6.1
This chapter addresses the following term of reference:
(e) the adequacy of Commonwealth and state and territory government environmental and human health standards and legislation, and any other relevant legislation.
6.2
The chapter includes:
a discussion of human health and environmental standards that have been developed, or are under consideration, in relation to PFAS;
a discussion of existing measures and proposals for the regulation of PFAS chemicals in Australia;
a discussion of issues that were brought to the Committee’s attention in relation to the environmental regulation of Commonwealth land; and
the Committee’s comments and recommendations.
Environmental and human health standards
Health-based guidance values
6.3
Food Standards Australia New Zealand has developed health based guidance values for PFOS, PFOA and PFHxS for use in site investigations and human health risk assessments in Australia. These guidance values were published by the Department of Health in 2017, and replaced interim human health reference values adopted by enHealth in June 2016. The current guidance values are provided in Table 6.1.
Table 6.1: Australian health based guidance values for PFAS chemicals
|
|
|
|
|
|
|
|
|
|
Tolerable daily intake (ng or µg / kg bw/day)
|
20
|
0.02
|
160
|
0.16
|
|
Drinking water quality value
(ng or µg /L)
|
70
|
0.07
|
560
|
0.56
|
|
Recreational water quality value
(ng or µg /L)
|
700
|
0.7
|
5 600
|
5.6
|
Source: Department of Health, Health Based Guidance Values for PFAS
6.4
The Australian Government advised that the health based guidance values are for use ‘specifically in site investigations and if required, human health risk assessments, in Australia’. It described the values as:
… a precautionary measure to ensure information is available to communities to reduce their exposure to PFAS whilst further research is undertaken to understand any potential human health effects.
6.5
The Government also reported that it had commissioned the National Health and Medical Research Council to consider the health based guidance values for PFOS, PFOA and PFHxS for inclusion in the Australian Drinking Water Guidelines and the Guidelines for Managing Risks in Recreational Water. It expected this work to be completed by the end of 2018.
6.6
The Coalition Against PFAS cautioned that since there had been multiple changes to the tolerable daily intake levels used by Australian authorities since 2016, communities felt sceptical about these levels. It noted that many people were of the view that exposure should be reduced to zero so far as possible, as no one could say with any certainty that any amount of PFAS in the body is ‘safe’.
Food standards
6.7
Some residents raised concerns that, while they were advised against consuming home grown produce, tolerable daily intake values were not relevant to them due to the already high levels of PFAS in their blood. They noted that they had no way of knowing whether products bought at a supermarket were contaminated, as there are no labelling requirements or restrictions on selling such produce.
6.8
The Coalition Against PFAS described this situation as ‘contradictory and illogical’, and noted that some farmers had elected to stop selling altogether in order to prevent contaminated produce from entering the nation’s food supply. The group also highlighted biosecurity risks faced by livestock producers in some areas, and attached correspondence from three separate cattle breeders associations who had written to the Government to warn of ‘potentially catastrophic’ consequences to producers’ livelihoods, Australia’s export markets and the beef industry as a whole. The Coalition Against PFAS called for the Government to ‘take a clear and reasonable position on biosecurity’.
6.9
Ms Dianne Priddle, a stud cattle producer in Oakey, told the Committee that consumers had a right to know whether products were contaminated by PFAS:
We all trade on our image which is clean and green within Australia and the world. … The consumers have the right to know—and they want to know—what they are eating in Australia and how we produced that item. Yet at assessments and walk-in sessions given by Defence and AECOM, the question has been asked and the answer given that the public does not have the right to know if PFAS contamination is in the product. This is a double standard.
6.10
Tracey Anton, of the Latrobe Valley in Victoria, similarly raised concerns that either the Government was allowing PFAS contaminated agricultural produce to be exported, or it was being distributed in the domestic market while ‘denying a person a right to choose between contaminated and non-contaminated foodstuff’.
6.11
The Victorian Government submitted that a ‘lack of nationally regulated maximum levels for PFAS in foods complicates the provision of defensible advice to agriculture producers, including livestock producers and meat processors’. However, it noted that the health-based guidance values developed by Food Standards Australia New Zealand had provided some clarity and consistency across jurisdictions.
