Chapter 3
Other Commonwealth, state and territory sites
3.1
This chapter begins with a brief update on evidence received by the
committee on the environmental and human health effects of PFOS and PFOA and
the issue of blood testing since the first report on Williamtown was tabled in
February 2016. It then provides an overview of other Commonwealth, state and
territory sites which have experienced PFOS/PFOA contamination; the different
responses by the Department of Defence, state government authorities and Air
Services Australia; and the regulatory frameworks in place to address legacy
contamination. The chapter concludes with a committee view and recommendations.
The effects of PFOS/PFOA: update
3.2
Further evidence received by the committee regarding the risks that PFOS
and PFOA pose to the environment showed a clear consensus among the experts. This
is best summarised by the submission from the Commonwealth Department of the
Environment (Environment) which described these chemicals as persistent,
bioaccumulative and toxic, noting that 'they persist in the environment for
many years, become more concentrated over time and accumulate up the food
chain, and are toxic to organisms in the environment'.[1]
However, there was considerably less consensus regarding the impact of PFOS and
PFOA on human health.
3.3
Professor Jochen Mueller, a Professor of Environmental Toxicology at the
University of Queensland, explained that risk is a function of the intrinsic
properties of a chemical and the level of exposure and accumulation in the
blood stream, noting that 'it is the dose that makes the toxin'.[2]
Dr Brian Richards, the Director of the National Industrial Chemicals
Notification and Assessment Scheme (NICNAS) agreed, emphasising that it is the
level of exposure or 'dose' that is the subject of ongoing scientific debate, 'When
we talk about what level of exposure a human person needs...to get what adverse
health effects, that is the issue that is the subject of ongoing scientific
debate'.[3]
3.4
On 15 March 2016, the Department of Health published the Environmental
Health Standing Committee of the Australian Health Protection Principle
Committee (enHealth) Guidance Statements on Perfluorinated Chemicals. The
Guidance Statements asserted that 'there is currently no consistent evidence that
exposure to PFOS and PFOA causes adverse human health effects', but that
'because these chemicals persist in humans and the environment, enHealth
recommends that human exposure to these chemicals is minimised as a
precaution'.[4]
NICNAS noted that the scientific literature on the effects of PFOA and PFOS in
humans 'does not give clear, unambiguous results'.[5]
3.5
Dr Mariann Lloyd-Smith, Senior Advisor at the National Toxics Network,
refuted NICNAS and enHealth's assertions regarding the absence of evidence of
the health impacts of PFOS/PFOA, advising the committee that 'there is more
than ample evidence of the health impacts of PFCs':
Animal studies show that PFOS causes testicular and
pancreatic tumours—I think some of the first reports of the toxicity of PFOS
were in 1978 in the literature, and by 1987 its carcinogens had already been
shown in rats— as well as neurotoxicity and immunotoxicity, while human
population studies have linked PFOS with reduced immune responses, preterm
birth and reduced fertility. Similarly, for PFOA, there are numerous adverse
findings from animal studies, while human population studies have focused on
non-occupational exposure of women of reproductive age, and children, and these
have demonstrated impaired neurodevelopment, delayed sexual development,
immunotoxicity and obesity.[6]
3.6
Dr Lloyd-Smith stressed that there is a consensus amongst international
scientists regarding the adverse human health effects of exposure to PFOS and
PFOA.[7]
The Stockholm Convention on Persistent Organic Pollutants (Stockholm
Convention)'s Review Committee recently determined that there was sufficient
evidence of adverse human health effects for PFOA to meet the screening
criterion on adverse effects. The Stockholm Convention's decision states that:
(e) Adverse effects:
(i) There is epidemiological evidence for kidney and
testicular cancer, disruption of thyroid function and endocrine disruption in
women (Steenland et al., 2012; Knox et al., 2011a, b; Melzer et al., 2010; ECHA
2014);
(ii) There exists experimental evidence from animal studies
(Sibinski et al., 1987 and Biegel et al, 2001, cited in ECHA, 2011) that PFOA
induces tumours (e.g., in the liver). Developmental effects have been observed
in mice (e.g. Lau et al., 2006). Postnatal administration of ammonium salts of
PFOA (APFO) in mice indicated adverse effects on mammary gland development
(delayed/stunted) in offspring. Repeated oral exposure of several species to
PFOA showed adverse effects such as mortality, reduced body weight gain,
cyanosis and liver cell degeneration and necrosis (ECHA, 2011). Mothers excrete
PFOA via breast milk, which causes concern for the health of breastfed infants
(ECHA, 2011).
There is sufficient evidence that PFOA meets the criterion on
adverse effects.[8]
3.7
Dr Lloyd-Smith described the government's assertion that there is no
consistent evidence of harm on health as 'sheer dishonesty' suggesting that the
government is reluctant to acknowledge international scientific studies and
determinations regarding the adverse health effects of PFOS and PFOA due to
fears of exposing itself to liability:
The scientific data is there and there is certainly consensus
with international scientists, because the POPs review committee is made up of
international scientists put there by the various countries of the world. There
is no debate or discussion there. I have suggested that perhaps the reason that
government is trying to downplay the seriousness of this contamination is an
attempt to downplay their liability, because once you accept that there is a
problem they are going to have to resolve the problem with the residents living
there. They cannot continue to live on contaminated land or to eat contaminated
produce, and that means big liability.
...
Certainly with workers there is a major problem with
liability and, even if you look at some of the firefighters, you will see that
the levels of contaminants in their blood are well over those of the average
population. So yes, there are liability issues, and I can only assume that that
is why there is this downplaying. But I have to say, when I hear statements
that there is no consistent scientific evidence of harm on health, that it is
just sheer dishonesty. I am sorry, but I found it very, very difficult to
listen to some of those comments.[9]
3.8
The lack of consensus regarding the effect of PFOS/PFOA on human health
has resulted in conflicting advice and confusion regarding what is and is not
considered safe. Shine Lawyers highlighted the lack of consistency in the
health guidelines and statements issued by various Commonwealth and state
agencies regarding PFOS and PFOA contamination. Mr Peter Shannon noted that:
For instance, Defence says at paragraph 20 of its submission
87:
Defence understands that the
primary pathway for ingestion of this product is through drinking water or
eating food containing these chemicals.
...Defence go on to say:
Primary producers have not been
advised to stop using bore water to water vegetables or crops, or as drinking
water for stock.
