Landmark PFAS contamination class action

Perfluorinated Alkylated Substances also referred to as ("PFAS") are synthetic (man-made) chemical compounds used in industry since the 1950's. In Australia, PFAS have been used for a long time in consumer products and industrial applications and there are now PFAS contaminated sites resulting from these various uses, including from the use of some types of firefighting foam concentrate.

CEO, Firewize
Fire Fighting Foam

In the media this week (October 2019) was an article that jumped out at me for its reference to the fire protection industry (in particular the use of firefighting foam). The article from the ABC covers one of Australia's largest class action against the Commonwealth of Australia (Department of Defence)1 with up to 40,000 Australians who live and work in affected areas2 .

Perfluorinated Alkylated Substances also referred to as ("PFAS") are synthetic (man-made) chemical compounds that include multiple fluorine atoms that have been used in industry since the 1950's. Commonly used as a surfactant they are very effective in lowering the surface tension of water.  Because of this feature, they may be used as a water repellant, for stain protection and a constituent of firefighting foam.

According to the Australian Government Department of the Environment and Energy, the import and sale of firefighting foam concentrate with PFOS as an active ingredient in Australia is thought to have ended in 2003.

There are many types of PFAS, with the best known examples in the fire protection industry being:

According to Chemguard a manufacturer of foam concentrates, a fire fighting foam is simply a stable mass of small air-filled bubbles, which have a lower density than oil, petrochemicals or water. Foam is made up of three ingredients; water, foam concentrate and air. When mixed in the correct proportions, these three ingredients form a homogeneous foam blanket3 .

Health & Environmental Concerns

The Stockholm Convention on Persistent Organic Pollutants ("POPs")  came into force on 17 May 2004, with Australia ratifying the Convention on 20 May 2004 and becoming a Party on 18 August 2004.

A POP is a chemical that, persists in the environment, accumulates in the food chain, has potential for long range transport and has evidence for adverse effects or for potential for damage to human health and the environment, even at low concentrations. Due to their long range transport, persistence and toxicity, POPs released in Australia and overseas have the potential to affect the health and environment of Australians.

The Convention is a global treaty that aims to protect human health and the environment from the effects of persistent organic pollutants. The Convention has a range of control measures to reduce and, where feasible, eliminate the release of POPs, including emissions of unintentionally produced POPs such as dioxins. The Convention also aims to ensure the sound management of stockpiles and wastes that contain POPs.4

The hazard assessment of PFOS, prepared by the OECD in 2002, concluded that the presence and the persistence of PFOS in the environment, as well as its toxicity and bioaccumulation potential, indicate a cause of concern for the environment and human health.5

As recently as October 2017, the Australian Government Department of the Environment and Energy on behalf of the Government prepared a Regulation Impact Statement ("RIS") to present options for the regulation (national phase out) of perfluorooctane sulfonate-related chemicals (PFOS) to protect the environment and human health. The RIS was developed to provide guidance in respect to Australia’s obligations arising from
the 2009 amendment listing PFOS under the Stockholm Convention on Persistent Organic
Pollutants ("POPs"), should Australia decide to ratify this amendment.6

The RIS provided FOUR options for the for the regulation and/or control of PFOS in Australia. The options presented seek to minimise future exposure of humans and the environment to PFOS, by aligning the management of PFOS in Australia with the globally-accepted standards established by the listing of PFOS under the Stockholm Convention. The four options are;

Option One No new policy intervention
Option Two No ratification of the Stockholm Convention listing of PFOS but implementation of certification requirements
Option Three Ratify the Stockholm Convention listing of PFOS and register of permitted uses
Option Four Ratify the Stockholm Convention listing of PFOS and the phase out of all non-essential use of PFOS

At the time of the RIS, an analysis of options suggests that the highest net value to Australia is likely to come from Option 4.

Subsequent to the RIS, on February 16, 2018 the Commonwealth, state and territory environment ministers have endorsed Australia’s first PFAS National Environmental Management Plan. The plan provides valuable guidance around storage, re-use and disposal of contaminated material, which will facilitate proactive decision-making for contaminated site management, including remediation.

