Proposed class action puts Australia’s PFAS policies in the spotlight

2019-11-15

Up to 40,000 people living near defence sites affected

The Australian government is coming under increasing pressure to deal with contamination from per- and polyfluorinated substances (PFASs), after lawyers announced plans for the country’s biggest ever class action. Up to 40,000 people claiming to have been affected by PFAS pollution at and around defence sites plan to sue the government, saying that their property values have plummeted. Australia’s Department of Defence (DoD) has used PFAS in firefighting foams at training facilities across the country since the 1970s and only began to phase out its legacy firefighting foams containing PFOS and PFOA in 2004. It now uses a “more environmentally safe” firefighting product called Ansulite. The DoD is carrying out environmental investigations at 27 of its sites across Australia. In some cases, it has put in place “management activities” to deal with contamination, including a soil treatment plant and water treatment facilities. It also provides bottled water to residents at four sites. In response to a journalist’s question about residents living near RAAF Base Pearce, it stated that “based on the knowledge and evidence currently available, the government is not considering a land purchase programme as a result of PFAS contamination”. In October 2017, the defence department admitted that it should have informed the public sooner about the potential danger of water supplies being contaminated by PFAS. Mariann Lloyd-Smith, senior adviser at NGO National Toxics Network (NTN), is hopeful that the class action may bring a move away from the government’s “state of denial” regarding PFASs. “Until we see a real process of investigation, I have absolutely no confidence that things will change. There is no process by which NGOs or affected communities can be part of the discussion,” she said. In 2018, Australia’s Joint Standing Committee on Foreign Affairs, Defence and Trade established a PFAS sub-committee to look into contamination in and around defence bases. Andrew Laming MP, chair of the sub-committee, wrote that the issue has “driven many otherwise ordinary citizens to organise, conduct research and develop significant expertise in an effort to be heard. It should not take years of campaigning at this level of effort to adequately address the legitimate concerns of communities of people.” The committee recommended that the Australian government review its existing advice on the human health effects of PFAS exposure and “acknowledge the potential links to certain medical conditions”. Although Australia ratified the Stockholm Convention on persistent organic pollutants in 2004, it is yet to do so for the listing of PFOS. The government says that it “must first be able to meet the associated management obligations” as well as implement a national standard.

PFAS management plan

In February 2018, Australia’s environment ministers endorsed the country’s first PFAS National Environment Management Plan (NEMP), which was updated this year. NGOs have been broadly critical of the plan for being industry-focused and “developed behind closed doors, excluding NGOs but involving industry consultants working for Defence,” according to a statement from the NGO International POPs Elimination Network (Ipen). The plan outlines “general environmental obligations concerning PFAS”, including:

  • taking “all reasonable and practicable measures” to prevent or minimise potential environmental harm from PFAS-related activities and contamination;
  • checking the effectiveness of implemented management measures; and
  • ensuring proper disposal of PFAS-contaminated waste.

The 2019 update also provides more detail about PFASs in soil. Australia’s Environmental Health Standing Committee (enHealth) first released PFAS guidance in June 2016, advising that “there is currently no consistent evidence that exposure to PFOS and PFOA causes adverse human health effects”. In June this year, the Department of Health published an updated version, reinforcing advice to avoid exposure but maintaining that “PFAS has not been shown to cause disease in humans”. “Some people who live or work in areas that have been contaminated with PFAS might have been exposed to higher levels through food or drinking water. They are advised to minimise their exposure until there is more known about possible impacts on health,” it said. The Department of Health is funding the Australian National University to conduct an epidemiological study into the potential health effects of PFAS exposure, which is expected to be completed by the end of 2020.

Victoria’s PFAS position

Although each state looks to the NEMP and federal government for guidance, they take separate PFAS positions. The Environment Protection Authority (EPA) in Victoria recently published a position statement. The EPA seeks to minimise PFAS in the environment wherever possible in accordance with the PFAS NEMP, which it took a leading role in developing. Victoria’s environmental protection laws will change in July 2020. They include a so-called general environmental duty (GED), requiring anyone conducting an activity that poses risks to human health and the environment to minimise them. Unlike similar laws in other states and territories, breaching the GED could lead to criminal or civil penalties. The EPA says that its ‘precautionary’ position on PFAS reflects the most up-to-date information from enHealth. At the time of publication, links to the PFAS NEMP, update and guidance appeared to have been removed from the Victoria EPA’s webpages.

Chemical Watch, 6 November 2019
; http://chemicalwatch.com