That is notwithstanding that, some paragraphs earlier, they
are saying that exposure through eating products is an issue. So there is a
fair bit of inconsistency there. Part of the reason people are confused is that
Defence has maintained that position. We then get the New South Wales
Department of Health saying:
Don't eat fish, prawns or oysters
from the following areas—
And then they identify those with PFOAs contamination in
relation to Williamtown.
Don't drink or prepare food with
bore water from this area. It is safe to drink water from the reticulated water
supply (town water).
Which is clear in Williamtown.
Don't eat eggs from your own back
yard.
And:
Don't drink milk from cows or
goats grazing in this area.
Even the Queensland Department of Health, in a brochure that
was circulated for a while and does not appear to be easy to locate anymore,
says:
There is no conclusive evidence at
this stage which links exposure to these chemicals with long term adverse
health effects in humans such as cancer.
It goes on to say:
It is safe to drink water from the
town water and to consume commercial produce from the Oakey area.
So there is this continual
inconsistency.[10]
Blood testing
3.9
A number of submissions emphasised the need for blood testing for
current and former workers and current and former nearby residents at sites
where firefighting foams containing PFOS and PFOA have been used.[11]
However, the enHealth Guidance Statements recommended against blood testing for
PFOS/PFOA, stating that 'blood testing has no current value in informing
clinical management':
There is currently no accepted clinical treatment to reduce
levels of PFCs in the human body. Given the uncertainty that PFCs are directly
linked to adverse health outcomes, blood tests cannot determine if the PFC
levels in a person's blood will make them sick now or later in life.
Therefore, blood tests are not recommended to determine
whether any medical condition is attributable to exposure to PFOS or PFOA and
have no current value in informing clinical management, including diagnosis,
treatment or prognosis in terms of increased risk of particular conditions over
time.[12]
3.10
The enHealth Guidance Statements' advice regarding blood testing was
supported by the New South Wales Chief Scientist and Engineer, Professor Mary
O'Kane AC,[13]
as well as the Queensland Government.[14]
However, the Victorian Government advised the committee that it is utilising
blood testing as part of its response to the contamination from the CFA
Training College at Fiskville.[15]
3.11
Dr Lloyd-Smith disagreed, asserting that people who may have been
exposed to PFOS/PFOA have a right to know what is in their bodies and that
their doctors need to know if they have high levels of PFOS/PFOA. Dr Lloyd-Smith
recommended that regular blood testing be conducted, especially for children
and women of reproductive age.[16]
3.12
Shine Lawyers criticised the government for waiting for scientific
certainty before taking action, asserting that 'any approach to health issues
should be one adopting a precautionary approach and not one requiring
scientific certainty before so acting'.[17]
Mr Rory Ross, Senior Solicitor at Shine Lawyers, told the committee that
overseas jurisdictions have conducted blood testing at all PFOS groundwater
contamination events:
In the Ohio Valley in the United States, we understand that
69,030 people were blood tested. I understand they were tested for nine
different PFCs. In Decatur, Alabama, 155 people were blood tested for PFC
exposure. The Pease trade port in New Hampshire, to date, 1,874 people have
been blood tested. East Metro Minnesota, 205 people blood tested. Arnsberg,
Germany, 179 children aged five to six, 317 mothers aged 23 to 49, and 204 men.
Lake Mohne, in Germany, 99 men and six women. Ronneby in Sweden— and this is a
very interesting study—3,000-plus residents have been blood tested, in a town
with a population of approximately 9,000 people. It is a few kilometres
downstream of a Swedish air base with a very similar type of groundwater issue.
In addition to the 3,000 that have been tested there is a representative sample
of 113 residents from that town, aged four to 83, who from 2014 to 2015 were
blood tested every three months, and from 2015 to date and ongoing are being
blood tested every six months.[18]
3.13
The enHealth Guidance Statements acknowledged that blood samples have
been collected overseas as part of ongoing investigations into PFC
contamination of soil and water, but stated that the value of blood testing is
limited and frequent blood monitoring is of no value:
It is noted that various organisations around the world have
collected blood samples from people as part of ongoing investigations into PFC
contamination of soil and water. The purpose of these tests was either a part
of a defined research program, or to determine how much of these chemicals may
be entering a person's body. The value of blood testing is limited to assessing
exposure, such as monitoring over time, which may help to determine the success
of exposure reduction measures. However, given the long biological half-life of
PFCs, frequent blood monitoring is of no value.[19]
Contaminated sites
3.14
PFOS and PFOA contamination is not limited to Williamstown and Oakey. A
number of other sites were identified to the committee, including Defence
properties, airports, and other sites such as firefighting training grounds.
Defence sites
3.15
The Department of Defence advised the committee that it has undertaken a
'desktop review' of its entire estate to 'determine where and how [Aqueous Film
Forming Foam] (AFFF) was used and whether it is possible that the historical
use may have affected soil, groundwater and surface water'. This review
identified:
-
16 properties as 'category one' sites, which 'are known or likely
to have used substantial quantities of PFOS/PFOA on site' (in addition to Oakey
and Williamtown);
-
20 properties as 'category two' sites, where 'available
information has shown some uncertainty as to either the potential for
substantial PFOS/PFOA use on the property or for offsite migration'; and
-
31 properties as 'category three', which 'present a low potential
for substantial PFOS/PFOA to be present either on or off the property'.[20]
3.16
The 16 'category one' properties identified for detailed environmental
investigation of PFOS and PFOA are: Jervis Bay Range Facility, ACT; RAAF Base
Richmond, NSW; Holsworthy Barracks, NSW; HMAS Albatross, NSW; RAAF Base Wagga,
NSW; RAAF Base Tindal, NT; RAAF Base Darwin, NT; Robertson Barracks, NT; RAAF
Base Townsville, QLD; RAAF Base Amberley, QLD; RAAF Base Edinburgh, SA; RAAF
Base East Sale, VIC; Bandiana Military Area, VIC; HMAS Cerberus, VIC; HMAS
Stirling, Fleet Base West, WA; and RAAF Base Pearce, WA. The order of the
properties listed does not indicate the level of risk of potential
contamination.[21]
3.17
Defence advised that it intends to commence detailed environmental
investigations at three 'category one' bases in early 2016: RAAF Base Pearce in
WA, RAAF Base East Sale in Victoria and HMAS Albatross in NSW.[22]
Airports
3.18
Airservices Australia advised that its investigations identified 56
sites where aviation rescue firefighting (ARFF) services at airports were
provided, of which:
-
36 sites (both current and historical) have, or are suspected of
having, perfluorinated compounds (PFCs) residues as a result of AFFF use; and
-
20 sites where AFFFs have not been used.[23]
3.19
A detailed list of current and historical sites where ARFF services were
provided, including the foams used at each site, is included at Appendix 7.
