13 March 2018

Intergovernmental Agreement on PFAS and the NEMP

The Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination (PFAS IGA), which came into effect on 20 February 2018, sets out the responsibilities and framework for the Commonwealth, State and Territory government to respond to per- and poly-fluroalkyl substances (PFAS) contamination.

The focus of the PFAS IGA is on identifying, investigating and managing PFAS contamination on government-owned sites, or on site where government activities have resulted in PFAS contamination. However, the IGA and supporting PFAS Contamination Response Protocol (Protocol) and National Environmental Management Plan (NEMP) also contain important guidance and expectations of how non-government entities responsible for a PFAS release or contamination should respond.

Introduction

The PFAS IGA, including the Protocol and NEMP, follows the release in October 2017 of the Commonwealth Government’s proposal for ratification of the Stockholm Convention amendment on PFOS to phase out its use in Australia (see related article), and is the next major step towards setting a regulatory framework for dealing with PFAS.

It consolidates the various guidelines and fact sheets which have set health and environmental guidance levels for investigating PFAS in soil and water, and provides a structured framework for how the Commonwealth, State and Territory government will respond to managing historical PFAS contamination and incidents involving a release of PFAS, particularly where contamination crosses jurisdictional boundaries.

The objectives of the governments through the PFAS IGA are to:

  • effectively respond to PFAS contamination to protect the environment, and, as a precaution, protect human health, including immediate responses to identified contamination, and longer term remediation and management responses;
  • strengthen national consistency, collaboration and cooperation in responding to PFAS contamination
  • ensure actions are effective, implementable, financially and logistically sustainable, proportionate to risk, and support economic stability.

Given the size of the PFAS problem and the challenges and limitations of the current remediation technologies to address it, the words in the last bullet point above are important when assessing and planning how a particular PFAS contamination issue should be dealt with.

In addition to setting objectives and principles for how governments will respond to PFAS contamination, the PFAS IGA sets out key areas for action including:

  • following a standard process and existing guidance for responding to PFAS contamination (in accordance with the Protocol) (Appendix A to the PFAS IGA);
  • applying the NEMP (Appendix B);
  • implementing the PFAS Information Sharing, Communication and Engagement Guidelines (Appendix C);
  • applying the guidance material agreed by the relevant national and government expert groups including the human health based and environmental health guidance values for use in investigations and dietary exposure by the Department of Health, enHealth and Food Standards (Appendices D to G).[1]

A review of the PFAS IGA will occur in a year’s time.

PFAS Contamination Response Protocol

The Protocol, Appendix A to the PFAS IGA, sets out the priorities in how governments will respond to PFAS contamination. This involves a fairly standard approach of identifying sites, investigating and assessing risks in accordance with Assessment of Site Contamination NEPM, engaging with stakeholders, and managing risks. It also sets out the roles and responsibilities of key entities including polluters, lessees of government land, the relevant governments, environmental regulators, health, food, primary industry and agricultural agencies, relevant government departments and expert advisers.

The Protocol states that known or potential polluters (including government and non-government entitles) should ‘notify relevant agencies (including the environmental regulator(s)) where an entity has undertaken a PFAS-related activity in another jurisdiction and / or PFAS contamination may have spread into another jurisdiction’. For example, the scenario of the spread of PFAS contamination from the Commonwealth jurisdiction to a State or Territory jurisdiction. This expectation, as the Protocol acknowledges, will be subject to the requirements of relevant Commonwealth and State environment protection and contaminated land legislation for mandatory reporting, as well as common law duty of care considerations.

The Protocol includes an expectation that the polluter or polluters will be the ‘Lead Entities’ in responding to a PFAS contamination issue or incident. It acknowledges that environmental regulators will identify all known polluters. If only one entity is known to or may be the polluter, it will be expected to be the lead entity, and where there are multiple known or potential polluters, they are expected to have a joint responsibility to lead.

The Protocol sets out a number of factors relevant to, and options for, risk management responses including source management, pathway management and receptor management. The Protocol emphasises any response will be commensurate to the level of risk. The decision on the preferred risk management response will depend on a range of factors including:

  • technical consideration (e.g. the level of contamination, hydrogeology, exposure pathways, available technology)
  • community needs
  • financial and logistical feasibility
  • provision of critical public services.

National Environmental Management Plan

The NEMP was prepared by the Heads of EPAs in Australia and New Zealand and was endorsed by Commonwealth, State and Territory governments on 16 February 2018. The NEMP notes that PFAS can be environmentally significant due to its persistence and potential for bioaccumulation and may therefore trigger obligations and duties to prevent environmental harm, nuisances and contamination under relevant environmental legislation. The NEMP goes on to set out the actions that will enable a person or organisation to demonstrate compliance with these obligations and duties, including:

  • determining the PFAS content in products or presence of contamination;
  • understanding the environmental values that can be impacted by PFAS contamination, including determining off-site movements, PFAS transformations and exposure pathways;
  • ensuring PFAS wastes, as well as contaminated materials or products, are effectively stored, remediated or disposed;
  • ensuring appropriate plans are in place to deal with leaks and spillages;
  • ensuring PFAS wastes are properly characterised and disposed of at licensed facilities;
  • undertaking ongoing monitoring of environmental management practices and the impacts of any contamination; and
  • notifying environmental regulators and any other relevant persons or organisations of any incidents or contamination.

The NEMP sets out guidance relating to PFAS monitoring, environmental regulators creating a PFAS inventory in their respective jurisdictions and prioritising sites. A number of regulators, including EPA Victoria, have already contacted industry about identifying current or past use of PFAS-containing products or PFAS-contaminated materials as part of preparing their inventories.

The NEMP also references and summarises environmental and health based guidance values which are to be used in site investigations. Guidance is also provided in relation site assessment (including PFAS sampling and analysis requirements), on-site storage and containment, the transport and reuse of PFAS-contaminated material, treatment and remediation, landfill disposal and trade waste discharge.  In relation to requirements for notification of regulators, the NEMP also acknowledges that mandatory reporting of PFAS contamination will be governed by the particular requirements of local legislative provisions, but states that ‘generally, the environmental regulator should be notified where PFAS are found in the environment and there is a potential risk of adverse impacts to human health or the environment or PFAS have caused land contamination’.

Future work

The NEMP is expected to continue to develop as new information becomes available and PFAS contamination treatment options advance. The first update is expected to be completed by June 2018 and includes review of the ecological guidelines values, soil and waste reuse criteria, criteria for water authorities and utilities, and revision of various guidance notes on treatment and remediation trials, response to uncertainty, monitoring, site prioritisation, sampling and data sharing. 

We will continue to keep you updated as the regulatory landscape relating to PFAS contamination continues to develop. If you have any queries, please contact us.


[1] Department of Health (April 2017), Final Health based guidance values for PFAS for use in site investigations in Australia, see http://www.health.gov.au/internet/main/publishing.nsf/Content/ohp-pfas-hbgv.htm; enHealth Guidance Statements on per- and poly-fluoroalkyl substances (updated September 2017) see http://www.health.gov.au/internet/main/publishing.nsf/Content/health-pubhlth-publicat-environ.htm; Australian Health Protection Principal Committee (AHPPC) Per- and Poly-fluoroalkyl Substances Factsheet (updated June 2016); and Food Regulation Standing Committee Statement Per- and poly-fluoroalkyl substances (PFAS) and the general food supply fact sheet  - see http://foodregulation.gov.au/internet/fr/publishing.nsf/Content/pfas.

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