6.12
Food Standards Australia and New Zealand conducts the Australian Total Diet Survey approximately every two years as part of its role to monitor the food supply to ensure that existing food regulatory measures provide adequate protection of consumer health and safety. The Government informed the Committee that PFAS are to be included in the next survey, to be conducted in 2019.
6.13
At the public hearing in Canberra, the Department of Agriculture and Water Resources advised that there were currently no internationally set maximum residue levels for PFAS in any food, including meat exports. As such, no countries had reporting on PFAS as a trade requirement.
6.14
Food Standards Australia and New Zealand told the Committee that currently, there was not enough data in the general food supply to establish legal PFAS limits. It noted that, based on overseas studies and the ‘little amount of data that we have’, the background levels of PFAS ‘are extremely low’. As a result, it questioned whether a standard, which would be set for general population exposures, would be beneficial to public health. However, Food Standards Australia and New Zealand noted that the 2019 Total Diet Survey would ‘inform more discussion on whether or not standards are warranted and whether or not they could be set for these chemicals’.
Environmental management
6.15
The Australian Government advised that Commonwealth Environmental Management Guidance on PFOS and PFOA had first been developed by the Department of Environment and Energy in December 2016. The Guidance aimed to establish a ‘nationally consistent framework for diagnosis and action on environmental contamination’, and set proposed investigation levels for soil, ecological water resources and waste management. The Guidance was used in the subsequent development of national guidance.
6.16
The PFAS National Environmental Management Plan (NEMP) was jointly developed by Commonwealth, state and territory agencies, and agreed by all Australian environment ministers in January 2018. The NEMP provides environmental guideline values, guidance on environmental assessment and information on recommended approaches to storage, transport and waste management of contaminated materials. As noted earlier in this report, the NEMP is incorporated into the Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination.
6.17
Participants in the inquiry generally expressed support for the NEMP as a means for improving the coordination of investigations between the Commonwealth and state and territory governments, and to make clear the responsibilities of polluters.
Measures to regulate and phase out PFAS
6.18
In May 2000, the 3M company—reportedly the largest worldwide producer of PFOS—announced a voluntary phase-out of PFOS in light of emerging scientific evidence about its persistence in the environment. Since then, the Organisation for Economic Co-operation Development (OECD) has led international collaboration on a number of activities relating to the identification, assessment and management of PFAS chemicals. Since 2002, there has been a trend amongst global manufacturers and downstream users to replaced long-chain PFAS with shorter-chain PFAS, which are less toxic and less bioaccumulative.
PFAS regulation in Australia
National Industrial Chemicals Notification and Assessment Scheme
6.19
Within Australia, the risks associated with the introduction and use of chemicals are assessed under the National Industrial Chemicals Notification and Assessment Scheme (NICNAS). The Australian Inventory of Chemical Substances (AICS)—a legal device that distinguishes new from existing industrial chemicals—is maintained under NICNAS. New chemicals that are not listed on AICS must be notified and assessed before being manufactured or imported into Australia. Due to their history of use in Australia, PFOS and PFOA were ‘grandparented’ onto AICS on its establishment in 1990, without further assessment.
6.20
In 2002, NICNAS identified the importers and users of PFOS in Australia and provided them with information about the hazards that had been identified. It subsequently made recommendations to phase out the use of PFOS and to improve its safe handling. In particular, on 30 April 2003, NICNAS released an alert recommending that PFOS and PFOA firefighting products be restricted to essential use only, and not used for fire training or testing purposes. NICNAS continues to recommend that industry stakeholders ‘actively seek alternatives’ to PFOS, PFOA and their precursors, that existing PFAS stocks be disposed of responsibly on expiry, and that introducers ensure that alternative chemicals are ‘less toxic and less bioaccumulative’.