Other sites
3.20
The committee received evidence that the historical use of firefighting
foams containing PFOS and PFOA at other sites, such as firefighting training
colleges, may have led to PFOS and PFOA contamination of the surrounding
environment. The Victorian Government advised the committee that it is
currently investigating potential PFC contamination at a number of sites across
the state, primarily focusing on Victorian Country Fire Authority (CFA) sites
such as the CFA Training College at Fiskville.[24]
Response of authorities
3.21
Commonwealth, state and territory governments have each responded to PFOS
and PFOA contamination in different ways, with some states and organisations
taking precautionary and proactive steps to address concerns regarding
contamination, human health, and compensation, whilst others, such as Defence,
have adopted a more guarded and reactive approach. The Department of the Environment
advised the committee that it is 'collaborating with its Commonwealth and state
and territory counterparts as part of a whole-of-government response to legacy
contamination' and outlined the key areas of responsibility and actions taken:
-
health standards and measures: the Commonwealth Department
of Health and relevant state and territory agencies are considering appropriate
health standards and measures associated with PFOS and PFOA contamination;
-
contamination on Commonwealth land: Commonwealth
landowners, such as Defence, are responsible for investigating and managing
potential contamination on their sites;
-
contamination on state and territory land: states and
territories are primarily responsible for environmental protection and waste
disposal where contamination or waste disposal occurs on state and territory
land;
-
environmental protection regulation policy and standards:
Environment and relevant state and territory agencies are considering
appropriate standards and measures association with PFOS and PFOA contamination.
In addition, Commonwealth environmental assessment and approval processes will
be required when any new action related to PFOS and PFOA is likely to have a
significant impact on a nationally protected matter under Part 3 of the Environment
Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act),
including on Commonwealth land. This includes actions that are likely to
significantly impact the 'whole of the environment', but only in those
instances where the actions affect, or are taken on, Commonwealth land, or are
carried out by a Commonwealth agency.[25]
Stockholm Convention Annex B
3.22
In 2010, PFOS was listed as one of nine new substances added as an Annex
B restricted substance in accordance with the Stockholm Convention. A number of
submissions raised concerns that, despite being a signatory of the Convention,
Australia had not yet ratified this addition, calling for the amendment to be
ratified without delay.[26]
Environment advised that any amendments to the annexes of the Stockholm
Convention only enter into force for Australia once the domestic treaty making
process is complete, which includes several stages of analysis, particularly
where new implementation measures are required.[27]
Environment advised that the process has been a 'substantial exercise' and that
a Regulatory Impact Statement on PFOS is due for release in mid-2006:
That has been a very substantial exercise and it is probably
worth me just touching on some of the work that has gone into that. We have had
to do a very significant amount of technical, scientific and regulatory
analysis to underpin that, including looking at all of the restrictions and how
they might work under the convention and the management options that would
exist within Australia to deal with particular obligations. To do that we have
looked at both validating and understanding better past and current uses of PFOS
in Australia, in terms of how they have been used. We have looked at where
imported articles have contained PFOS and how that impacts this. We have looked
at how you could treat PFOS waste in Australia—the capability we have to deal
with the waste. We have looked at trying to understand better the environmental
fate of PFOS that has been used—where it ends up and what it affects. We have
looked at whether PFOS is present in sewage treatment plant effluent or
biosolids that are then subsequently spread onto land, and we have also been
attempting to understand the mechanisms that might be used to implement
particular measures if the government chooses to ratify.[28]
3.23
In 2015, PFOA passed the Annex D stage but will not be considered for
listing by the Convention until 2019 at the earliest.[29]
Department of Defence
3.24
Defence's response to PFOS and PFOA contamination has been slow and reactive,
seemingly focused on limiting its liability rather than addressing the needs of
residents. Defence noted that unacceptable levels of exposure to PFOS and PFOA
in soil, groundwater and surface water have yet to be determined in Australia
and that it would not be feasible to determine appropriate long term management
strategies until relevant health and environmental assessment criteria have
been developed. Defence advised the committee that it is developing a national
plan to manage known and potential PFOS/PFOA contamination across the Defence
estate. The plan aims to 'investigate the extent of the contamination and the
potential for human and environmental exposure' and to 'then identify
appropriate interim and long term management strategies'.[30]
3.25
Defence advised that whilst remediation technologies are available for
treatment of PFC contaminated soil, such as thermal desorption, and for the
treatment of reasonably small amounts of waste water, 'there are no proven
options in Australia for large scale remediation activities, particularly with
regard to groundwater remediation'. Furthermore, Defence noted that any
remediation plans would need to be site-specific due to differences in the
hydrology and topography of each site. For example, at RAAF Base Williamtown,
the high water table and complex interplay of surface water and ground water,
presents further challenges to remediation. Defence assured the committee that
it was continuing to work with industry to 'determine appropriate remediation
options'.[31]
Compensation
3.26
Shine Lawyers criticised Defence's response, asserting that Defence
'cannot have it both ways'—if the risks regarding PFOS and PFOA contamination
are serious enough to warrant advising against the consumption of groundwater,
it must also be serious enough to warrant action taken to compensate those people
whose groundwater has been affected. Shine Lawyers emphasised Defence's moral
responsibility to take action:
It surely cannot be moral or just to have Defence call
national attention as it did in July 2014 (referenced also by the reports
leading up to it) that the groundwater of Oakey was contaminated, to identify a
spreading "plume", to advise people not to drink the water, to
acknowledge publically the likelihood of affected property values and to say
