This guidance should be read in conjunction with the application form, below.
Guidance for applying for an exemption
The Protection of the Environment Operations (General) Regulation 2021 (the Regulation) enables the EPA to exempt people, or entities, from any PFAS requirement in the Regulation. Those persons impacted by the Regulation and that cannot comply with a requirement or requirements in Chapter 8, Part 5 of the Regulation by the stated timeframe, may apply to the EPA for an exemption.
This guidance should be read in conjunction with the application form, below.
The NSW Environment Protection Authority has developed this Guidance to assist proponents in 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 September 2021. 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 will not be required unless the new responsible person becomes aware of a change in circumstances, which could affect the conditions under which the exemption was issued.
Applications can be made for any combination of the following three types of exemption:
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:
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.
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 identify 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.
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:
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:
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:
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 until 26 September 2022 is 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:
EPA assessment criteria
In undertaking its assessment, the EPA may consider:
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.
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 may also request further information for the purposes of determining whether to grant an exemption.The EPA will aim to complete the following application assessment tasks within the stated timeframes.
Application task | Timeframe |
---|---|
1. Pre-screening – to ensure all information has been provided |
5 business days from when the Application Form is emailed to the EPA. |
2. Assessment |
30 days for assessment and determination, unless the EPA classifies the application as complex and notifies the applicant that more time is required. This timeframe begins once step 1 has been completed and the EPA has determined that the Application Form is complete. If the EPA requires more information to be provided during the Assessment stage or if a response has been provided to the Applicant for consideration, the timeframe for response stops and begins again when the information or application returns to the EPA. |
3. Determination |
Use this form to apply for an exemption from the provisions of Chapter 8, Part 5 of the Protection of the Environment Operations (General) Regulation 2021 that restrict the use of PFAS firefighting foam.
Applicants should read the guidance sections, above, and refer to the requirements when completing the application.