6.21
The Australian Government described the role of NICNAS as follows:
NICNAS aids in the protection of the Australian people and the environment by assessing the risks of industrial chemicals. NICNAS assessments inform decisions made by a wide range of Commonwealth, state and territory government agencies involved in regulating the control, use, release and disposal of industrial chemicals.
6.22
NICNAS noted in its submission that legislation to implement reforms to the Scheme had been introduced into the Parliament in 2017. NICNAS stated that the reforms (if passed) would allow it to impose conditions on the introduction of higher risk chemicals, including prohibition on the introduction of a chemical if the risks associated with it were unable to be managed.
6.23
At a public hearing, NICNAS advised that it was now looking to apply scrutiny to all chemicals that were ‘grandparented’ in 1990, and confirmed that the proposed reforms would give its Executive Director new powers to be able to ban a chemical ‘if the risks can’t be managed’.
National Standard for Environmental Risk Management of Industrial Chemicals
6.24
The Australian Government described environmental risk management as a ‘gap in Australia’s regulatory system’. In recognition of this gap, it noted that Commonwealth, state and territory environment agencies had been:
… working actively for some time to address weaknesses in environmental regulation of industrial chemicals and enable a robust and nationally consistent framework for managing industrial chemicals throughout their lifecycle.
6.25
To achieve this, the Government reported that a National Standard for Environmental Risk Management of Industrial Chemicals would be established under Commonwealth legislation to ‘implement a decision making framework supported by standards for the management of the ongoing use, storage and disposal of industrial chemicals’. The National Standard would be ‘underpinned by’ risk assessments undertaken by NICNAS, and would have a primary focus on prevention of future contamination events. The Government planned for the National Standard to commence on 1 July 2019, and to be implemented in each jurisdiction.
6.26
At a public hearing, the Department of the Environment and Energy explained that, while primary responsibility for responding to contamination events would continue to rest with the polluter, the proposed national standard would improve the regulatory standards to which polluters would need to comply and improve the ‘tools’ the Department could use to bring about management responses. It noted that the framework was a commitment of the Council of Australian Governments and had been recommended by the Productivity Commission.
6.27
The New South Wales Government expressed a willingness to work with the Commonwealth to develop a National Framework to establish management controls throughout the full chemical cycle.
Current bans and phase-outs
6.28
There is currently no nationwide ban or mandatory restriction on the use of PFAS chemicals. However, in 2016, Queensland introduced (through its Environmental Management of Firefighting Foam Operational Policy) a ban on firefighting foams containing PFOS and PFOA, and a requirement for the products to be phased out by July 2019. South Australia also banned the use of fluorinated fire-fighting foams in the state in early 2018, following amendments to its Environment Protection (Water Quality) Policy 2015.
6.29
Victoria’s Metropolitan Fire and Emergency Services Board (MFB) reported that its formal incident response arrangements with Defence for the delivery of emergency services to Defence bases had, in the past, involved the use of firefighting foams containing PFOS. It noted that, although these foams had ‘proved to be effective in the control or flammable liquid fires’, it had phased out the use of PFAS-containing foams across its operations. MFB explained:
MFB found that the flourine-free foam consistently performed well in extinguishing B Class fires and provided MFB firefighters with a proven ‘safer’ alternative extinguishing medium. This work provided MFB with an operational firefighting foam solution that could be effectively used at Department of Defence sites, such as RAAF Airbases at Point Cook and Laverton. This enables MFB to meet its obligations for the delivery of emergency services to Defence bases using firefighting foam that does not contain PFAS.
6.30
MFB recommended a ‘national coordinated approach’ to PFAS issues, and for the Australian Government to consider banning the use of PFAS-containing foam in Australia. MFB also recommended ratification of the Stockholm Convention on Persistent Organic Pollutants.
International regulation under the Stockholm Convention
6.31
The Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention) is a global treaty to protect human health and the environment from chemicals that remain intact in the environment for long periods, become widely distributed geographically, accumulate in the fatty tissue of humans and wildlife, and have harmful impacts on human health or on the environment. The Convention requires its parties to take measures to eliminate or reduce the release of Persistent Organic Pollutants (POPs) into the environment. The Convention was adopted in 2001 and entered into force in 2004.