the health effects were uncertain – only to now say that all is well and "sorry,
we were worrying about nothing, but hey don't drink the water anyway just in
case".[32]
3.27
Defence advised that financial assistance is available to 'individuals
and businesses whose livelihoods have been affected by the closure of Hunter
River and Port Stephens fisheries in response to contamination at RAAF Base
Williamtown' but noted that 'the question of compensation is separate to any
financial assistance to affected parties' and that:
In the event that individuals or businesses wish to make a
claim for compensation against the Commonwealth, such claims will be handled by
Defence in accordance Defence's obligations under the Attorney-General's Legal
Services Directions.[33]
3.28
Defence informed the committee that it has received inquiries regarding
compensation from people in Williamtown and Oakey but, as yet, no formal claims
for compensation have been made. When asked about its intentions to purchase
properties and assets that have lost value as a result of contamination,
Defence reiterated that, whilst it is engaged in talks with approximately 30
people regarding potential claims for losses suffered, no formal claims have
been lodged.[34]
3.29
In its Part (a) report, the committee recommended that 'the Commonwealth
Government, with the advice of the NSW Department of Primary Industries,
develop an initial compensation package for the commercial fishermen affected
by the closures of Fullerton Cove and Tilligerry Creek'. The Interim Government
Response to the recommendation avoided the issue of compensation, only stating
that 'individual claims for compensation received by the Australian Government
are handled on a case by case basis', focusing instead on the provision of short-term
financial assistance packages.[35]
3.30
The Government noted that the current financial assistance package for
fishers and businesses affected by the decision of the NSW EPA to institute
fisheries closures will continue to be available until 30 June 2016, when the
NSW Government is due to make its decision regarding the closure of the
fisheries. On 1 July 2016, a further Business Hardship Payment of up to $20,000
will be made available; and, if the NSW Government does not reopen the
fisheries, businesses will be able to apply for a Business Transition Payment
of up to $25,000 to 'assist businesses to pursue alternative sources of income
if they wish to do so'. The Government also advised the committee that it will
continue to provide an Income Recovery Subsidy to 'individuals who have
experienced a loss of income' as a result of the closure of the fisheries, for
a period of eight weeks after 30 June 2016.[36]
New South Wales
3.31
As discussed in Part (a), the New South Wales Government and Environment
Protection Authority (NSW EPA) has demonstrated a precautionary and proactive response
to PFOS/PFOA contamination. In September 2015, the NSW Government closed
commercial and recreational fisheries and oyster harvesting in Fullerton Cove
and Upper Tilligerry Creek for one month,[37]
which in October 2015 was extended to a further eight-month ban on fishing
while human health risk assessment is undertaken. The NSW Government explained
that:
The proposed ban on commercial and recreational fishing in
the designated area is recommended to remain in place until 30 June 2016.
Meanwhile, the Expert Panel has restated the need for local residents to heed
other precautionary advice until the human health risk assessment is complete.
As such, residents who live inside the investigation area
should not:
- drink or prepare food from private water bores, or water
from dams, ponds, creeks or drains (town water is safe)
- eat eggs from backyard chickens or milk from cows and goats
that have been drinking bore water or surface water in the area; and
- eat fish, prawns or wild oysters caught in the nearby area.[38]
3.32
In November 2015, the NSW Government updated its advice that, as a
precaution, residents and young children should not swim in pools filled with
bore water or local creeks, dams, drain or ponds in the investigation area.[39]
In addition to Defence's assistance package for commercial fishers affected by
the closures announced by the Assistant Defence Minister in November 2015[40],
the NSW Government announced an assistance package for Williamtown residents
affected by contamination from the RAFF base in December 2015. This package
includes a program to connect affected developed properties within the
investigation area to town water, an investment in new contamination testing
equipment and the deployment of additional community liaison staff to help
address concerns of the local community.[41]
Queensland
3.33
As discussed in chapter 2, the Queensland Government took a different
and less proactive approach to that of the NSW Government. Dr Jeannette Young,
the Queensland Department of Health's Chief Health Officer and Deputy
Director-General, explained that, compared to NSW, Queensland 'had a little
more time to think things through' and determined that Defence's response to
PFOS/PFOA contamination in Oakey was appropriate:
New South Wales, who I did talk with after they made their
comments, decided that, because they were not quite sure what was happening,
they would take a very precautionary approach, which is very understandable,
and suggest that any exposure be limited. Whereas in Queensland we had had a
little more time to think things through. They were told I think a bit later
than we were and we were going through and felt that Defence had very
appropriately responded to provide alternative drinking water supplies.[42]
3.34
The Queensland Government advised the committee that it has established
an interdepartmental committee to review and monitor Defence's response to PFOS/PFOA
contamination in Oakey. The Queensland Government stressed the importance of a
nationally consistent approach to PFOS/PFOA contamination which will 'support
effective communication about impacts of contamination that is based on
rigorous scientific assessment' as well as supporting 'clarity about roles and
responsibilities, where there are cross-jurisdictional implications'.[43]
3.35
The Queensland Government advised the committee that it has developed a
Draft Policy on Management of Firefighting Foams.[44]
However, the draft was criticised by firefighting organisations, which asserted
that the Draft Policy takes an overly simplistic approach and does not properly
consider the differences between PFOS/PFOA foams and other firefighting foams,
nor does it consider other factors such as firefighting performance:
The C6 foam chemistry is the chemistry that is being used to
comply with the US EPA stewardship program. So we would argue that the C6
chemistry has an acceptable environmental profile. Obviously, there still needs
to be management practices put in place and containment of effluent from fires
and that sort of thing, recognising that all foams have environmental impacts.
