Regulation of PFAS firefighting foams

Section 14 of the Protection of the Environment Operations (General) Regulation 2022 states that the EPA is the appropriate regulatory authority for matters relating to the discharge of PFAS firefighting foam.

All offences related to the discharge of PFAS firefighting foam have the same maximum court penalty under the Regulation:

• 400 penalty units for a corporation, or
• 200 penalty units for an individual.

Penalty notices of $200 for a corporation and $100 for an individual may also be issued for a PFAS offence under the Regulation.

However, it is possible that substantial maximum court penalties may apply under the Protection of the Environment Operations Act 1997 where an incident involving PFAS has resulted in a water pollution or land pollution offence. Penalty notices may also be issued for those offences.

The Regulation acknowledges the need for access to, and use of, certain PFAS firefighting foams in some situations by:

• Relevant authorities. The Regulation limits the list of ‘relevant authorities’ to Transport for NSW, fire brigades, rural fire brigades, community fire units and the Port Authority of NSW (section 146). The operational needs of these organisations require continuing access to PFAS firefighting foams to respond to high intensity ‘catastrophic fires’ involving combustible accelerants.
• Persons on watercraft. Stakeholders highlighted the heightened dangers created by fires on watercrafts and their potential to pose greater immediate risk to life and safety. This is because crew and passengers are in close proximity to a range of stored combustible substances onboard, and generally have fewer safe evacuation options compared to land-based fires. Therefore, the Regulation affords watercraft fires the same status as ‘catastrophic fires’ and allows the continued use of PFAS firefighting foams.

The EPA may also grant exemptions to a person or class of persons from any of the requirements in the Regulation. However, the EPA expects individuals and businesses to take the steps necessary to comply with the Regulation as a first course of action.

To help ensure targeted restrictions on specific types of PFAS firefighting foam products, PFAS firefighting foams are defined in the Regulation as comprising:

• prescribed long-chain PFAS firefighting foam, or
• all other firefighting foam containing PFAS.

Prescribed long chain PFAS firefighting foam cannot be discharged unless by ‘relevant authorities’, and other EPA-exempted entities to prevent or fight petrol, kerosene, oil, tar, paint or polar solvent fires (defined in the Regulation as ‘catastrophic fires’), or by any person to prevent, extinguish, or attempt to extinguish a fire on a watercraft. These entities require continuing access to prescribed long chain PFAS firefighting foam to address specialised firefighting needs involving combustible solvents.

Portable fire extinguishers containing PFAS cannot be discharged unless used by a relevant authority or those with an exemption. 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.

Individuals or business owners with portable fire extinguishers containing PFAS foam must comply with the restrictions on the use of these extinguishers.

The Regulation only allows ‘relevant authorities’, or exempt persons, to use a portable fire extinguisher containing PFAS firefighting foam to prevent or fight a ‘catastrophic fire’, or any person to prevent a fire on a watercraft.

Extinguishers containing PFAS firefighting foams will no longer be available for purchase other than for these limited reasons.

The Regulation limits the list of ‘relevant authorities’ to Transport for NSW, fire brigades, rural fire brigades, community fire brigades and the Port Authority of NSW. The operational needs of these organisations require continuing access to PFAS firefighting foams to respond to high intensity ‘catastrophic fires’ involving combustible accelerants.

The Regulation adopts the same definition as ‘vessel’ in the Marine Safety Act 1998, which includes “water craft of any description used or capable of being used as a means of transportation on water” (with certain exclusions as listed in the regulations to the Marine Safety Act 1998).

During consultation on the draft Regulation, stakeholders highlighted the heightened dangers created by fires on watercraft. Fires on watercraft have potential to pose greater immediate risk to life and safety. This is because crew and passengers are in close proximity to a range of stored combustible substances onboard, and generally have fewer safe evacuation options compared to land-based fires. Therefore, the Regulation affords watercraft fires the same status as ‘catastrophic fires’ and allows the continued use of PFAS firefighting foams.

The Regulation restricts the sale of portable fire extinguishers containing PFAS unless sold to a ‘relevant authority’, person who is the owner or master of a watercraft, or a person who has an exemption to use a portable fire extinguisher containing PFAS firefighting foam.

