NSW introduces ban to prevent PFAS contamination

On 1 March 2021, the NSW Government introduced the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021. The Regulation will amend the Protection of the Environment Operations (General) Regulation 2009 and impose a ban on the use of per- and poly- fluoroalkyl substances (PFAS). NSW is the third jurisdiction in Australia to regulate PFAS use, and the second jurisdiction to introduce a ban, after Queensland began regulating PFAS-containing firefighting foams in 2016 and South Australia introduced a similar ban in 2018.

The Regulation will make it a criminal offence to:

• use PFAS firefighting foam for the purposes of firefighting training or demonstrations;
• use PFAS except to extinguish a "catastrophic" fire, or fire that has the potential to be catastrophic (a catastrophic fire is defined in the Regulation to mean a fire involving a combustible accelerant, including petrol, kerosene, oil, tar, paint or polar solvents including ethanol) or to extinguish a fire on a watercraft in State or prescribed waters; or
• sell a portable fire extinguisher containing the precursor to PFAS firefighting foam.

The maximum penalty for any of these offences will be $44,000 for a corporation and $22,000 for an individual.

The Regulation provides for the NSW Environment Protection Authority (EPA) to, by order published in the NSW Gazette, grant an exemption from the ban to a person or class of persons subject to any conditions the NSW EPA sees fit. The Regulation does not provide details as to what circumstances might warrant an exemption, however, the NSW EPA has confirmed that exemptions will only be issued on a limited basis and will be time-bound to encourage movement towards compliance with the Regulation. Further, exemptions are likely to only be provided in limited circumstances where a regulated entity has a valid cause to continue the use of certain PFAS foams.

The ban on the use of PFAS firefighting foam for the purposes of training and demonstrations will come into effect on 1 April 2021 with the other restrictions operating from 26 September 2022 onwards. The nature of the bans and differing implementation timelines align with the fact that while PFAS firefighting foams are very effective at extinguishing catastrophic fires, their use, particularly for training and demonstration purposes, is a key cause of PFAS contamination.

The NSW EPA has advised that it will publish additional guidance material on PFAS management in the first half of 2021 to assist regulated entities in complying with their new obligations.  The guidance is likely to include information on a range of topics, such as:

• containment;
• storage (for example, if PFAS firefighting foam is being stockpiled prior to disposal);
• disposal (including the fact that disposal should not include sale or donation of PFAS firefighting foam);
• testing, including for precursors to the firefighting foam; and
• de-contamination (of existing infrastructure used to store PFAS firefighting foam).

Status of national PFAS phase-out

Despite NSW being only the second Australian jurisdiction to introduce a PFAS ban, progress has been made across Australia to manage PFAS.

PFAS National Environmental Management Plan 2.0

In January 2020, the National Chemicals Working Group, comprised of the Heads of EPAs, introduced the PFAS National Environment Management Plan 2.0 (PFAS NEMP 2.0) which has been endorsed by the Commonwealth, state and territory environment ministers. The plan provides guidance around the storage, reuse and disposal of contaminated material, to facilitate decision-making for management of sites impacted by PFAS, and recommends practices to assess and address any PFAS impacts identified. The PFAS NEMP 2.0 provides new and revised guidance on four areas that were identified as urgent priorities in the first version of the NEMP, being:

• environmental guideline values;
• soil reuse;
• wastewater management; and
• on-site containment.

National PFAS Position Statement

The National PFAS Position Statement was prepared by Federal, State and Territory governments and articulates a shared view that PFAS use should be reduced where practicable, to limit further PFAS releases into the environment and reduce indirect human exposure to PFAS chemicals. Australian governments have been collaborating for years in an effort to identify and treat existing PFAS contamination in the environment. However, the Position Statement reflects an understanding that more effort should be focused on preventing further PFAS releases into the environment.

The NSW Government has described its Regulation as a key step for the state towards achieving the objectives agreed in the Position Statement.

National Standard for Environmental Risk Management of Industrial Chemicals

On 7 January 2020, the Australian Government released a draft legislation package for the National Standard for Environmental Risk Management of Industrial Chemicals including a draft Industrial Chemicals Environmental Management (Register) Bill 2020. Public Consultation closed on 21 February 2020 and the Bill was introduced into Parliament on 3 December 2020. Once passed, this legislation will allow the Minister to list chemicals on a new public register and establish nationally consistent standards for the management of listed chemicals as well as ban certain PFAS substances in Australia from use by 2022 in line with the Stockholm Convention.

While there is a national framework, it is important to remember that PFAS contamination identification, management and clean-up is still regulated as pollution and contamination under various state and territory laws.

Takeaways

Affected businesses now have 18 months to review their use of PFAS-containing products and find alternative systems and practices to be compliant in NSW by September next year. This might include seeking expert advice on the appropriate management, storage and disposal of PFAS-containing substances as part of any product replacement program that is established.

Regulated entities should also ensure to keep up to date with regulatory and industry guidance on the NSW ban and on PFAS management more generally as other states move towards regulating PFAS use in line with the PFAS NEMP 2.0 and the objectives of the Position Statement.