But C6 chemistry is not the same as PFOS or PFOA chemistry and it should be
treated separately. Unfortunately, the Queensland draft policy has taken a very
simplistic approach of saying, 'All this stuff's bad. It's all the same as
PFOS, therefore, you shouldn't use it.' We are saying that while that is a nice
simplistic approach it does not take into consideration a lot of the other
factors that need to be considered, as Matthew mentioned before, such as
firefighting performance and so on. The fluorinated chemicals—the C6
chemicals—have significant firefighting performance advantages over some of the
other technology. As a result, you can use less foam and you have less fire
water effluent to manage after an incident. We would argue that in certain
applications—we are really talking about major hazard facilities like
petrochemical facilities where you potentially have very large severe fires—the
use of a C6 fluorinated foam is probably a better choice, from a holistic
environmental consideration, putting the fire out quickly and minimising the
impact to the community on. That is on the proviso that your fire water
effluent is contained after or during an event. We would argue that management
practice should apply to all foams whether they are fluorinated or fluorine
free. The key issue here is to contain the fire water effluent and then treat
it appropriately after the incident.[45]
3.36
Willson Consulting, technical specialists in firefighting foams, also asserted
that the Queensland Government's draft is flawed, providing a detailed
assessment of its shortcomings. Willson Consulting noted that 'there is no such
thing as "environmentally friendly foams"' and that a range of
factors, including firefighting safety and effectiveness, need to be considered
when regulating their use.[46]
Victoria
3.37
The Victorian Government demonstrated a proactive approach to PFOS/PFOA
contamination. In 2012, the CFA Training College at Fiskville was the subject
of an independent report into the historical use of chemicals for live
firefighting from 1971 to 1999, known as the Joy Report. In December 2014, the
Victorian Parliament's Environment, Natural Resources and Regional Development
Committee (ENRRDC) commenced an inquiry into the CFA Training College at
Fiskville, which is scheduled to report in May 2016.[47]
An interim report was published in June 2015, which made three key recommendations:
RECOMMENDATION 1:
- The Victorian Government oversee the thorough testing of
soil and water, including tank water, on adjoining or relevant properties and
the results assessed in light of the decisions made as Fiskville. It is
important to ensure people living or working on those properties are not
subject to ongoing unacceptable risks of exposure;
- In addition, all information regarding exposure to PFOS,
testing results and other decisions from authorities related to contamination
should be made available to those property owners; and
- Due to market sensitivity regarding contamination of food
the Government considers the situation whereby local producers may not be able
to sell their livestock or other produce.
RECOMMENDATION 2: That the Victorian Government assess
the feasibility of providing voluntary testing for PFOS free of charge to
firefighters – career and volunteer – current and former staff at Fiskville,
other trainees, and people who live or have lived on neighbouring properties.
The Government, through the department of Health and Human Services, is to
report to the Committee on the feasibility of this process by September 2015.
RECOMMENDATION 3: That the Victorian Government
ensures that any person who seeks records and documents relating to their
involvement with Fiskville is able to do so from government agencies and
departments without hindrance.[48]
3.38
The Victorian Government's response to the ENRRDC was tabled in December
2015. The response agreed with the ENRRDC recommendations and emphasised a
proactive approach to the situation, including:
-
implementing a number of measures to remediate and manage the
surface water and sediments in lake Fiskville and the dams linked to the lake,
and stop further discharges of water from the Fiskville water management
system;
-
extensive testing of the family, livestock, water and soil on the
neighbouring properties most at risk of PFOS exposure, with face-to-face
briefings providing and explaining the results of the testing;
-
Victorian Department of Health and Human Services officials
visiting owners of the neighbouring property most at risk of PFOS exposure on a
number of occasions to discuss their concerns about PFOS and health;
-
providing face-to-face briefings with all neighbouring property
owners and occupiers at which officials:
-
explained the soil and water testing already undertaken and
offered to test the soil and water on their properties for PFOS;
-
explained the human health testing already undertaken, the
testing regime already available and offered to arrange testing; and
-
if the test results disclose any elevated level PFOS levels, will
offer to conduct PFOS tests of stock on those properties.
-
expanding the CFA health check program to include testing for
PFCs to the pathology testing;
-
expanding the eligibility of the CFA health check program to
people who live or have lived on neighbouring properties or nearby local
properties (which can be access either through the 24-hour Health and welfare
Hotline or an Independent hotline for vulnerable witnesses);
-
representatives of the Chief Veterinary Officer participating in
face-to-face briefings with owners and occupiers of the neighbouring properties
to address concerns regarding animal health concerns and livestock saleability;
and
-
emphasising its commitment to transparency and free and
unhindered provision of information, records, and documents to people regarding
their involvement at Fiskville.[49]
Airservices Australia
3.39
Airservices Australia has been very proactive in its approach to
PFOS/PFOA contamination. In 2008, despite an absence of regulatory screening or
investigation levels in Australia for PFCs, Airservices Australia conducted a
program of preliminary site assessment work to consider the impacts of
historical firefighting foam use, focused on the detection of PFOS and PFOA in
the soil and groundwater. A program of detailed site assessments was then initiated
following a priority risk ranking based at ARFF sites at Brisbane, Sydney,
Rockhampton and Perth Airports, with the results of the investigations provided
to site owners and regulators. In 2009/2010 Airservices Australia wrote to
Commonwealth, state and territory government environmental regulators advising
them of its PFC concerns in relation to current and former ARFF facilities.[50]
Dr Rob Weaver, Executive General Manager, Safety, Environment and Assurance,
described Airservices Australia's approach:
There are two fundamental planks that have guided our
approach. The first is the health and safety of our staff and the community and
the second is sharing everything that we know with regulators and airports to
ensure that they are aware of our actions and that we are taking on board the
latest science on how to treat PFCs. When we made the decision to phase out firefighting
foams containing PFCs, we also started to investigate the impacts from its
historic use.[51]
3.40
Airservices Australia advised the committee that it is implementing a
research and development program with industry to better understand the behaviour
of PFCs in the environment, assist in establishing screening criteria, and
assist in the development and trialling of treatments to remove PFCs from
impacted materials. Airservices Australia noted that its recent trails of
products such as MyCelx, MacCARE and RemBind have been 'extremely positive':
Airservices has in recent years undertaken trials of the
RemBind™ product as
an immobilising agent for PFCs in impacted soils. Initial laboratory trials of
PFC impacted soil from ARFF sites were undertaken by an independent consultancy
firm in co-operation with Ziltek, the manufacturer of RemBind™. These trials were
highly successful, with immobilisation levels attained up to 99%. Airservices
has subsequently used this technology in its operations, with over 700 cubic
metres of PFC impacted soil from one site treated and sent to landfill for
disposal, and similar uses elsewhere intended in the near future. Further
investigations are underway in collaboration with the University of Queensland,
to assess the application of RemBind™
as an in-situ treatment for PFC impacted soils.[52]
3.41
Airservices Australia assured the committee that, based on all the
evidence it has to date, it has not found any significant migration of PFCs
away from its airport firefighting grounds and does not believe that its use of
firefighting foam has contaminated drinking water at any location.[53]
Regulatory frameworks and coordination between Commonwealth and state
governments
3.42
Environment advised the committee that, under the division of powers
between the Australian Government and the states and territories under the
Australian Constitution, the states and territories have primary responsibility
for environmental protection such as air quality, noise, dour or general
amenity. There are a number of intergovernmental agreements relating to
environmental policy and regulation, including the 1997 Heads of Agreement on
Commonwealth and State Roles and Responsibilities for the Environment.
