NSW becomes the second Australian jurisdiction to pass a PFAS ban

By Felicity Rourke, Emily Johnstone
Environment & Planning

Time to take stock of your organisation's PFAS management as regulation expands in Australia 3 min read

Knowledge of the risks posed by PFAS (per- and poly-fluoroalkyl substances), its behaviour in the environment and potential PFAS remediation options continue to evolve rapidly.

Following South Australia's PFAS ban in 2018, New South Wales has just passed regulations to restrict the sale and use of PFAS firefighting foam.

The changes

New regulations ban the use of PFAS-containing firefighting foam in NSW, except in fighting catastrophic fires or where there are special exemptions.

The NSW Environment Protection Authority has also advised it will publish additional guidance material on PFAS management in early 2021, to assist the regulated community to comply with their new obligations. The guidance is likely to address:

  • disposal methods for PFAS-containing firefighting foam, including that PFAS products should not be donated or sold as part of disposal;
  • containment and storage guidance, including where PFAS foam is stockpiled prior to disposal;
  • guidance on testing for PFAS, including for precursor chemicals to firefighting foam; and
  • decontamination of infrastructure used to store PFAS foam.

Having passed the regulations, NSW is now the second jurisdiction in Australia to introduce a ban on use of fluorinated foams, after South Australia introduced a similar ban in 2018. The NSW Government has described the changes as a key step for the state towards achieving the objectives agreed in the National PFAS Position Statement prepared by federal, state and territory governments.

The regulations, which amend the Protection of the Environment Operations (General) Regulation 2009 (NSW), have several objectives, including:

  • from April 2021, to ban the discharge of PFAS firefighting foam for the purposes of firefighting training or demonstrations;
  • from September 2022, to prohibit the discharge of PFAS firefighting foam (ie in fighting fires as well as in training or demonstrations) except in limited special circumstances. Exceptions apply to specified emergency agencies fighting 'catastrophic' or potentially catastrophic fires, and to fighting fires on watercraft in state waters; and
  • from September 2022, to ban the sale of PFAS-containing portable fire extinguishers (max 23kg capacity of precursor chemicals), except where sold to exempt persons (determined by the EPA).

The reforms include a broad power for the EPA to exempt a person or class of persons from aspects of the regulations by order published in the Gazette.

It will be interesting to see whether NSW takes a similar approach to the South Australian ban, where the South Australian EPA has issued a number of temporary exemptions to industry on specified conditions. The NSW EPA has confirmed that exemptions will only be issued on a limited basis, and will be time-bound to encourage prompt movement towards compliance with the new requirements.

Actions you can take now

  • Managers of industrial sites and facilities with firefighting training grounds in NSW should review their use of PFAS-containing products now, in preparation for the new restrictions.
  • The new regulations provide a 19-month transition period for most of the regulated community. Now is the time to review your organisation's fire extinguisher program and devise a plan to replace PFAS-containing products in time for the new laws to commence.
  • Organisations with environmental responsibilities should ensure they keep up to date with the most recent regulatory and industry guidance on PFAS management, which is being released regularly by government departments and state and territory EPAs.
  • Consider seeking advice on appropriate management, storage and disposal of PFAS substances as part of product replacement programs and approaches to management of PFAS impacts from your operations. The PFAS National Environment Management Plan 2.0 provides a practical, national framework for management of PFAS impacts to land and water and should form the basis of risk assessments.