The PFAS challenge and South Australia’s response

The impact of PFAS on the environment and what can be done to minimise and regulate that impact, has been the subject of global research and huge debate. PFAS (or Per and Poly-fluoroalkyl substances) comprise over 4,000 artificial chemicals, traditionally present in industrial and consumer products (such as fire-fighting foams, non-stick cookware, furniture, fast-food packaging, carpet stain remover etc.) manufactured since the 1950s. They are understood to be highly persistent (meaning they can effectively resist heat, grease and water), bioaccumulative, toxic to some organisms and are very mobile in water. The persistence of PFAS means that their exposure can be long-standing.  At this stage, the long-term impacts of PFAS are unknown.

For governments and environmental regulators, the challenge that PFAS poses is two-fold: (a) what can be done to minimise the use and spread of PFAS, and (b) how can PFAS-contaminated products, materials, soils etc. be disposed of or destroyed responsibly, without causing environmental harm. In Australia, a collaborative approach between the Commonwealth, States and territories has been adopted with a view to best managing PFAS impacts and preventing further spread. This approach has given rise to the creation of a suite of PFAS-related documents, many of which are appended to the Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination¹. Notably, Appendix B of the Agreement houses the PFAS National Environment Management Plan 2.0 (PFAS NEMP) as agreed to by the Heads of the EPA across the country and new Appendix D comprises the National PFAS Position Statement (NPPS).

As discussed before (see our previous article here), the PFAS NEMP is an environmental guidance which sets recommended standards for best practice management of PFAS contamination across the country. It is a live document and contains information on such topics as: PFAS monitoring and assessment, sampling and techniques for measuring, recommendations on how to manage PFAS-contaminated sites, PFAS disposal to landfill and transport of PFAS-contaminated materials.

The NPPS sets out the shared vision of the Australian federal and state / territory governments on how to reduce the release of PFAS into the environment. It is intended to ‘plug the gaps’ still present in at a statutory level.

South Australia’s approach to dealing with PFAS prevention, contamination and disposal to date has been proactive and in alignment with the NEMP. In local terms, PFAS in South Australia is regulated through the Environment Protection Act 1993 (EP Act), Environment Protection Policies (EPPs) and EPA SA guidelines. In brief, the following should be considered::

1. Everyone is subject to the section 25, general environmental duty not to undertake an activity which pollutes or might pollute the environment unless the all reasonable and practicable measures are taken to prevent or minimise any harm to environment. What is defined as being a ‘pollutant’ in the EP Act is broad and may include PFAS at given concentrations;
2. Any person seeking to undertake a prescribed activity of environmental significance listed at Schedule 1 of the EP Act, must be authorised by the EPA SA in the form of a licence under section 36. PFAS is considered to be a ‘listed waste’ under Part B of Schedule 1 to the Act, which means that any activities involving its production, reception, storage or treatment requires a section 36 licence (clause 3(5)). Indeed, the requirement to have a specific environmental licence to receive, store, treat and dispose of PFAS-contaminated materials above the landfill acceptance criteria in the PFAS NEMP is envisaged in that document; and
3. The obligation to report to the EPA SA any ‘site contamination’ at a particular site or in the vicinity of a site, if it affects or threatens ground water, may meet the definition of ‘site contamination’ at clause 5B of the EP Act if PFAS is discovered at concentrations listed in the PFAS NEMP. This mandatory reporting obligation falls not only to owners or occupiers of impacted sites but also to site contamination auditors or consultants engaged for the purpose of determining whether there is contamination present at the site. The failure to report in accordance with the requirements of the EP Act is actionable and can have serious consequences for parties involved, including steep fines or prosecution. As to the site itself, the EPA can issue orders or require the parties enter into voluntary arrangements to ensure clean-up / remediation.

In addition to the above, South Australia has statutorily led the country in banning fire-fighting foams containing PFAS (specifically, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA)) through its amendments to the Environment Protection (Water Quality) Policy 2015 under the EP Act. Other States are following suit – see our recent article on this here.

So, while South Australia is working to lower PFAS release and regulate future PFAS exposure, what does this mean, in practical and financial terms, for those parties looking to purchase and use / develop land?

In basic terms, we would suggest that the levels of PFAS present (or possibly present) at a site, and the costs associated with any required removal and disposal of PFAS-contaminated material, be factored into the decision-making process around the purchase and use / development of land.

Queries as to whether the existence of PFAS (or potential PFAS) contamination is required to be disclosed at sale has been partially answered by the recent Supreme Court decision of Cheshire v Jennings². This case concerned the issue of whether a contract for the sale and purchase of land around the Edinburgh RAAF Base could be avoided for failure of the vendor to notify the purchaser in its Form 1 of investigations undertaken by the Department of Defence into the existence, nature and extent of PFAS contamination at the Base and in the surrounding areas. The Court held that the duty to disclosure an “environmental assessment” under clause 2(5) of a Form 1 (including any awareness of the potential existence of PFAS in land), was broad, and the investigation should have been disclosed by the vendor. In the circumstances, the purchasers were permitted to avoid the contact for sale, as no notification of the investigation had been provided.

For those needing to dispose of PFAS-contaminated material to landfill above those levels specified in the EPA’s Guidelines³ (and the PFAS NEMP), it should be recognised that South Australia does not currently have a waste disposal or treatment facility which is licenced under the EP Act to accept PFAS-contaminated waste above those concentration levels.

The EPA SA’s recent decision in relation to Southern Waste ResourceCo’s McLaren Vale site, provides a clear indication of how difficult it is to obtain such licences in South Australia – and how prepared the EPA SA is to uphold the precautionary principle⁴ in its licensing of landfills to accept PFAS-contaminated soil and waste. Southern Waste ResourceCo applied to extend its existing waste licence at McLaren Value to include the ability to receive, store, treat and dispose of PFAS-contaminated waste. The EPA SA, after protracted consideration of the proposal which promised best practice engineering practices, held that extending the applicant’s existing licence still presented an “unacceptable level of risk” to the environment, and refused the application.

So, for the time being in any event, those needing to dispose of PFAS-contaminated materials must accept that substantial time and cost will be incurred in transporting and disposing of such materials interstate.

This article was written by Emma Herriman, Partner.

¹ https://www.coag.gov.au/about-coag/agreements/intergovernmental-agreement-national-framework-responding-pfas-07feb20
² Cheshire & Anor v Jennings & Anor (No 2) [2021] SASCFC 11.
³ https://www.epa.sa.gov.au/files/14469_guide_pfas_landfill_disposal.pdf
⁴ The precautionary principle holds that where there are threats of serious or irreversible damage to the environment, a lack of environmental certainty should not be used as a reason for postponing measure to prevent environmental degradation.