Firefighting Foam Concentrates

An increasing number of sites are being identified in Australia from the historic use of firefighting foams containing Perfluorinated Alkylated Substances ("PFAS"), which are recognised as a threat to health and the environment.

Firefighting foams may be applied by hand, portable or fixed systems to prevent or extinguish different classes of fire fires involving:

Class A Carbonaceous combustible materials, such as wood, paper, fabric, plastics and rubber, where the fire can be deep-seated in the burning material.
Class B Flammable and combustible liquids such as liquid hydrocarbon fuels and polar solvents where the fire and vapours are on the surface of the liquid.

Foam for both Class A and Class B fires can be delivered by hand-held portable fire extinguishers or fixed pipe foam generating systems using hand-held foam nozzles, large-capacity monitor nozzles or subsurface injection systems.

Firefighting foams and associated wastes can be divided into two groups;

  • Non-persistent firefighting foam concentrates that do not contain highly persistent organic compounds and are fully biodegradable (including fluorine-free foams).
  • Persistent firefighting foam concentrates that contain highly persistent organic compounds including long-chain (≥C7) and short-chain (≤C6) fluorinated organic compounds or their precursors. In other words, foam or related wastes that contain any and all fluorinated organic compounds.

For the purposes of classifying the biodegradability of a firefighting foam all of the organic compounds in its composition must degrade under normal environmental conditions within 28 days from the time of its release to water by7 :

  • >95% to be classed as readily biodegradable
  • >99% to be classed as fully biodegradable.

Industry Response

In June 2014, the Fire Protection Association Australia ("FPA Australia") published Information Bulletin (IB06), Selection and use of firefighting foams - Version 1.1, (06/2014) to increase awareness of the issues surrounding the selection and use of firefighting foam concentrates based on three factors;

  • health and environmental impact;
  • firefighting performance; and
  • system components and equipment compatibility.

In the recommendations of the Information Bulletin, FPA Australia states seven recommendations for the selection and use of firefighting foam concentrates;

  1. The use of foams containing PFOS should be banned.
  2. Existing stocks of foams containing PFOS should be removed from service and sent for high temperature incineration at an approved facility.
  3. Foam manufacturers should reduce and eliminate the production of foams containing PFOA in accordance with the US EPA PFOA Stewardship Program.
  4. Regardless of whether the foam under consideration is a fluorinated or fluorine-free foam, evidence of suitability must be provided to demonstrate its ability to achieve the required firefighting performance for the fuel in question having been subjected to appropriate and recognised testing. Evidence of suitability must also be used to demonstrate that the foam is compatible with associated systems and equipment.
  5. Whilst important, the environmental performance of a foam should not be used as the sole selection criteria. In addition to recommendations 1 to 4 above the following additional key selection criteria must be considered in addition to environmental impacts:
    1. Firefighting performance
    2. Life safety
    3. Physical properties and suitability for use on known hazards
    4. Compatibility with system design and approvals
  6. Any proposal to change the type of foam used in a system requires careful consideration and must take fire safety and engineering factors into account. The type of foam used should not be changed without completing a detailed review of the design, performance and operation of the system as a whole. Such design reviews should include consultation with fire system designers, foam and foam hardware suppliers, and the relevant authority having jurisdiction.
  7. Choosing the most responsible firefighting foam, the best one to protect people, property and the environment, involves selecting one that provides a combination of firefighting performance, reliability and life safety, balanced with minimal toxicological and environmental impacts.

More Information

The subject of the selection and use of firefighting foam in the fire protection industry has been under review for over 20 years and since the first signs of the health and environmental risks of PFAS, PFOS and PFOA have been identified the manufacturers of firefighting foams have been developing alternatives that satisfy current community expectations.

There has been a lot of investment and work to replace contaminated stock and remediate land that may have been adversely affected.

Given the new class action being instigated by multiple law firms, one thing is certain, there will be a lot more focus on this subject for many years to come.

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