6.32
Australia is a party to the Stockholm Convention, which it ratified on 20 May 2004. However, Australia’s ratification was subject to a declaration by which any amendment to the chemicals included in Annex A, B or C of the Convention would need to be individually ratified before entering into force.
6.33
PFOS was listed under Annex B (‘restriction’) of the Stockholm Convention in May 2009. Australia has not yet ratified the listing of PFOS, or any other chemicals that have been added to the Convention since it initially came into force. However, in October 2017 the Department of the Environment and Energy released a Regulation Impact Statement (RIS) on options for a national phase out of PFOS and related chemicals to inform the Government’s decision on ratification of the PFOS amendment to the Convention. The RIS indicated that, out of the four options presented in the document, ratifying the listing of PFOS under the Stockholm Convention and phasing out all non-essential uses would achieve the greatest reduction in emissions at the lowest cost. The consultation on this process closed on 26 February 2018.
6.34
PFOA is not currently listed under the Stockholm Convention. However, in October 2017, the POPs Review Committee (a subsidiary body supporting the Convention) recommended that the Council of Parties to the Convention consider listing the chemical in either Annex A (‘elimination’) or B (‘restriction’), subject to certain exemptions. The next meeting of the Council of Parties is scheduled from 29 April to 10 May 2019.
6.35
Also in October 2017, the POPs Review Committee agreed that PFHxS, its salts and related compounds met the screening criteria in Annex D to the Convention, and established an intersessional working group to prepare a draft risk profile. This draft risk profile was adopted by the POPs Review Committee at its most recent meeting in September 2018.
Stakeholder views
6.36
Many participants in the inquiry called for the Australian Government to ratify the listing of PFOS under the Stockholm Convention.
6.37
For example, the National Toxics Network expressed concern that Australia had still not ratified the listing of PFOS on the Stockholm Convention after nearly a decade. It noted that PFOA and PFHxS were likely to be also listed on the Convention in 2019 and 2021 respectively, and that there are ‘thousands of PFAS chemicals to address, many with little or no information on their toxic effects or environmental fate’. The Network described the time taken for Australia to come to a decision about a single PFAS chemical—PFOS—as ‘simply unsustainable and dangerous’. The Network also criticised decisions to replace PFOS based firefighting foams with other PFAS based chemicals, which it said ‘remain secret under government commercial confidentiality regimes’.
6.38
Dr Andrew Jeremijenko similarly supported ratification of PFOS on the Stockholm Convention, and ratification of the listing of PFOA when it is listed in May 2019. He called for a national ban on PFOS and PFOA, and highlighted a suggestion in the RIS that the Government’s proposed National Standard for Environmental Risk Management of Industrial Chemicals could provide an ‘effective framework’ to control and manage chemicals throughout their lifecycle and an ‘efficient way’ to implement Australia’s obligations.
6.39
Although anticipating opposition from industry to a ban, Dr Jeremijenko noted that many large companies and most state firefighting departments, with the exception of Western Australia, had already changed to fluorine-free foams due to concerns about health effects and financial risks associated with PFAS foams. He described Defence as being ‘really behind the game here’.
6.40
The New South Wales Government advised the Committee that it had made a submission to the Commonwealth on the national phase-out of PFOS, and had supported the ratification of PFOS on the Stockholm Convention and the phase out of its non-essential uses. It noted that Defence continued to use PFAS-based firefighting foams, but ‘may have modified fire training activities to reduce the further impact on the environment’. The New South Wales Government suggested that Defence should consider only using PFAS-based foams in emergency situations, and that it consider the merits of changing to PFAS-free foam, ‘or at the very least, changing to … foams that do not contain (or degrade to) the more hazardous long chain PFASs such as PFOA’.
6.41
The Royal Australasian College of Physicians called for firefighting foam containing PFOA and PFOS to be banned nationally, including a Defence bases, to removed inconsistencies between states, territories and the Commonwealth. It noted that as part of this process, ‘any remaining PFAS material will need to be safely destroyed’ and that ‘contaminated sites will need to be managed according to best practice’ in accordance with the NEMP.
