Dealing with Emerging Contaminants – PFOS and other PFCS
Enforcement action (and third party litigation) is being initiated against site operators in a number of Australian States due to the high levels of PFCs present at service stations, military defence areas, mine sites and airports which are affecting sensitive ecological receptors. The potential cost associated with more stringent PFC contamination management and remediation requirements should be considered by PFC-contamination affected site owners and operators, and if necessary, factored into relevant commercial decisions and negotiations where there is evidence of PFC contamination at a particular site.
The Environment Protection Authority in Victoria (EPA) is utilising existing enforcement tools (such as statutory notices) to address management and rectification of PFC contamination. Although the PFC levels referred to in soil and groundwater assessments can often indicate low levels of PFCs being present, best practice can require even low levels to be managed and remediated. This is because PFCs are compounds which are highly bioavailable, have bioaccumulative properties, and are considered to have adverse health effects on sensitive receptors including plants and animals. Unlike hydrocarbon contamination, PFCs do not readily organically degrade in the environment, but instead are capable of spreading across large distances through contaminated soil and groundwater to rapidly enter the ecological food chain.
PFCs have added an extra dimension to environmental assessments (which have historically focussed on traditional analyte detection of substances such as heavy metals/hydrocarbon contamination in soil and groundwater). Sample collection, laboratory analysis and results for PFCs are quite different to the parameters associated with traditional contamination analysis in environmental site assessments, as Australian regulatory bodies are now seeking to regulate even very low levels of PFC contamination.
The Commonwealth Government of Australia has indicated that the current applicable guidelines are being amended providing new requirements and standards for PFC management and remediation. These amended guidelines will apply to the States and Territories in Australia, and will be introduced during 2017/2018. We note that the development of draft standards for PFCs has been 'fast-tracked' due to a recent rise in investigations of sites impacted with these chemicals. New standards for PFCs are proposed to become law by being included in State Environment Protection Policies.
Airservices Australia has identified 56 sites where it has provided fire-fighting services utilising foams containing PFCs. These sites include all of Australia's major airports. Airservices Australia is working with the Commonwealth Department of Infrastructure and Regional Development to prepare a risk based interim decision-making guide and proposed interim contamination screening levels for PFCs in soil, surface and groundwater.
Individual Australian States are also currently seeking to enforce environmental exposure limits through the use of core regulatory tools (for example, a large number of statutory clean-up notices have been recently served on firefighting organisations by the EPA to address widespread PFC soil and groundwater contamination at operational training sites).
Similar legal action against operators of PFC-contaminated sites is also being initiated in a number of interstate and overseas jurisdictions.
The potentially significant cost associated with increasing statutory requirements for management and remediation of PFC contamination should be considered by affected site owners and operators. Where there is evidence of PFC contamination at a site, it is likely that the regulatory response will require that the contamination be remediated by taking prescribed steps within a fixed timeframe. PFC-affected site owners and occupiers should factor the potential cost of complying with statutory remediation requirements into relevant commercial decisions and negotiations, and capital expenditure allocations for proposed environmental site upgrades. Advice should be sought as to the best way to address potential liability for these emerging contaminants.
We are happy to provide further information in relation to these issues.
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