Environment noted that 'these intergovernmental agreements outline the broad
approach to the different responsibilities of Commonwealth, State and Territory
Governments and agencies in relation to environmental management'.[54]
3.43
The committee received evidence from Commonwealth and state agencies
highlighting shortcomings of the existing regulatory framework to address legacy
contamination as well as identifying shortcomings in the coordination between
agencies at different levels of government. The interim report of Professor
Mark Taylor into the management of contamination at RAAF Base Williamtown highlighted
the lack of clarity regarding to whom the Commonwealth is accountable for
contamination caused by it on non-Commonwealth land. The report recommended
that:
The NSW Government, as a matter priority, should engage
with the Commonwealth Government to resolve the ability of states and
territories to use their enforcement powers to address environmental
contamination on Commonwealth land and the remediation of contamination caused
by the Department of Defence (or other Commonwealth polluters) on
non-Commonwealth owned land. In particular, the NSW Government should work with
the Commonwealth Government to reassess the efficacy of any arrangements put in
place with respect to regulating the Department of Defence pursuant to
Attachment 3 of the 1997 Heads of Agreement on Commonwealth and State roles
and responsibilities for the Environment.
It needs to be clear and transparent to whom the Department
of Defence is accountable for contamination caused by it on non-Commonwealth
land. This would have flow-on benefits for NSW. The Review notes that there are
multiple military and airport sites across NSW (and Australia) that are likely
to be similarly affected.[55]
3.44
And that:
The NSW EPA, as a matter of priority, should seek legal
advice at the highest level to resolve the seeming ambiguity in regard to its
powers to (a) regulate and manage contaminated Commonwealth land; and (b) deal
with contamination caused by the Department of Defence on non-Commonwealth
land.
This issue is particularly important where it is clear
contamination has or is likely to have adverse impacts on surrounding land
under the jurisdiction of the NSW Government.[56]
3.45
The EPBC Act is described as 'the Australian Government's central piece
of environmental legislation' which 'provides a legal framework to protect and
manage nationally and internationally important flora, fauna, ecological
communities and heritage places—defined in the EPBC Act as matters of national
environmental significance'.[57]
However, despite being the 'central piece of environmental legislation', it
appears to have significant limitations in the context of firefighting foam
contamination. Environment emphasised its limited power under the EPBC Act,
noting that, even if it is made aware of contamination or significant
environmental concerns, as in the case of Williamtown, its ability to act is
restricted:
Whenever we get any intelligence or any piece of information
that goes to the environment, the first step we take is make a consideration of
whether we have got any lawful basis or legal ability to be able to act. It is
very important for us as a regulator to be able to say we cannot step up beyond
our powers. So, if we get some information going to our compliance area, the
first thing we do...is make some inquiries and see if we have any legal power to
be able to address that. When it goes to these legacy cases, that power is
obviously limited.
When a matter has been referred to us, there is a process
about environmental impact studies and a range of other things, and our
assessment officers...will ask some questions to be able to see whether or not
there are matters that we should be taking into consideration through that
referral process, such as contamination. The limitation for us under the act is
that, if it is not related to the action itself, we may not have jurisdiction
to act. But our posture is to make our best endeavours to find whether or not
there is something that we can address within the legal powers that we have as
a department.[58]
3.46
Environment told the committee that, under Part 3 of the EPBC Act, the
Commonwealth Environment Minister can only statutorily intervene in
environmental matters and make approval decisions in relation to actions that
are likely to significantly impact the following nationally protected matters:
-
World Heritage properties;
-
National Heritage places;
-
wetlands of international importance (often called 'Ramsar' wetlands
after the international treaty under which such wetlands are listed);
-
nationally threatened species and ecological communities;
-
migratory species;
-
Commonwealth marine areas;
-
the Great Barrier Reef Marine Park;
-
Nuclear actions (including uranium mining);
-
A water recourse, in relation to coal seam gas development and
large coal mining development; and
-
the whole of the environment, but only in those instances where
the actions affect, or taken on, Commonwealth land, or are carried out by a
Commonwealth agency.[59]
3.47
Furthermore, Environment advised that approvals under the EPBC Act do
not focus on impacts or outcomes but only on the action undertaken:
The way the act is worded, it talks about approving an action
not an impact. You approve an action to be undertaken, so the action is the
airport and the normal operation of the airport. The impacts are not what is
approved; you approve the action.[60]
...
It is not designed to operate on the basis of whether there
is a contamination of a certain thing or because something that is a particular
protected matter is at threat, and then the EPBC Act steps in. That is not how
it operates. It only operates on the basis of actions and impacts. Because it
is designed in that way, it is why, when it was introduced, the exemption
provisions my colleagues talked about were in place. It is focused on actions
and impacts rather than outcomes, if you like.[61]
3.48
Environment advised that it is the responsibility of the person
proposing to take an action to 'self-assess' and consider whether their
proposal is likely to have a signficiant impact on a nationally protected
matter and requires referral for approval under the Part 7 of the EPBC Act.[62]
Therefore, under the EPBC Act, Defence is only required to seek an assessment
or consideration from Environment if and when Defence decides that one is
necessary:
If Defence want to do something, they have to satisfy
themselves. They have to consider whether they are going to have a significant
impact on the environment and, if they are, they need to seek an assessment, a
consideration by the department. If they decide they are not having a
significant impact on the environment, then they do not need to come to us.[63]
3.49
The EPBC Act also contains a range of transitional provisions, including
sections 43A and 43B which exempt certain actions from the assessment approval
provisions. These sections apply to lawful continuations of land use that started
before or actions that were legally authorised before the commencement of the
act on 16 July 2000. Environment noted that 'there may be circumstances where
activities resulting in PFOS and PFOA contamination would not be subject to the
EPBC Act because the actions are covered by one of the above transitional
provisions'. Environment advised that any enlargement, expansion, or
intensification of an existing use is not a continuation of that use and is not
covered by the exemptions.[64]
However, this too relies on self-assessment, with landowners determining
whether or not they are increasing or intensifying their actions from any
grandfathered actions:
...the primary responsibility lies with the landowner to
satisfy themselves they are not having a significant impact on the environment.