6.42
The United Firefighters Union of Australia expressed concern that some fire services continue to expose firefighters with the use of PFAS foams, despite a number of warnings being issued since 2000 and effective alternatives being identified. The Union recommended ratification of Annex B of the Stockholm Convention, and the introduction of legislation to enforce firefighting water standards; a mandatory ban on the use of PFAS foams; and soil and water testing of all firefighting training sites and other sites where firefighting foams have been used.
6.43
Wilson Consulting emphasised the duty of care of major hazard facilities to ‘not only protect the environment, but also to protect their facility and the community from fire’. Wilson pointed to limitations and dangers in the use of fluorine free foams in certain types of fires, and argued that short-chain PFAS based firefighting foams (i.e. those containing less than or equal to six carbon atoms) were ‘the key way forward across Australia in the future’ due to their effectiveness in fighting fires and minimisation of environmental impacts. Wilson was critical of the policies implemented in Queensland and South Australia, under which short-chain fluorinated chemicals were ‘likely to be incorrectly caught up with’ persistent, bioaccumulative and toxic long-chain chemicals. Wilson recommended that short-chain and long-chain PFAS be treated as separate categories, enabling legacy long-chain chemicals to be restricted, while allowing ‘significantly more environmentally benign’ short-chain agents to continue to be used.
6.44
The national peak industry body representing the fire industry—Fire Protection Association Australia—supported the phase out of all firefighting foam containing PFOS, in line with the Stockholm Convention. However, the Association submitted that it was ‘essential’ that responsible use of foams containing C6 fluorotelomer—a shorter chain PFAS that is an alternative to PFOS—continue to be allowed in high risk firefighting applications. The Association advised that C6 fluorotelomer-based foams retained strong firefighting performance ‘unmatched by most current fluorine free alternatives’ and:
do not break down into chemicals currently listed or suspected of being Persistent Organic Pollutants (POPs) and are not listed by the Stockholm Convention or European Chemicals Agency current (2014) list of substances of very high concern (VHC);
do not contain or break down into PFOS;
are not made with chemicals currently considered to be bio-accumulative or toxic by environmental authorities.
6.45
However, the Association considered that the use of these C6 fluorotelomer foams in training or system testing should be ‘avoided and eliminated where possible’. It noted:
FPA Australia contends that the widespread historical contamination resulting from foams containing PFOS and PFOA is the result of poor past practice in training and testing of systems in which these foams were used frequently with no present fire hazard, not the result of use in responding to actual fire incidents. Consequently, most of this historical contamination could have been prevented by merely changing practices related to training and system testing.
6.46
At a public hearing, NICNAS confirmed that PFOS, PFOA and PFHxS were ‘at the bad end of the PFAS category’ due to their persistent, bio‑accumulative and toxic properties. It advised that there had been a ‘lot of activity’ in moving to ‘semi-substitution’ of those chemicals with shorter chain PFAS chemicals (those containing four or six carbon atoms) that were not as toxic or bio‑accumulative.
6.47
LPG Fire Australia advised that while current National Fire Protection Association standards mandate the use of foam concentrates for Defence hangars, there had been ‘environmentally friendly’ and ‘highly effective’ water-based alternatives installed in several NATO hangars overseas. It considered that Defence has a ‘duty of care to investigate all bone fide, environmentally friendly and equally effective alternative fire systems’ to the current foam systems:
Whilst we openly acknowledge that not all firefighting foams contain PFAS, and that fixed fire fighting foam systems have been globally effective for years in this application, we would like to highlight that the use of water only in a fire tested, approved hangar fire protection system eliminates any potential PFAS contamination risks generated by the firefighting medium itself.
Environmental regulation of Commonwealth land
Cross-jurisdictional issues
6.48
The Government of South Australia submitted that it has ‘serious concerns’ relating to the public disclosure and availability of information held in its EPA Public Register when dealing with Commonwealth land:
The SA EPA currently cannot record any information pertaining to Commonwealth land and this is of particular concern in instances when the land becomes non-Commonwealth and can be on sold repeatedly.
