On 1 March 2021, the NSW Authorities launched the Surroundings Operations (Common) Modification (PFAS Firefighting Foam) Regulation 2021. The Regulation will amend the Safety of the Surroundings Operations (Common) Regulation 2009 and impose a ban on the usage of per- and poly- fluoroalkyl substances (PFAS). NSW is the third jurisdiction in Australia to control PFAS use, and the second jurisdiction to introduce a ban, after Queensland started regulating PFAS-containing firefighting foams in 2016 and South Australia launched an identical ban in 2018.
The Regulation will make it a felony offence to:
- use PFAS firefighting foam for the needs of firefighting coaching or demonstrations;
- use PFAS besides to extinguish a “catastrophic” fireplace, or fireplace that has the potential to be catastrophic (a catastrophic fireplace is outlined within the Regulation to imply a hearth involving a flamable accelerant, together with petrol, kerosene, oil, tar, paint or polar solvents together with ethanol) or to extinguish a hearth on a watercraft in State or prescribed waters; or
- promote a transportable fireplace extinguisher containing the precursor to PFAS firefighting foam.
The utmost penalty for any of those offences shall be $44,000 for an organization and $22,000 for a person.
The Regulation gives for the NSW Surroundings Safety Authority (EPA) to, by order revealed within the NSW Gazette, grant an exemption from the ban to an individual or class of individuals topic to any circumstances the NSW EPA sees match. The Regulation doesn’t present particulars as to what circumstances may warrant an exemption, nevertheless, the NSW EPA has confirmed that exemptions will solely be issued on a restricted foundation and shall be time-bound to encourage motion in the direction of compliance with the Regulation. Additional, exemptions are more likely to solely be offered in restricted circumstances the place a regulated entity has a legitimate trigger to proceed the usage of sure PFAS foams.
The ban on the usage of PFAS firefighting foam for the needs of coaching and demonstrations will come into impact on 1 April 2021 with the opposite restrictions working from 26 September 2022 onwards. The character of the bans and differing implementation timelines align with the truth that whereas PFAS firefighting foams are very efficient at extinguishing catastrophic fires, their use, notably for coaching and demonstration functions, is a key reason for 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 steerage is more likely to embrace info on a variety of subjects, akin to:
- storage (for instance, if PFAS firefighting foam is being stockpiled previous to disposal);
- disposal (together with the truth that disposal mustn’t embrace sale or donation of PFAS firefighting foam);
- testing, together with for precursors to the firefighting foam; and
- de-contamination (of current infrastructure used to retailer PFAS firefighting foam).
Standing of nationwide PFAS phase-out
Regardless of NSW being solely the second Australian jurisdiction to introduce a PFAS ban, progress has been made throughout Australia to handle PFAS.
PFAS Nationwide Environmental Administration Plan 2.0
In January 2020, the Nationwide Chemical substances Working Group, comprised of the Heads of EPAs, launched the PFAS National Environment Management Plan 2.0 (PFAS NEMP 2.0) which has been endorsed by the Commonwealth, state and territory setting ministers. The plan gives steerage across the storage, reuse and disposal of contaminated materials, to facilitate decision-making for administration of web sites impacted by PFAS, and recommends practices to evaluate and deal with any PFAS impacts recognized. The PFAS NEMP 2.0 gives new and revised steerage on 4 areas that had been recognized as pressing priorities within the first model of the NEMP, being:
- environmental guideline values;
- soil reuse;
- wastewater administration; and
- on-site containment.
Nationwide PFAS Place Assertion
The National PFAS Position Statement was ready by Federal, State and Territory governments and articulates a shared view that PFAS use must be diminished the place practicable, to restrict additional PFAS releases into the setting and scale back oblique human publicity to PFAS chemical substances. Australian governments have been collaborating for years in an effort to determine and deal with current PFAS contamination within the setting. Nevertheless, the Place Assertion displays an understanding that extra effort must be centered on stopping additional PFAS releases into the setting.
The NSW Authorities has described its Regulation as a key step for the state in the direction of reaching the goals agreed within the Place Assertion.
Nationwide Customary for Environmental Danger Administration of Industrial Chemical substances
On 7 January 2020, the Australian Authorities launched a draft laws bundle for the National Standard for Environmental Risk Management of Industrial Chemicals together with a draft Industrial Chemical substances Environmental Administration (Register) Invoice 2020. Public Consultation closed on 21 February 2020 and the Bill was launched into Parliament on 3 December 2020. As soon as handed, this laws will enable the Minister to record chemical substances on a brand new public register and set up nationally constant requirements for the administration of listed chemical substances in addition to ban sure PFAS substances in Australia from use by 2022 in keeping with the Stockholm Conference.
Whereas there’s a nationwide framework, it is very important do not forget that PFAS contamination identification, administration and clean-up remains to be regulated as air pollution and contamination underneath varied state and territory legal guidelines.
Affected companies now have 18 months to evaluate their use of PFAS-containing merchandise and discover different methods and practices to be compliant in NSW by September subsequent yr. This may embrace looking for knowledgeable recommendation on the suitable administration, storage and disposal of PFAS-containing substances as a part of any product substitute program that’s established.
Regulated entities must also guarantee to maintain updated with regulatory and trade steerage on the NSW ban and on PFAS administration extra typically as different states transfer in the direction of regulating PFAS use in keeping with the PFAS NEMP 2.0 and the goals of the Place Assertion.