On 1 March 2021, the NSW Parliament enacted the Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021 (the Amendments). The legislation follows a nationally coordinated effort to reduce the use of per- and poly-fluoroalkyl substances (PFAS). The most common of these substances includes PFOS and PFOA, as well as PFHxS which is contained in legacy firefighting foams.
PFAS substances resist environmental degradation, bio-accumulates and are transmitted to humans and wildlife through waterway contamination. Overexposure to these substances can lead to adverse health effects, and can cause long-term environmental pollution.
National PFAS Framework
In our previous PFAS Update, we considered the development of a PFAS National Environmental Plan (PFAS NEMP) to provide a risk-based framework for PFAS contaminated materials and sites.
Since that time, the National PFAS Position Statement (Position Statement) was released in October 2019, followed by a second version of the PFAS NEMP in January 2020. The Position Statement outlined a process of engagement with industry and stakeholders to regulate PFAS use. The process formed part of a ratification process by Australia under the Stockholm Convention on Persistent Organic Pollutants, which lists both PFOS and PFOA.
The NSW Amendments made pursuant to the Protection of the Environment Operations Act 1997 (NSW) legislates a framework to address one of the most common modern uses of PFAS – firefighting.
NSW PFAS (Firefighting Foam) Regulation 2021
The Amendments are implemented into the existing NSW Protection of the Environment Operations (General) Regulation 2009.
Under s93A of the Amendments, the Environmental Protection Agency is established as the regulatory authority for a PFAS-related matter. The substantive section coming into force from 1 March 2021, being s98H, states that it is an offence to discharge PFAS firefighting foam (PFAS foam) for the purposes of firefighting training or demonstration. PFAS foam is defined by the Amendments to include both long-chain PFAS foam and PFAS foam from a portable fire extinguisher.
Both sections 98I and 98J of the Amendments take effect from 26 September 2022, making it an offence to discharge PFAS foam beyond training purposes. However, there are also exceptions to the new laws. These include a decision by a relevant authority under the Act, such as a State authority or a fire brigade unit, to use PFAS firefighting foam in the case of a catastrophic fire. A further exception is to address a fire on a watercraft in State waters.
The amendments also address the sale of PFAS firefighting foam from 26 September 2022 onwards, making it offence to sell fire extinguishers containing the foam unless that sale is reasonably believed to be to a relevant authority, owner of a watercraft or a person made exempt under s95B by the EPA.
The penalty for an offence under the Amendments is uniform, being a maximum 400 penalty units (or $80,000) for a corporation or 200 penalty units (or $20,000) for an individual.
The Amendments provide a legislative framework for the transition away from PFAS use in firefighting in NSW.
For local fire brigades and community organisations, the Amendments with immediate effect disallow any firefighting demonstrations or training exercises with PFAS foam. Such organisations must be aware of any equipment that contains PFAS foam, and manage it accordingly.
For more commercial and large-scale practices, including the general use of PFAS foam outside firefighting training and the sale of PFAS foam extinguishers, the Amendments allow a period of time to switch from PFAS foam until 26 September 2022.
This article was written by Paul Lalich, Partner and Jordie Pettit, Law Graduate.