If the landowners satisfy themselves that they are not having a significant
impact—nor are they intensifying, increasing or substantively changing the
nature of their operations where there is provision under the act for those things
to have been grandfathered...then they would not refer.[65]
3.50
Environment confirmed that it recently received a referral from Defence
regarding an intensification of operations at RAAF Base Williamtown due to the
Joint Strike Fighters, but advised that even when an assessment is referred,
'the referrer determines what gets referred to the department'[66]
and any actions that are assessed must be linked to the referred action.
Therefore, as the primary issues which were raised in that consideration were
related to noise impacts and potential contamination of fuel dumping,
Environment was unable to consider PFOS/PFOA contamination issues:
The thing we need to be careful about here is that the fact
that someone is undertaking something in an action that may be significant is
not a free pass for us to go in and resolve any legacy issues that exist on
that site. So, under our statutory authority, we would still be limited,
because the actions that need to be assessed must be linked to the referred
action. There would need to be a direct link—and there may well be as you were
pointing out—between the action that is referred and the larger action. That is
the only caution I would put on that. So you cannot say that, if someone
referred something on a particular site, we could go in and look at the entire
site, as Mr Gaddes has pointed out. An example of that would be that you cannot
use a mine extension proposal to require a whole bunch of conditions in
relation to the existing mine that had already been operating for 20 years.[67]
3.51
Environment assured the committee that 'whilst the onus is on the person
taking an action to 'self-assess'...the department examines all allegations of
non-compliance with the EPBC Act on a case-by-case basis to ensure that
unapproved actions that have had, or are likely to result in, a significant
impact on nationally protected matters receive an appropriate compliance
response'.[68]
However, in November 2013, the NSW EPA raised the issue of contamination with
Environment but did not receive any response. Environment advised the committee
that it assessed the circumstances and determined that the EPBC Act 'did not
apply':
As we do with most issues or allegations or incidents like
that, we go through and we look at the circumstances around that incident and
whether or not the EPBC Act would apply given the circumstances. At that time,
that was referred to the compliance officers within the department. The
compliance officers spoke to the EPA, sought further information, had a look at
the activities that had occurred at that site and deemed that there had not
been a significant intensification of the activities and that they were
activities which related to legacy activities at the site. Therefore, the act
did not apply.[69]
3.52
Yet Environment did not see fit to advise the NSW EPA of this
determination. When asked by the committee, Environment confirmed that it did
not write back advising the NSW EPA of its findings as 'there was not a
substantive issue for [Environment] to address' and it did not have the resources
to provide a response.[70]
Committee view
Interpreting the science of
PFOS/PFOA
3.53
The committee's first report made passing reference to the human and
environmental health impacts of PFOS/PFOA contamination.[71]
In this report the committee has refrained from attempting to engage in a
complex and technical debate, which is likely to continue unresolved for some
time. However, the committee is able to draw one conclusion from the scientific
evidence. The peer-reviewed studies drawn to the committee's attention demonstrate
that PFOS and PFOA are persistent, toxic and transboundary organic pollutants
that bio-accumulate through the food chain. That is why there is a consensus
that PFOS/PFOA should not be used. These contaminants are very difficult to
manage in the environment which is also the main reason authorities have
struggled to develop effective remediation strategies for the contaminated
ground water and mobile plumes at Williamtown and Oakey.
3.54
There is definitely no place for these chemicals at any Commonwealth,
state or territory facility where firefighting foams are used. As such, the
committee was surprised to learn that there is no Australian legislation that
prescribes actions or standards specifically in respect of PFCs.[72]
The committee is of the view that, despite evidence that these foams are no
longer in use, all PFOS and PFOA firefighting foams should be immediately
removed from circulation and storage to avoid increasing existing legacy
management issues and locations. To this end, the committee is of the view that
legislation should be introduced in the Parliament banning PFOS/PFOA once and
for all.
Recommendation 4
3.55
The committee recommends that the Government explicitly legislate for
the immediate removal and safe disposal of PFOS and PFOA firefighting foams
from circulation and storage at all Commonwealth, state and territory facilities
in Australia.
3.56
The committee continued to receive evidence highlighting probable
adverse health outcomes of exposure to PFOS/PFOA, including bibliographies,
references to international case studies and the outcome of overseas
litigation. The committee was at times perplexed by the volume of scientific
literature on PFOS/PFOA and the conflicting interpretations arrived at by
scientists and health professionals with considerable experience and expertise
both in Australia and overseas. The committee accepts evidence provided by the
National Industrial Chemicals Notification and Assessment Scheme, or NICNAS,
and Professor Mueller from Queensland University, that risk is a function of
the intrinsic properties of a chemical and the level of exposure and
accumulation in the blood stream.[73]
The committee agrees that debate around the human toxicological impact of
PFOS/PFOA is unlikely to be resolved any time soon and for this reason is
unable to formulate an overall conclusion around the science of these
contaminants.
3.57
Throughout the inquiry Defence remained steadfast in arguing there is no
consistent scientific data linking PFOS/PFOA with adverse human health effects,
and reiterating that the health community is not united on the effects of these
chemicals.[74]
This became Defence's mantra at the committee's four public hearings, with
senior officials maintaining that its position aligns with public statements by
New South Wales, Queensland and Western Australian state health authorities and
most recently by EnHealth. Yet this official position stands in contrast to
evidence from expert witnesses critical of the Australian authorities for
giving the appearance of downplaying the seriousness of the contamination so as
to forestall accepting legal liability. This evidence made the committee aware
of decades of scientific research and review by the Stockholm Convention
technical committee, which has demonstrated a probable link between PFOS/PFOA
and testicular and kidney cancer and a wide range of other serious human health
impacts. The accumulation of peer-reviewed scientific studies from the 1970s
shows a range of likely adverse human health effects from high level exposure
to these contaminants.
3.58
Nonetheless, the lack of definitive scientific consensus regarding the
effect of PFOS/PFOA on human health does not alter the fact that people living
within and around the contamination zones in Williamtown and Oakey, some of
whom have extremely high levels of PFOS/PFOA in their blood for reasons that
are not clear, have had their lives and livelihoods turned upside down and
sometimes ruined through no fault of their own. The committee understands that
for many residents in Williamtown and Oakey it is exposure to risk and linking
that exposure to existing health issues including a range of cancers that is
the primary cause of concern.
