Exemption from the PFAS Firefighting Foam Regulation

The NSW Environment Protection Authority has developed this Guidance to assist proponents that are considering applying for an exemption from the ban on the use of per- and poly-fluoroalkyl substances (PFAS) firefighting foam. This Guidance is intended to provide general advice only and has been compiled in good faith, exercising all due care and attention. No representation is made about the accuracy, completeness or suitability of the information in this publication for any particular purpose.

The information in this Guidance is current as at May 2023. Legal requirements, regulatory processes and policy positions may be subject to change without notice. While we will endeavour to ensure that the information is updated as requirements, policy and processes change, we recommend you independently verify and check the specific requirements that apply to your specific circumstances.

The NSW Environment Protection Authority accepts no responsibility for errors or omissions in this Guidance and will not be liable for any damage, loss or expense which may occur to any person or organisation taking action, or not, on the basis of this Guidance.

The applicant is most likely to be the person or class of persons responsible for managing the use and storage of PFAS firefighting foam. It may be an individual or another legal entity (for example, a corporation). References in this guide to a business are references to the legal entity that operates the business. If another person becomes responsible, that person should advise the EPA within five business days of the change. A new application for an exemption may be required.

Applications can be made for any combination of the following three types of exemption:

• Exemption Type 1: Discharge of PFAS firefighting foam for training or demonstration purposes
• Exemption Type 2: Discharge of prescribed long chain PFAS firefighting foam
• Exemption Type 3: Discharge of PFAS firefighting foam from a portable fire extinguisher.

This section declares the site(s) at which persons or classes of persons are seeking time-limited exemptions from restrictions on the continuing use of PFAS firefighting foam. The EPA can exempt individuals or businesses (and their employees) from the Regulation in relation to:

• one or more of the sites under their management
• one or more of the exemption categories.

Individuals and businesses applying for an exemption(s) must disclose and provide relevant details, such as a map, for each site (where activities otherwise restricted by the Regulation are proposed to continue).

This section seeks information on firefighting foam usage and practices in relation to current and future uses of nominated sites. Assessments will consider business-wide planning and systems across all sites where PFAS firefighting foams are used. Applicants should also disclose any site-specific practices and controls that depart from standard business-wide considerations.

1. Foam composition analysis

Responses should provide detail on chemical compositions, referencing a suitable firefighting foam composition analysis report (from a laboratory that is accredited for the relevant test and matrix) confirming the storage of PFAS firefighting foams.

These reports need to be produced for each site that is the subject of the application form, or the applicant needs to certify that the same report applies.

EPA assessment criteria

In undertaking its assessment, the EPA may consider whether the firefighting foams analysed satisfy any part of the definition of PFAS firefighting foam, and any other factors relevant to the application.

2. Business-wide uses of firefighting foams

Responses should briefly describe the firefighting systems and processes adopted at a business-wide level involving PFAS firefighting foams. Supporting documentation outlining fire suppression systems and operational procedures applying across all nominated sites in Section B are requested.

EPA assessment criteria

In undertaking its assessment, the EPA may consider:

• if and how PFAS firefighting foams are necessary to support safe business operations and production
• any changes proposed that will increase capacity or production levels, or expand the range of products or services offered
• combustible substances used as part of current and future production processes or operations
• types of fire suppression systems in use, including PFAS firefighting foam used and any relevant technical information
• frequency and procedures for testing of fire suppression systems for:
  • prescribed long chain PFAS firefighting foam
  • other PFAS firefighting foam
• storage arrangements for PFAS firefighting foam
• purpose and reasons for the use of PFAS firefighting foams stored on nominated sites
• methods of PFAS firefighting foam delivery (for example, portable extinguishers, response vehicles, pumped from storages, or other methods)
• frequency of replacement and replenishment of PFAS firefighting foam
• financial burden to the entity to change practices within a reasonable timeframe 
• staff training and qualification in use/handling of PFAS firefighting foams
• any other factors that are relevant to the application.

3. Site-specific considerations

This section seeks further information on any specific or unique fire suppression systems involving PFAS firefighting foams in place on the relevant sites managed by the proposed exempt person or class of persons. For each of the sites nominated in Section B, the applicant should provide documentation detailing the systems installed on-site to:

• contain PFAS firefighting foam during use
• safely store, treat and dispose of discharged PFAS firefighting foam and wastewater.

Applicants should provide reference numbers for any Environment Protection Licence(s), Environmental Management Plan(s) or Pollution Incident Response Management Plan(s) that apply on the sites to which exemptions are proposed.

Site plans and images of fire suppression systems, containment, storage locations and facilities, treatment and disposal infrastructure for nominated sites should also accompany the exemption applications.

The applicant should clearly separate the information based on which site it concerns.

EPA assessment criteria

In undertaking its assessment, the EPA may consider:

• methods and processes for PFAS firefighting foam and/or wastewater capture and containment (for example, bunding)
• methods and processes for disposal of PFAS firefighting foam waste and/or wastewater (for example, use of wastewater storage tanks, on-site wastewater treatment, or other approaches)
• any other factors that are relevant to the application.

4. Transition plan to phase out PFAS firefighting foam use

This section seeks information on the reasons and key supporting evidence to justify why exemptions from the Regulation are required. Responses should reference a suitable Transition Plan provided as part of the application. A Transition Plan for each site is expected unless the same Plan applies to all sites.

The EPA expects individuals and businesses to take the steps necessary to comply with the Regulation as a first course of action. The intent of delaying commencement of parts of the Regulation was to allow the time needed for impacted individuals and businesses to put in place alternative arrangements to the use of PFAS firefighting foams.

Applicants should briefly outline Plans for transitioning to alternative firefighting arrangements, such as:

• the reasons to support the ongoing use of PFAS firefighting foam
• type(s) of PFAS firefighting foam proposed for continuing use
• expected timeframes for continuing use
• stages and timeframes for moving to alternatives (including system changeover and decontamination activities).

EPA assessment criteria

In undertaking its assessment, the EPA may consider:

• evidence to support the need of the applicant to continue using PFAS firefighting foams for training and demonstration purposes (Exemption Type 1)
• the applicant’s examination of substitutes to the use of PFAS firefighting foams, and evidence to support why the substitutes examined are not suitable (Exemption Types 2 and 3)
• proposed stages of transition, including time required to changeover or acquire the new or upgraded infrastructure
• any other factors influencing the time required to complete the transition away from use of prescribed long chain PFAS firefighting foam and PFAS firefighting foam extinguishers
• any other factors that are relevant to the application.

Exemptions may be time-bound to ensure regular review and movement towards compliance. Applicants should state the number of months requested for the exemption, and a proposed date for the exemption to expire. If the applicant has applied for an exemption for more than one site, the requested exemption timeframe should be included for each site.

5. Further supporting information

This section enables applicants to provide the EPA with any further information that is relevant to their application and that will assist the assessment process.

The EPA will aim to complete the following application assessment tasks within the stated timeframes.