12/12/23: Australia to Introduce National Controls for PFAS ‘forever chemicals’

Australia to introduce national controls for PFAS ‘forever chemicals’

12/12/23

https://www.pinsentmasons.com/out-law/analysis/national-controls-for-pfas-forever-chemicals

Florence Riviere, Kirstie Richards

Australia plans to introduce national controls on the use, manufacture, import and export of so-called ‘forever chemicals’ – per- and polyfluoroalkyl substances (PFAS) – from 1 July 2025.

The Department of Climate Change, the Environment, Energy and Water (DCCEEW) is proposing to list three PFAS groups – perfluorooctane sulfonic acid (PFOA), perfluorooctanoic acid (PFOS) and perfluorohexane sulfonic acid (PFHxS) – in Schedule 7 of the Industrial Chemicals Environmental Management Standard (IChEMS) Register.

Schedule 7 of the IchEMS Register lists chemicals that cannot be imported, exported, manufactured, or used within Australia as they are likely to cause serious or irreversible harm to the environment. DCCEEW is proposing to include the named chemical groups on the list with effect from 1 July 2025. Manufacturing and distribution businesses should evaluate if and where PFAS chemicals are used in their supply chains and consider alternatives well before this date.

The proposed ban on the manufacture, import, use and export of PFAS and PFAS-containing items is subject to several very limited exceptions where:

  • levels are at or below 0.025 mg/kg for the PFAS chemical and its salts;
  • levels are at or below 1 mg/kg for individual PFAS chemical related compounds or a combination of those components; and
  • for fire-fighting foam or liquid fuel vapour suppression and liquid fuel fire already installed in mobile and fixed systems, levels at or below 0.1 mg/kg for PFAS chemical and its salts.

Exceptions are also available for research or laboratory purposes, or if a hazardous waste permit has been granted. These exceptions will be reviewed by 1 July 2027, and should not be relied on in the longer term.

Why is PFAS a problem?

PFAS refers to a diverse group of synthetic chemicals used for over 50 years in industrial applications, including many consumer products for stain resistance, non-stick materials and waterproofing.

The use of PFAS has resulted in public and regulatory concerns due to the release of these persistent chemicals into the environment. The characteristics that made PFAS attractive in industrial applications – stability and resistance to chemical, thermal, or biological degradation – have now become risks to the environment.

These chemicals don’t break down in the environment due to the way they were manufactured and can travel through the environment. Due to their water solubility, they spread from the source of original pollution. Once they have spread, PFAS persist in the environment as they are resistant to degradation.

PFAS in soil could contaminate groundwater and impact the food production process. They are also extremely mobile in water and can cause widespread contamination in surface and groundwater. Concrete infrastructure can be exposed to contaminated water in many ways, absorbing large amounts of PFAS. Sites using aqueous film-forming foams can be a significant source of PFAS contamination in soil and groundwater.

The Australian regulatory environment

The controls proposed to be introduced under the IChEMS will apply bans, restrictions and risk management measures to importers, manufacturers and users of PFAS chemicals in Australia.

IChEMS is the national approach to managing chemical use, storage, handling and disposal. Under the Industrial Chemicals Environmental Management (Register) Act 2021 (Cth), industrial chemicals circulated in Australia will be listed on the IChEMS Register in 7 schedules based on their environmental risks. The seven schedules are:

  • schedule 1: industrial chemicals that are not appropriate for listing in the other schedules;
  • schedule 2: industrial chemicals that are unlikely to cause harm to the environment;
  • schedule 3: industrial chemicals that have the potential to cause harm to the environment;
  • schedule 4: industrial chemicals that may cause harm to the environment;
  • schedule 5: industrial chemicals that are likely to cause harm to the environment;
  • schedule 6: industrial chemicals that likely to cause serious or irreversible harm to the environment with essential uses;
  • schedule 7: industrial chemicals that are likely to cause serious or irreversible harm to the environment with no essential uses.

PFAS management framework in Australia

State governments are signatories to the Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination, which includes the PFAS National Environmental Management Plan (NEMP)

The NEMP provides governments with a consistent, practical, risk-based framework for the environmental regulation of PFAS-contaminated materials and sites. It is to be an adaptive plan, able to respond to emerging research and knowledge while allowing for the implementation of actions in a way that becomes ‘business as usual’. Three NEMP’s have been developed by the National Chemicals Working Group of the Heads of EPAs Australia and New Zealand.

The Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination came into effect in February 2018 and is an agreement between the Commonwealth and the states and territories to respond consistently to PFAS contamination and ‘supports collaboration and cooperation’ between governments on the issue. While intergovernmental agreements express the commitment of governments to work together on certain objectives or goals, they are not legally binding.

Australia has also ratified the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention). The main objective of the Stockholm Convention is to protect human health and the environment from persistent organic pollutants (POPs). Countries that ratify the Stockholm Convention agree to take measures to eliminate or reduce environmental releases of these POPs. 

Impact on Australian industry

There is growing global concern about potential risks to human health and the environment posed by PFAS. In Australia, there have been several successful class actions brought by landholders impacted by PFAS emanating from defence sites which used PFAS-containing firefighting foam. As an example, the West Gate Tunnel Project encountered issues with the dumping of PFAS-contaminated soil which delayed tunnelling on the project for more than a year.

If implemented post the consultation process, the classification of PFAS chemicals and PeCB in Schedule 7 of the IchEMS will be the most definitive action that the federal government has taken so far. Manufacturers will need to take a fulsome approach to reducing the presence of these chemicals across supply chains as non-compliance will attract liability.

Co-written by Niren Menon of Pinsent Masons.