Publication
Second Circuit defers to executive will on application of sovereign immunity
The Second Circuit recently held that federal common law protections of sovereign immunity did not preclude prosecution of a state-owned foreign corporation.
The Perils of PFAS: The PFAS National Environmental Management Plan 2.0
Australia | Publication | July 2020
Content
About this series
Welcome to the third article in our regular series, The Perils of PFAS. This series is designed to help you navigate the issues surrounding PFAS, a contaminant which is garnering greater scrutiny as the knowledge about its impacts continues to evolve.
This article explains the key changes in the recently published PFAS National Environmental Management Plan 2.0 (PFAS NEMP 2.0), which provides the latest national guidance on managing PFAS contamination.
Background – The first PFAS NEMP
Environmental regulators in Australia recognise PFAS as a priority contaminant due to its widespread use, resistance to degradation and uncertain human health and environmental impacts.
In February 2018, the first PFAS National Environmental Management Plan (PFAS NEMP 1.0) was published by the Heads of EPAs Australia and New Zealand (HEPA), which is an informal alliance between Commonwealth, State and Territory environmental regulators, in collaboration with the Commonwealth Department of Agriculture, Water and Environment (formerly the Department of Environment and Energy).
The PFAS NEMP 1.0 aimed to provide nationally consistent guidance for managing PFAS contamination, to be implemented through individual mechanisms and regulatory activities at the State and Territory level.
Due to the evolving nature of the science surrounding PFAS contamination and its impacts, the PFAS NEMP 1.0 established a regular ongoing informal and formal review process and identified priority areas for future work.
Introducing the PFAS NEMP 2.0
During 2018, the National Chemicals Working Group of HEPA commenced work on a draft PFAS NEMP 2.0, with the aim of clarifying the general guidance provided in the PFAS NEMP 1.0 and providing new guidance on the following priority areas:
- Environmental guideline values;
- Soil reuse;
- Wastewater management; and
- On-site containment.
In 2019, the public was consulted on the draft PFAS NEMP 2.0 in each State and Territory jurisdiction.
In early May 2020, the final PFAS NEMP 2.0 was published. The PFAS NEMP 2.0 has since been endorsed by the Environment Minister (or equivalent) in the Commonwealth and most State and Territory jurisdictions, and replaces the PFAS NEMP 1.0 in those jurisdictions.1
As such, the PFAS NEMP 2.0 should now be considered when assessing, managing and remediating confirmed and potential PFAS contaminated sites. In some circumstances, it may also be necessary to consider whether past reports should be updated to accommodate the changes reflected in the PFAS NEMP 2.0.
Summary of the key changes
We set out below a brief summary of key changes in the PFAS NEMP 2.0.
Environmental guideline values
The PFAS NEMP 2.0 revises the human health and ecological guideline values for PFAS contamination, which are used to identify whether PFAS contamination poses an unacceptable risk to human health and/ or the environment. If the concentration of PFAS is found to exceed any of the applicable guideline values, further investigation, and potentially regulation, will be required.
In summary, the key changes to the environmental guidelines values in the PFAS NEMP 2.0 are:
- The human health investigation value for soil for residential land use with garden/ accessible soil has been relaxed in light of newer, more reliable data; and
- The ecological guideline value for indirect exposure to soil (by a secondary consumer) is now the same for all land uses. This amendment recognises that traditional land use categories are not relevant to indirect ecological exposure.
The PFAS NEMP 2.0 notes that, in some circumstances, the guideline value may be overprotective and provides examples where site-specific characteristics may justify the use of a higher value.
Soil re-use
The PFAS NEMP 2.0 provides new guidance on the beneficial reuse of PFAS-contaminated soil without a detailed risk assessment.
A decision tree is provided to guide consideration as to whether re-use is suitable (see Figure 5, PFAS NEMP 2.0). This decision tree must be applied in consultation with the relevant State or Territory environmental regulator. It does not replace environmental legislation, and in many cases, a licence and/ or approval will also be required.
Importantly, the following criteria must be satisfied:
- The concentration of PFAS must be sufficiently low so as not to pose an increased or unacceptable risk to any receptor or to the environmental values of waters (i.e. the criteria for both total concentration AND leachable concentration must be met); and
- The waste hierarchy must be applied, whereby re-use of PFAS-contaminated soil off site may only occur after all other options (i.e. reuse on-site, waste avoidance, waste treatment and volume reduction) have been considered and implemented where reasonable and practicable.
The PFAS NEMP 2.0 recognises that further work is required in collaboration with industry to develop PFAS management criteria for wastewater.
In the meantime, the PFAS NEMP 2.0 encourages water utilities and authorities to develop a PFAS Management Framework to demonstrate compliance to the regulators and to manage the risks that may otherwise arise once management criteria are established. The PFAS Management Framework should address all stages of the wastewater treatment life cycle including the input, processing and output stages. An example framework is provided in Appendix D to the PFAS NEMP 2.0.
On-site containment
Finally, the PFAS NEMP 2.0 provides new guidance for the on-site stockpiling, storage and containment of PFAS-containing material, during the investigation, remediation and/or construction phases of a project or where other treatment/ remediation options are not yet available. This guidance is relevant to projects involving large volumes of material such as:
- PFAS-containing firefighting foam stocks;
- PFAS-containing solid waste e.g. soil and sludge;
- PFAS-contaminated equipment e.g. pumps and pipes; and
- PFAS-contaminated liquids e.g. firewater and landfill leachate.
The PFAS NEMP 2.0 sets out a risk-based management approach for the design of stockpiling, storage and containment infrastructure, whereby the design is proportionate to the level of assessed risk and the length of time the material is proposed to be stored.
Detailed guidance is provided for the design, construction and management of this infrastructure, including the key considerations and requirements. For example, an environmental management, maintenance, and operating plan may be required.
Consideration should also be given to legislative requirements, such as whether a licence and/or approval must be obtained.
Next steps
The PFAS NEMP will continue to be regularly reviewed and updated to reflect scientific developments. Work is already underway on a draft PFAS NEMP 3.0, which is expected to be released for public comment during 2021.
In addition, a formal review of the PFAS NEMP must take place every five years, with the first formal review scheduled for 2023.
To read the full PFAS NEMP 2.0, please click here.
To read our previous articles in this series, please see the following links:
Footnotes
1
As at the time of writing, the Commonwealth Department of Agriculture, Water and Environment’s website reports that the Environment Ministers in Victoria and Queensland are yet to endorse the PFAS NEMP 2.0. For site investigations in those jurisdictions, the environmental regulator should be consulted regarding which PFAS NEMP to apply.
Recent publications
Subscribe and stay up to date with the latest legal news, information and events . . .