NSW introduces regulation to ban use of PFAS

The NSW Government has gazetted a new regulation which will ban the use of per- and poly- fluoroalkyl substances (PFAS) from 26 September 2022. NSW follows Queensland (in 2016) and South Australia (in 2018) in seeking to address the cause of this fast growing environmental risk issue.

Snapshot

• The NSW Government has introduced the Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021 (Regulation).
• The ban will come into effect on 26 September 2022, however exemptions may be granted by the NSW Environment Protection Authority (EPA).
• Industry has 18 months to assess the action it needs to take to be compliant in NSW and should be aware that State laws are not all aligned on the use of PFAS.

NSW moves to ban PFAS

The Regulation will make it a criminal offence to:

• use PFAS for the purposes of firefighting training or demonstrations;
• use PFAS except to extinguish a ‘catastrophic’ fire, or fire that has the potential to be catastrophic (a catastrophic fire is defined in the Regulation as being one involving combustible accelerants such as petrol, kerosene, oil, tar, paint or similar); or
• sell a portable fire extinguisher containing the precursor to PFAS firefighting foam.

The maximum penalty for any of the offences above will be $44,000 for a corporation and $22,000 for an individual.

The Regulation provides that the EPA may exempt a person or class of persons from the ban, but does not provide details as to what circumstances might warrant an exemption.

PFAS phase out throughout Australia

Around Australia, PFAS contamination is an issue in some rural and residential areas and is affecting allocation of liability in property transactions and developments, from industrial and mining to renewable energy to residential.

In January 2020, the National Chemicals Working Group of the Heads of EPAs introduced the PFAS National Environmental Management Plan 2.0 (PFAS NEMP).

The PFAS NEMP was developed to provide guidance on:

1. environmental guideline values;
2. soil reuse;
3. wastewater management; and
4. on-site containment.

At the State and Territory level, two other States have implemented PFAS bans:

• Queensland on 7 July 2016 (see Environmental Management of Firefighting Foam Operational Policy dated 7 July 2016); and
• South Australia on 30 January 2018 (see Environment Protection (Water Quality) Policy 2015 under the Environment Protection Act 1993 (SA)).

PFAS use and historical PFAS contamination is otherwise regulated through the usual State and territory pollution laws.

Next steps

The text of the Regulation can be found here.

Industry should carefully consider what actions it may need to take in order to be compliant with the Regulation by 26 September 2022 when the ban comes into effect.

Please get in touch if you would like to discuss implications for your business.

By Rebecca Davie, Senior Associate, Brigitte Rheinberger, Solicitor and Peter Briggs, Partner.