This change will assist residents and business owners to comply with the requirement to not use portable fire extinguishers containing PFAS firefighting foam. This is because in most cases they will not be able to purchase a portable fire extinguisher containing PFAS firefighting foam, unless exempted. If the individual or business owner is sold a portable fire extinguisher containing PFAS, they must still comply with the restrictions on the use of portable fire extinguishers containing PFAS firefighting foam.

NSW EPA expects individuals and businesses to take the steps necessary to comply with the Regulation as a first course of action, such as:

• switching to a PFAS-free firefighting foam
• asking the supplier or manufacturer whether they have an alternative PFAS-free firefighting foam suitable for your circumstances
• checking the chemical composition of a PFAS firefighting foam with the supplier/manufacturer or through laboratory testing to confirm whether an exemption is needed
• considering all other possible alternatives that do not require applying for an exemption.

We have developed an Exemption Application Form and Guidance for stakeholders wishing to apply for an exemption from a requirement or requirements in the Regulation. Individuals and businesses are strongly encouraged to exhaust all of the above suggestions before applying for an exemption.

All users of PFAS firefighting foam, including exempt entities, will remain liable to penalties and prosecution if runoff from PFAS discharge is unsatisfactorily contained in line with requirements of the Protection of the Environment Operations Act 1997. The Regulation makes the EPA the appropriate regulatory authority responsible for enforcement and compliance relating to the discharge of PFAS firefighting foam.

Individuals and businesses should approach their portable extinguisher and firefighting foam suppliers to discuss options for changing out PFAS firefighting foam extinguishers. Most suppliers of firefighting foams provide services to periodically check and replace portable extinguishers or the concentrated firefighting liquid they contain (referred to in the Regulation as “precursor”).

It is not an offence to possess portable fire extinguishers containing PFAS. Individuals and businesses can continue to have them stored on their premises until arrangements for safe disposal can be made. 

Queensland and South Australia also have requirements in place to phase out the use of firefighting foams containing PFAS. As part of the coordination of government responses to the management of PFAS, the Commonwealth has also published the National PFAS Position Statement that sets out nationally agreed objectives to reduce or phase out products and articles containing PFAS. The Regulation aligns with the National PFAS Position Statement and is the first step to achieving its objectives.

While PFAS have been used in a broad range of other products and applications, volumes are typically smaller compared to their use in firefighting foams. Additionally, concentrations of PFAS have been detected at sites where PFAS firefighting foams have been used. Based on investigations of PFAS contaminated sites, PFAS firefighting foam has been identified as a primary cause of PFAS contamination in the environment. Effective management of PFAS contamination from firefighting foam will therefore provide the greatest benefits in the first instance.

The NSW Government is allowing the continued use of PFAS firefighting foam in catastrophic circumstances or when there is an ongoing need, such as where:

• PFAS firefighting foam is the only appropriate firefighting foam available
• PFAS firefighting foam is required to be used by law or insurance policies
• businesses need to undertake changes to infrastructure or systems to comply and time is needed to transition to acceptable alternatives. 

The Regulation aligns with the National PFAS Position Statement and is the first step to achieving the agreed objectives in the Statement.

There is general concern on the potential health and environmental impacts from the use of PFAS firefighting foams. The National PFAS Position Statement sets out nationally agreed commitments to restrict the use of short‑chain as well as long‑chain PFAS foam.

The EPA is mindful to ensure any restrictions on the use of PFAS firefighting foam do not cause unreasonable financial and other regulatory burdens to industry, suppliers and users of such foams. Consultation by the EPA in 2018 suggested restricting the use of long-chain PFAS firefighting foam could be feasible and manageable for industry. The Regulation is therefore focused mainly on restricting the use of long-chain PFAS firefighting foam.

As part of this consultation, the EPA also sought feedback on whether it is feasible and reasonable to restrict the use of short-chain PFAS firefighting foam in portable fire extinguishers. The EPA understands from the consultation process that most fires where a portable fire extinguisher would be used, can be effectively extinguished using fluorine free firefighting foam.