Regulatory responses to PFAS – an emerging contaminant of concern – are evolving. Interim guidelines have been released in various jurisdictions and the mandated clean-up of several PFAS-contaminated sites is underway. Organisations that own, occupy or will be carrying out works on sites potentially impacted by PFAS should take note, and may need to take action. So, here’s a brief snapshot of the regulatory landscape for PFAS, and ten points that organisations which are potentially affected need to consider.
Per- and poly fluorinated alkyl substances (PFAS) are man-made chemicals that have been used since the 1950s to make products that resist heat, stains, grease and water, including carpets, fast food containers, non-stick cookware and firefighting foams.
There are many types of PFAS, however much of the information available focuses on perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA).
PFAS are highly persistent in the environment and can be transported long distances. People and animals can be exposed to PFAS through food, water, and indoor and outdoor dust and air.
Once ingested, PFOS and PFOA are eliminated very slowly from the human body, meaning that they can accumulate over time if continuously consumed. Although the evidence on the health effects of PFAS on humans is not conclusive, it has been shown to have some effects in animals, including benign tumours and impacts on reproduction and development. Some studies have shown links between PFAS exposure and increased blood cholesterol, as well as prostate, kidney and testicular cancers.
Regulatory and advisory bodies are taking note. The National Industrial Chemicals Notification and Assessment Scheme (NICNAS) has recommended that PFOS, PFOA and other related chemicals should continue to be restricted to essential uses where less hazardous alternatives are not available, and that industry should actively seek alternatives to and phase out PFAS.
However, the task of phasing out or phasing down the use of these chemicals may ultimately be dwarfed by the task of managing legacy contamination associated with PFAS, particularly in circumstances where PFAS has not, until very recently, been considered a contaminant of concern by regulators and contaminated land professionals. The difficulty for organisations is to understand whether they are exposed to legacy PFAS risk and, if so, what action can be taken.
The guiding star for the assessment of contaminated sites in Australia is the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM). The NEPM is typically endorsed and implemented in Australian jurisdictions. The NEPM was updated in 2013, shortly before the PFAS debate erupted in earnest, and does not address PFAS contamination.
Notwithstanding, state, territory and Commonwealth governments and environmental protection agencies are increasingly taking a precautionary approach, and some jurisdictions now have interim guidelines and standards for PFAS levels. These interim documents vary as to their coverage. Some focus on contamination levels in waste, whereas others consider contamination levels in aquatic ecosystems, levels in soils or levels in drinking water.
At the Commonwealth level, the Department of Environment and Energy (DEE) has released draft guidance on PFAS that addresses the investigation and response to contamination on Commonwealth owned sites (an important document, noting that a significant number of PFAS source sites are within Commonwealth ownership). It sets out investigation levels for PFOS and PFOA for freshwater, marine water and soils. These levels are derived from a number of Australian and international sources, and are designed for use to indicate whether PFOS and/or PFOA is likely to be a contamination issue for the wider environment and what, if any, management responses are appropriate.
Country-wide health standards have also been released. Following a review by Food Standards Australia New Zealand (FSANZ), the Commonwealth Department of Health has released guidance values for PFAS, for use in site investigations in Australia. The guidelines stipulate a tolerable daily intake of 20 nanograms per kilogram of body weight per day for PFOS, and 160 nanograms per kilogram of body weight per day for PFOA. The drinking water quality value for PFOS is 0.07 micrograms per litre, and 0.56 micrograms per litre for PFOA. A number of the State governments, such as New South Wales, endorse these guidelines.
Western Australia’s Department of Environment Regulation (DER) has also published a guideline setting out interim screening levels for soil, sediment, surface water and groundwater, which adopts the same levels as the DEE guidance in respect of freshwater and addresses waste disposal and treatment options for contaminated areas.
The Queensland Department of Environment and Heritage Protection (EHP) has released an operational policy which requires any firefighting foams that contain PFOS or PFOA at a concentration of 10 mg/kh or 50mg/kg (respectively) to be withdrawn from service as soon as practicable.
Victoria’s Environment Protection Authority (EPA Victoria) has published draft standards for aquatic ecosystem protection, which also adopt the same levels as the DEE guidance in respect of freshwater. It is intended that, once finalised, these guidelines will form part of Victoria’s statutory environmental protection policies.
CRC CARE (a contaminated sites research institute) has also released interim guidance for health and ecological screening levels, which is under review as a result of the new FSANZ standards. The ecological screening levels provide for the same freshwater ecosystem screening levels as those in the DER and DEE Guidelines.
The available guidelines are at this stage interim only. On 28 July 2017, at the latest meeting of environment ministers, state and territory ministers agreed to review by the end of this year a national management plan and standards for PFASs, suggesting that further reform and potentially even harmonisation may be just around the corner.
In Australia, PFAS have been found to have contaminated sites where there has been historical use of fire-fighting foams, such as airports, Defence sites, ports and bulk fuel storage facilities. However PFAS may also affect sites where PFAS was used in manufacturing, as well as waste management sites. Internationally, investigations into PFAS contamination have shown high levels of PFAS in soil, ground water and surface water around factories, metal plating operations, chemical manufacturing plants, transportation facilities and yards, and landfills.