As the SA EPA administers the provision of environmental information (including potential PFAS reporting) during the sale process (section 7 search), the omission of information due to legislative constraints could lead to a false sense of security which increases with each change of ownership (form of data cleansing).
6.49
Port Stephens Council similarly advised the Committee that the land in the Williamtown Management Area is ‘not identified as contaminated in relation to the relevant NSW legislation and established management and mitigation requirements’. The Council submitted:
This creates significant disconnect and confusion, particularly in cases where landowners have been advised their land is contaminated, without the formal requirements for remediation and mitigation works under the relevant NSW legislation. This disconnect only serves to create further confusion and concern for the community.
6.50
The Government of South Australia noted that its EPA has limited jurisdiction to regulate site contamination identified on Commonwealth land or arising from Commonwealth land. It recommended that the Commonwealth consider either establishing an independent Commonwealth regulator, or that states to be given this jurisdiction.
6.51
The Northern Territory EPA similarly highlighted the lack of national laws to address ‘off-site impacts’ from activities emanating from Commonwealth land. It described the lack of an environmental regulator at the national level as the ‘missing link in environmental regulation in Australia’:
This national regulator would have an overarching environmental regulatory role over activities on Commonwealth land amongst other functions such as co-ordination of major issues such as PFAS rather than the current approach of dealing with it in an ad hoc way by a variety of agencies.
6.52
In order to improve the legislative link between the Commonwealth and the states and ‘to ensure environmental pollution and contamination incidents are appropriately managed’, the Port Stephens Council recommended that:
Consideration should be given to the appointment of a Commonwealth environmental regulator and implementation of an environmental regulatory framework overseeing [Department of Defence] activities on Commonwealth land. This regulator should have the necessary provisions to enforce specific remediation and mitigation measures to be implemented for contaminated land similar to the provisions of relevant NSW legislation.
Consideration should be given to a comprehensive review of Commonwealth and state legislation relating to mandatory notifications to environmental agencies across all states when pollution and contamination incidents result from Commonwealth activities.
Consideration should be given to a comprehensive review of legislative provisions to allow state-based environmental agencies (i.e. NSW EPA) to have a greater regulatory role in environmental and contamination incidents where incidents have originated from Commonwealth land. This review must consider a broader regulatory role for the state environmental agencies in the investigation and management of pollution and contamination situations where the pollution and contamination has caused significant impacts off Commonwealth land.
6.53
At a public hearing, Port Stephens Council’s General Manager further explained the rationale behind their proposal for a Commonwealth environmental regulator:
My understanding is the state has no jurisdiction over Commonwealth lands and cannot, as it would with a normal organisation, dictate how things are done. It is treated more as if the Commonwealth were an obliging citizen, rather than it being mandated how it should undertake any remediation program. If there were an environmental regulator or some such organisation that could operate and be seen to be operating with relevant authority and the coordination of all the various agencies that are trying to do their bits and pieces, we may be further advanced than we are.
6.54
The New South Wales Member for Port Stephens, Kate Washington MP, said that the absence of jurisdiction of state agencies for environmental contamination of Defence property, or caused by Defence off their property, was a source of confusion:
This absence of jurisdiction has created a situation where multiple agencies appear to be trying to reach agreement in order to take action. When agreement is not reached, action is compromised or not being taken at all. Defence as the polluter appears to be controlling all of the outcomes. This is an unacceptable power imbalance, leaving families, residents and businesses at the mercy of the agency that failed them from the outset.
6.55
Defence told the Committee that, although in ‘a legalistic and technical way’ it could not be regulated by state environmental protection agencies, it sought to comply with the regulations that exist in each state and territory:
So if we’re disposing of soil and there is an issue, whether it’s PFAS or lead or any other issue, and we need to take it off a base we always go to EPAs and get the relevant permissions and licences before we do that sort of work.
‘Self-regulation’ by Department of Defence
6.56
Several participants in the inquiry expressed concern that, due to deficiencies in the environmental regulation of Commonwealth land, the Department of Defence was effectively ‘self-regulating’ or ‘investigating itself’.
