Regulation of PFAS firefighting foams

The Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021 bans and restricts the use of PFAS firefighting foam in NSW to reduce their impacts on the environment, while still allowing its use for preventing or fighting catastrophic fires by relevant authorities and exempt entities. The Regulation aligns with the National PFAS Position Statement and is the first step to achieving the agreed objectives in the Statement.

The Regulation as made (PDF 170KB) inserts new clauses into the Protection of the Environment Operations (General) Regulation 2009.

What are PFAS?

Per- and poly-fluoroalkyl substances (PFAS) are a large group of manufactured chemicals used in a variety of applications, including in some firefighting foams. Their heat, oil, and water resistance make them effective at suppressing fires, particularly high intensity fires involving combustible accelerants, defined in the Regulation as ‘catastrophic’.

However, these chemicals can harm the environment if not properly contained. Concentrations of PFAS have been detected at sites where PFAS firefighting foams have been used. Based on investigations of PFAS contaminated sites, the ongoing use of PFAS firefighting foam has been identified as a primary cause of PFAS contamination in the environment in NSW.

What has changed

The Regulation comes into effect in stages, as detailed below.

Key changes Timeframe

A ban on the use of all PFAS firefighting foam for the purposes of training or demonstrations

One month after publication of the Regulation (1 April 2021)

A restriction on the use of long-chain PFAS firefighting foam unless used by a relevant authority in response to a ‘catastrophic’ fire (as defined by the Regulation), or by an entity who has been granted an exemption by the EPA. Persons will also be able to use long-chain PFAS firefighting to prevent, extinguish, or attempt to extinguish, a fire on a watercraft in relevant waters.

19 months after publication of the Regulation (26 September 2022)

A restriction on the use of portable fire extinguishers containing PFAS unless used by a relevant authority or those with an exemption in response to a ‘catastrophic fire’. Persons will also be able to use portable fire extinguishers containing PFAS to prevent, extinguish, or attempt to extinguish, a fire on a watercraft in relevant waters.

19 months after publication of the Regulation (26 September 2022)

A restriction on suppliers selling portable fire extinguishers containing PFAS, unless supplying to an entity in NSW that holds a valid exemption, or for use on watercrafts

19 months after publication of the Regulation (26 September 2022)

An exemption process to allow stakeholders to apply for an exemption from a requirement in the Regulation

One month after publication of the Regulation (1 April 2021)

Penalties for individuals and corporations who fail to comply with restrictions outlined in the Regulation

One month after publication of the Regulation (1 April 2021) for the discharge of PFAS firefighting foam in training or demonstrations

19 months after publication of the Regulation (26 September 2022) for the other changes

 

The EPA conducted targeted industry and stakeholder consultation in 2020 to help inform the development of the Regulation. A summary of the consultation outcomes is available in the Consultation Report (PDF 2.1MB) and supplementary Consultation Outcomes summary (PDF 148KB).

Next steps

Guidance

Preliminary guidance to assist individuals and businesses prepare for the commencement of the Regulation is available. The EPA will develop a more comprehensive guidance document. This will assist industry and users of PFAS firefighting foam with compliance, particularly in relation to storage and disposal of PFAS firefighting foam, and de-contamination of existing systems.

Exemption Applications

The EPA is developing an exemption application process and will update stakeholders shortly. Stakeholders wishing to enquire about potential exemptions can contact the EPA via our dedicated mailbox: pfas.regulation@epa.nsw.gov.au However, the EPA encourages individuals and businesses to take the steps necessary to comply with the Regulation.

NSW endorsement of the National PFAS Position Statement

In May 2020, the National PFAS Position Statement was published under the Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination, having been endorsed by most Australian jurisdictions, including NSW. The National PFAS Position Statement articulates the shared view of Australian governments that PFAS use in Australia should be reduced where practicable, to limit further releases of PFAS into the environment.

The Regulation constitutes the first step in the NSW Government’s commitment to supporting the objectives of the National PFAS Position Statement, including:

  • Phasing out ongoing sale or use of products and articles containing long-chain PFAS, for any industrial or commercial application, in line with the Stockholm Convention;
  • Transitioning away from the use of chemicals that cause irreversible or long-term contamination of Australia’s environment, including the use of short-chain PFAS, especially in aqueous film-forming foam (AFFF); and
  • Encouraging entities that currently sell or use long- or short-chain PFAS to develop a strategy that outlines their current uses, and how and when they will transition away from these chemicals.

As part of the NSW Government’s support of these objectives, PFAS-containing firefighting foams will be gradually replaced with appropriate alternatives over time to help minimise risk to the environment.

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