In the United States of America, DuPont, an international science and engineering company, has been found liable for negligence regarding its management of PFOA waste associated with its teflon manufacturing activities. Approximately 3,550 nearby residents whose drinking water was affected by PFAS from a DuPont plant pursued the company for compensation. After defending a number of the claims individually, DuPont and a related entity Chemours are reported to have settled all claims for $670.7 million.
In Australia, PFAS contamination is known to affect a number of Commonwealth owned sites. For example, the Department of Defence is currently investigating a number of RAAF sites in relation to possible PFAS contamination, including at East Sale, Townsville, Amberley and Darwin. Class actions have been brought by residents of Oakey in Queensland and Williamtown in New South Wales against the Department of Defence over firefighting foam containing PFAS leaching from RAAF bases into groundwater.
In addition, Airservices Australia is conducting investigations into PFAS at a number of airports including Brisbane Airport, where 22,000 litres of foam concentrate was accidentally released from a sprinkler system in an airport hangar in April 2017, into Boggy Creek and the Brisbane River. EHP is currently investigating this spill and has advised consumers to limit their consumption of seafood from the investigation area to two to three serves per week.
A number of PFAS investigations are also occurring at the state and territory level. For example, the Northern Territory Environment Protection Authority is conducting preliminary investigations into the presence of fire-fighting foams at more than 20 locations in the Darwin city area. The New South Wales Environment Protection Authority is currently investigating Rural Fire Service Sites at Nowra and Westleigh.
EPA Victoria has issued clean up notices to the CFA in respect of a number of sites including at Penshurst, where PFOS contamination levels above drinking water criteria have been detected in four stock and domestic bores in the local area. It has also issued remedial notices to Esso Australia Pty Ltd for its gas plant at Longford and Qenos Pty Ltd for its chemical plant at Altona.
While there is no generalising actions organisations should take, as a starting point, we have laid out ten initial steps that organisations can take if they own, occupy or are required to carry out works on sites which they suspect are potentially impacted by PFAS contamination:
Establish risk level: Conduct a desktop review of current and historical practices at occupied and owned sites and surrounding land (particularly up-gradient) to determine the likelihood of PFAS having been used. This step is particularly important for transport, logistics and industrial sites where PFAS may have been used in the production process or in firefighting equipment, and waste management sites where PFAS-contaminated waste may have been received. If a desktop review recommends further investigation, intrusive sampling may need to be undertaken to establish whether the site is contaminated with PFAS.
Regulatory reporting: If an occupied or owned site is contaminated with PFAS, consider whether mandatory reporting is required under State or territory environmental law. Even where mandatory reporting is not triggered, carefully consider whether to approach the regulator to establish a remedial program (rather than waiting for the risk to materialise in the form of a regulatory notice).
Clean up: Where PFAS contamination is identified, consider whether a voluntary clean up of contaminated soil and/or groundwater should be carried out.
Human health: If PFAS contamination is present, consider workplace health and safety obligations: are any risks to the health of employees and members of the community being appropriately mitigated?
Corporate governance implications: If PFAS contamination is established, consider the impact on corporate governance and disclosure requirements as this may constitute a new and previously unknown contingent liability.
Recovery against polluter: If PFAS has emanated onto an owned or occupied site, was caused by a previous occupier of the site, or was caused by a co-occupier of the site, establish what rights exist against the polluter and establish a strategy for recovering compensation. Conversely, consider whether the organisation is potentially exposed to litigation by a third party for PFAS pollution which the organisation has caused or allowed.
Land value: To the extent that an organisation’s landholdings are contaminated with PFAS, consider whether this impacts on the value of the land materially. A reduction in the value of land may entitle the owner to a reduction in landholdings costs, such as council rates.
Contaminated spoil: For property developers and contractors who may be required to excavate spoil from project and development sites potentially impacted by PFAS, establish whether the spoil can be reused without treatment and, if not, the likely cost of disposing of or treating contaminated spoil at an appropriately licensed facility.
Contractual relationships: The emergence of a new contaminant of concern may result in unanticipated costs falling on a particular party under contract. In particular, landlords and tenants, vendors and purchasers of land, vendors and purchasers of businesses, and contractors and principals should consider where the risk would fall under existing and, at the due diligence stage, under potential future contracts.
Keeping a watching brief: The evolution of regulatory controls in relation to PFAS may involve public and industry participation. Organisations with an interest in the issue should maintain a watching brief on the evolution of PFAS regulation, and consider making submissions to government when the opportunity arises.
A strategy to identify and manage legacy PFAS contamination needs to be developed carefully on a case by case basis to address the associated regulatory, environmental and human health risks. To support this process, targeted technical and legal advice may be required.
 See, eg, Bartlett v. E.I. Du Pont de Nemours & Co., 2:13-cv-170 (S.D. Ohio Oct. 7, 2015).
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.