6.57
Some suggested that there was a need for a Commonwealth EPA, or similar Commonwealth regulatory body, to be established. For example, Associate Professor Robert Niven, an environmental contamination expert from the University of New South Wales, recommended the establishment of a Commonwealth EPA with a role that would be limited to lands and responsibilities under Commonwealth jurisdiction.
6.58
Associate Professor Niven submitted that Australia has a ‘strong framework’ for the investigation and remediation of contaminated land, including soils and groundwater, underpinned by the national Environment Protection (Assessment of Site Contamination) Measure 1999. He described this regulatory instrument as ‘technically demanding and nationally consistent’, and the broader framework as ‘greatly beneficial for the nation, enabling the orderly conversion of old industrial land into new housing developments, under a process which is trusted by all parties’.
6.59
However, Associate Professor Niven considered that the current arrangement was ‘seriously flawed’ in that the Commonwealth Department of Environment and Energy did not appear to have a regulatory division equivalent to a state or territory EPA, meaning that ‘each Commonwealth department has become—in effect—its own unofficial environmental regulator’. Associate Professor Niven considered:
that this arrangement ‘does not provide sufficient separation between the regulated and the regulator’;
that ‘many departments … have not held sufficient expertise in environmental contamination to recognise an oncoming problem’;
that ‘for most departments, environmental regulation is not their primary role’; and
‘it does not make sense to create two such unofficial regulatory agencies scattered across two (or possibly more) Commonwealth departments’.
6.60
At a public hearing, Associate Professor Niven acknowledged that there were responsibilities for the protection of the environment under certain Commonwealth legislation, over which the Department of the Environment and Energy had administrative responsibility. However, he said the Department ‘seems to be missing in action from its regulatory responsibilities’, causing those responsibilities to fall to other departments ‘by default’. He considered this situation to be a ‘severe conflict of interest’.
Response from the Government
6.61
In the Australian Government’s submission, Defence agreed that it ‘does not have an environmental management role’ and that it ‘relies on advice from federal, state or territory environmental and health authorities’.
6.62
The Department of the Environment and Energy told the Committee that it already has regulatory powers over Commonwealth agencies and lands under the Environment Protection and Biodiversity Conservation Act 1999(EPBC Act) ‘insofar as the whole environment is affected’. However, it acknowledged that the EPBC Act only applies to new actions, with actions undertaken consistent with past practice having been ‘grandfathered’ when the Act commenced in 2000.
6.63
The Department expressed a concern that, if a Commonwealth EPA were to be established, there would potentially be a ‘reverse problem’ in that there would be ‘a question mark over our jurisdiction in relation to state and territory lands because of the way the Constitution sets out those responsibilities’. On the other hand, the Department considered that the National Standard for Environmental Risk Management of Industrial Chemicals ‘would go some way’ to meeting the ‘sort of outcome’ that a Commonwealth EPA would be intended to achieve.
Committee comment
6.64
The Committee welcomes recent work undertaken across government to finalise Health Based Guidance Values for PFAS, and to develop and implement the PFAS National Environmental Management Plan. These measures provide important nationally consistent standards to guide the ongoing development of policies across a range of agencies at all levels of government.
6.65
The Committee notes concerns raised during the inquiry that the lack of national standards for the regulation of PFAS in food has complicated the provision of advice to agricultural producers. The Committee also notes concerns about the right of consumers—particularly those subject to precautionary advice in relation to PFAS intake—to know when commercially sold produce is contaminated by PFAS. The Committee considers that more work is required in this area, and welcomes the commitment of Food Standards Australia and New Zealand to further examine this issue following the conduct of the 2019 Total Diet Survey.
6.66
The Committee is supportive of measures to permanently ban the use of firefighting foams containing long chain PFAS chemicals, including PFOS and PFOA, at a national level.
