A step closer to ratification of the PFOS amendment to the Stockholm Convention

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This article was written by Matthew Austin and Mark Beaufoy.

This week the Department of Environment and Energy released the Consultation Regulatory Impact Statement (RIS) for the National Phase out of PFOS: Ratification of the Stockholm Convention amendment on PFOS.[1]

The Stockholm Convention aims to protect human health and the environment from the effects of persistent organic pollutants (POPs) and sets out a range of control measures to be implemented by the parties, to reduce and, where feasible, eliminate POPs releases. Australia is a party to the Stockholm Convention but has not yet ratified this particular amendment. Perfluorooctane sulfonic acid (PFOS) was listed in the Stockholm Convention on Persistent Organic Pollutants in May 2009.

The Consultation RIS points out that measures to reduce the importation and use of PFOS in Australia have mainly involved a series of non-enforceable recommendations published by NICNAS and voluntary action by industry. There is currently no nationally consistent legislation in Australia to ban or restrict the use of industrial chemicals such as PFOS. If a decision is made to ratify the listing of PFOS under the Convention, new legislation will be needed to phase down or phase out ongoing PFOS uses and prevent uptake of PFOS use by other industries. 

The Consultation RIS proposes a national approach to managing PFOS chemicals on a forward looking basis[2]. A coordinated national approach is intended to reduce difficulties associated with inconsistent regulation across jurisdictions and provide the foundation to minimise future PFOS emissions in accordance with the globally accepted standards established by the Stockholm Convention.

Four strategies have been put forward for comment in the Consultation RIS. The comments received during the consultation phase will help determine whether Australia ratifies the PFOS amendment to the Stockholm Convention. Submissions on the RIS can be made until 18 December 2017.  Importantly the RIS does not deal with issues relating to existing contamination, remediation and management of PFOS and other PFASs. These issues are being considered by a range of state and federal regulatory bodies. 

RIS options

Of the four options for pursuing a national approach to managing PFOS chemicals presented in the Consultation RIS, one option sets out the base case of no regulation at all, another option envisions only a light touch regulation and the remaining two options are consistent with the requirements of the Convention. Options two, three and four would be implemented through new legislation or amendment to existing legislation and policy. 

Option One

No new government regulation of PFOS

Option Two

No ratification of the Stockholm Convention listing of PFOS but implementation of certification requirements

Option Three

Ratification of the Stockholm Convention listing of PFOS and register of permitted uses

Option Four

Ratification of the Stockholm Convention listing of PFOS and the phase out of all non-essential use of PFOS

Feedback received on the different options during the consultation phase and information obtained from consultation with State and Territory governments and industry bodies will inform the Australian Government's decision on which option to pursue. Given numerous layers of emerging State and Federal regulation and guidance, together with recent increased public awareness of PFOS contamination risks, it seems unlikely that the "no further regulation" option will be adopted. 

The Consultation RIS puts forward option four as the Australian Government's preferred national approach to managing PFOS chemicals. Ratification would result in Australia officially recognising PFOS as a listed substance covered by the Convention and align us with the vast majority of the other parties to the Convention, including the European Union, Canada and Japan, who have been subject to the amendment since it came into force in August 2010.  China also recently ratified the listing of PFOS.

As outlined above, this approach involves the ratification of the 2010 Amendment to the Stockholm Convention, which added PFOS requiring Parties to the Convention to restrict the production and use, import and export (except in relation to essential uses where alternatives are not available[3]) and ensuring that any permitted PFOS use is carried out in the manner that prevents or minimises human exposure and release to the environment. PFOS wastes would be required to be identified and regulation made for appropriate disposal. Notably, use of PFOS chemicals in firefighting would be banned and environmentally sound waste disposal would be required for firefighting foam concentrate stocks, firewater, and contaminated soil.  The Government considers this option as financially prudent as it would provide continued access to PFOS-containing essential imports, while mitigating the future costs associated with potential environmental and human health impacts resulting from PFOS use.

The RIS notes that these requirements may be implemented through amendments to state and territory environment protection legislation to include requirements for licensing PFOS use, the storage, disposal and clean up of PFOS-wastes (including destruction) and bans on PFOS releases. Alternatively, the RIS identifies that these objectives could be achieved by regulations made under the Commonwealth Product Stewardship Act 2011. Other reforms to NICNAS and the framework for managing the environmental risks of industrial chemicals in Australia are also anticipated.

Consultation on the RIS closes on 18 December 2017.  If you would like to discuss the options outlined in the Consultation RIS, or make a submission to the Government in response to these proposals and would like our assistance, please contact us.

[1] Department of Environment and Energy, National phase out of PFOS: Ratification of the Stockholm Convention amendments on PFOS: Regulation Impact Statement for consultation, October 2017,

[2] PFOS or perfluorooctane sulfonate is one chemical within the family of per- and polyfluorinated alkyl substances (PFAS).  PFOS and PFOA (Perfluorooctanoic acid) have been the focus of most attention in contamination concerns associated with these substances.

[3] The RIS notes that the only known essential uses of PFOS are in X-ray photography and, possibly, in replacement parts for older medical devices.

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