3.59
As such, and as recommended in Chapter 2, the committee supports the
provision of voluntary blood testing, which continues to be a major source of
contention between Commonwealth and state authorities and residents affected by
contamination. The committee believes that the official view taken by state
health authorities and EnHealth, which underpinned Defence's official line on
blood testing in Williamtown and Oakey, is out of kilter with the views of
residents and international experience where blood testing appears to be the
norm for residents affected by PFOS groundwater contamination.[75]
The committee is of the view that sufficient evidence exists for Commonwealth
and state authorities to at least reconsider their position, not only for the
residents of Williamtown and Oakey but also in relation to other likely
contamination events at other sites around Australia.
Recommendation 5
3.60
The committee recommends that voluntary blood testing be made available
to current and former workers at sites where firefighting foams containing
PFOS/PFOA have been used, and current and former residents living in proximity
to these sites who may be affected by contamination.
The response by the authorities
3.61
Putting to one side the inconclusive scientific evidence, the committee
is left in no doubt the residents of Williamtown and Oakey were let down by the
tardy and inconsistent response of Commonwealth and state authorities charged
with managing legacy contamination of the environment. The committee accepts
that contamination caused by firefighting foams is a legacy issue affecting
hundreds of sites across Australia. The policy challenges of environmental
contamination are complex and will require the boundaries of authority and
responsibility between the Commonwealth, states and territories to be
challenged and reconfigured in ways probably not seen before. A national policy
response to legacy contamination and development of agreed national
environmental regulations and guidelines on the use of firefighting foams are
urgently required.
3.62
The committee notes the variation in response between the state
governments, ranging from the proactive responses in New South Wales and
Victoria, to the more reserved approach of Queensland. The committee is
satisfied with the proactive approach taken by Air Services Australia to
firefighting foam contamination at airports around Australia. It welcomes
evidence that it is unlikely the use of firefighting foams at Australian
airports has contaminated drinking water at any location. The committee
congratulates Air Services Australia for implementing a range of early
investigative and intervention practices, as well as its research and
development program with industry to better understand the behaviour of PFCs in
the environment, assist in establishing screening criteria, and assist in the
development and trialling of treatments to remove PFCs from impacted materials.
3.63
However, the committee does not have the same level of confidence in
Defence's handling of its estate and the environmental and human threats posed
by firefighting foam contamination both on and off a number of bases. Defence's
handling of legacy contamination, particularly its response to the situation at
RAAF Base Williamtown, leaves a lot to be desired and has definitely compounded
the anger, frustration and stress experienced by hundreds of affected residents
and businesses. The loss of confidence in government authorities and the sense
of betrayal experienced in Williamtown and Oakey is regrettable, all the more
so because these Defence facilities have historically provided an economic and
social lifeline for many residents.
3.64
The committee welcomes measures recently initiated by Defence to
identify a priority list of facilities around Australia to be tested for
PFOS/PFOA contamination. The committee welcomes the sense of urgency around the
timely completion of the human health and environmental risk assessments for
Williamtown and Oakey conveyed by senior Defence officials. In undertaking a
response to contamination of its estate and engaging with other affected
communities, the committee encourages Defence to learn from the mistakes of Williamtown
and Oakey and adopt a proactive stance in tackling this problem.
3.65
The committee encourages Defence to notify residents as early as
possible, work cooperatively with relevant state agencies and engage residents
and businesses in practical discussions about remediation, compensation,
relocation and where appropriate acquisition of property which is no longer fit
for purpose. Communities need to be reassured that Defence is 'open for
business' when it comes to accepting liability and offering compensation on
just terms.
3.66
The committee acknowledges that the domestic treaty making process for
the ratification of the addition of PFOS as an Annex B restricted substance
under the Stockholm Convention may be 'substantial'. However it is disappointed
that, after more than half a decade, Environment advises that it is still
working on releasing a draft consultation Regulatory Impact Statement for
public consultation. The committee is unconvinced that this delay is justified
and urges Environment to make the completion of the process and ratification of
the Convention a priority.
Recommendation 6
3.67
The committee recommends that the Department of the Environment complete
the domestic treaty making process for the ratification of the addition of PFOS
as an Annex B restricted substance under the Stockholm Convention on Persistent
Organic Pollutants before the end of 2016.
A national regulatory approach
3.68
Evidence received from Commonwealth and state agencies has put a
spotlight on the shortcomings of the existing regulatory framework to address
legacy contamination and the patchy coordination between agencies at different
levels of government. The committee is concerned that Environment has not
assumed the role of lead agency tackling this issue head-on, leaving state
agencies to fill the regulatory void with unintended consequences. The
committee fails to see how Environment can be so hamstrung in dealing with an
emerging national environmental contamination issue by the key piece of
national environmental protection legislation over which it has
responsibility—the EPBC Act. Evidence from Environment that an issue as
significant as legacy contamination by firefighting foams falls outside the
scope of the EPBC Act, including significant base upgrades for the proposed
Joint Strike Fighter acquisition, came as a real surprise to the committee and
is an area of concern.
3.69
The complexity of the regulatory environment, the interaction of laws
and regulations at state and federal levels and the operation of the EPBC Act
have together been detrimental to communities seeking answers and requiring
government assistance. Nowhere is the level of regulatory confusion more clear
than in the conflicting views of Defence and the NSW EPA about when to notify
the Williamtown community of the contamination, which both agencies had known
about for some years, and the subsequent unilateral action taken by the EPA out
of frustration with Defence's inaction. Furthermore, the inconsistency in
agency responses is clearly demonstrated by the contrast between the New South
Wales EPA's intervention in Williamtown (a trigger for this inquiry) and the
absence of any visible early response by the Queensland Government to the
equally serious situation which was already unfolding in Oakey.
3.70
There is an urgent need for Government to undertake a review of the EPBC
Act and, if necessary, provide a legislative basis for Environment to assume a
national leadership role and intervene early should other legacy contamination
events emerge on the scale of Williamtown or Oakey. The committee takes little
comfort from the existence of an inter-departmental committee headed by
Environment which Defence claimed was looking at the broader problem of
PFOS/PFOA contamination. Residents of Williamtown and Oakey expect more than
the creation of an interdepartmental committee.
Recommendation 7
3.71
The committee recommends that the Commonwealth Government review the Environment
Protection and Biodiversity Conservation Act 1999 and, if necessary, seek
to have it amended to enable the Department of the Environment to assume a
national leadership role and intervene early should other legacy contamination
events emerge on the scale of Williamtown or Oakey, especially when contamination spreads from
land controlled by Defence to non-Commonwealth land.
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