6.67
The Committee notes that there appeared to be a broad consensus amongst participants in the inquiry that long-chain PFAS based foams are no longer required for use in firefighting foams. Shorter chain PFAS based foams, which are less toxic and bio-accumulative, have been found to be equally effective and are readily available. Additionally, while there were differing views in regards to their effectiveness, PFAS-free foams also appear to be viable alternatives and are already being used in many instances. While the Committee recognises that there may be some applications where PFAS based foams provide the most effective firefighting performance, it is important that the use of such foams be restricted to essential uses only and that alternatives continue to be explored.
6.68
There also appears to be broad support for Australia’s ratification of the listing of PFOS under Annex B of the Stockholm Convention. This was evidenced both in submissions to this inquiry, and in the public consultation process completed by the Government in February 2018 in relation to the Regulation Impact Statement for a national phase out of PFOS. Despite this support, the Committee notes that more than nine years have passed since PFOS was initially listed under the Convention. Given that PFOA, and potentially PFHxS, are likely to be also listed on the Convention in the near future, the Committee recommends that the ratification of these chemicals be considered far more promptly should these listings occur.
Recommendation 7
6.69
The Committee recommends that the Australian Government implement legislation and policies to:
ban nationally the use of, contain, and ultimately safely destroy, long chain PFAS-based firefighting foams (including those containing PFOS, PFOA and PFHxS);
place appropriate restrictions on the non-essential use of shorter chain PFAS-based foams; and
continue to encourage the use of PFAS-free alternatives wherever possible.
Recommendation 8
6.70
The Committee recommends that the Australian Government urgently ratify the listing of PFOS under the Stockholm Convention on Persistent Organic Pollutants.
Further, the Committee recommends that the Government expedite the process for ratification of PFOA and PFHxS in the event that they are listed under the Stockholm Convention in the future.
6.71
More generally, the issue of PFAS contamination at defence bases has highlighted deficiencies in the environmental regulation of Commonwealth land. While the Department of the Environment and Energy holds some regulatory responsibilities under the EPBC Act, this does not appear to extend to an active role in overseeing the response to contamination events and issuing remediation orders—roles that would be undertaken by state and territory EPAs if a contamination event was to occur on non-Commonwealth land. Despite PFAS contamination emanating from Defence land into surrounding communities, state EPAs have been unable to fill this gap due to jurisdictional limitations. As a result, Defence has been perceived to be self-regulating its own response, and the Department of the Environment and Energy has been described as ‘missing in action’.
6.72
The Committee has considered suggestions that a Commonwealth EPA, or similar, be established to perform this role. Such a body would help pool environmental expertise and resources across the Commonwealth, enabling it to take a more proactive role in responding to contamination. However, it was not clear a whether a Commonwealth EPA will solve the jurisdictional issues that occur when contamination extends across Commonwealth and state boundaries. The Committee notes the Department of the Environment and Energy’s apparent preference for the proposed National Standard for Environmental Risk Management of Industrial Chemicals to be used to improve regulation of chemicals throughout their lifecycle.
6.73
As this issue extends beyond PFAS alone and the terms of reference for the inquiry, the committee was not well positioned to come to a conclusive recommendation about how these issues can be rectified. The Committee recommends that the Government initiate an independent review to further examine the issue of environmental management of Commonwealth land, including the adequacy of current and proposed arrangements and possible options for improvement.
Recommendation 9
6.74
The Committee recommends that the Australian Government initiate an independent review of environmental regulation of Commonwealth land. The review should consider:
the adequacy of current and proposed arrangements to ensure that responses to contamination events originating on Commonwealth land are given appropriate regulatory oversight;
possible measures to enhance the regulatory response to contamination events that cross jurisdictional boundaries;
the relative advantages and disadvantages of establishing a Commonwealth Environmental Protection Agency, or similar body, to regulate Commonwealth lands; and
possible alternative options to enhance regulatory oversight of Commonwealth land, and contamination events emanating from Commonwealth land.
Mr Andrew Laming MPSenator the Hon Ian Macdonald
Chair Chair
PFAS Sub-CommitteeJoint Standing Committee on
Foreign Affairs, Defence and Trade
28 November 201828 November 2018