environmental lawyers nationally who would be happy to discuss PFAS with your organisation.
This article was written by Meredith Gibbs, Partner, Gabby McMillan, Associate and Kirsten Sugden, Solicitor.
P: +61 3 8644 3539
Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.