Ensuring readiness for the PFAS ban

The Industrial Chemicals Environmental Management Standard (IChEMS) ban on the use of perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), and perfluorohexanesulfonic acid (PFHxS) will take effect on 1 July 2025. Commonly referred to as "forever chemicals," these substances are used in roofing, paints, sealants, and textiles, and they pose significant environmental and liability risks. With only days left before the deadline, companies must finalise their compliance efforts to avoid penalties and manage ongoing challenges. This alert outlines urgent actions and key considerations.

PFAS Regulations

Australia has been addressing PFAS concerns since 2002, with the Australian Government PFAS Taskforce coordinating national efforts. The upcoming ban is a significant milestone, as it includes PFOS, PFOA, and PFHxS on Schedule 7, which prohibits their use except in limited circumstances—for instance, in existing firefighting foam systems with PFAS levels at or below 0.1 mg/kg.

The PFAS National Environmental Management Plan (NEMP) provides a national framework for managing, disposing of, and remediating PFAS, thereby guiding Queensland’s strict enforcement. Non-compliance with this framework can breach the general environmental duty under the Environmental Protection Act 1994 (Qld), risking fines or prosecution under the “polluter pays” principle.

Key measures include:

• Phasing out PFAS firefighting foams: Queensland has phased out PFAS-containing aqueous film-forming foams (AFFFs).
• Regulation of biosolids and compost: Queensland pioneered PFAS limits on biosolids and compost, ensuring safer recycling and land application (PFAS in Regulated Waste).
• Enforcement: Non-compliance can lead to legal action from the Department of Environment, Tourism, Science and Innovation.

Other states and territories are aligning with IChEMS, guided by NEMP:

• NSW adopted IChEMS through the Environmental Legislation Amendment (Hazardous Chemicals) Act 2024 (NSW). Non-compliance is considered an offence under s 296C, enforced by the NSW Environment Protection Authority.
• South Australia banned fluorinated firefighting foams in 2018, and the adoption of IChEMS is currently underway.

Legislation to enforce IChEMS is pending in other states.

Suggested actions

Non-compliance with the IChEMS ban could lead to significant liabilities. Breaches of the Environmental Protection Act 1994 (Qld), whether by using or improperly disposing of PFAS, may result in statutory penalties, including fines. Contractual liabilities may arise if companies fail to use or supply PFAS-free materials as required, leading to breach of contract claims, project delays, or financial penalties. Furthermore, negligence claims could arise from a failure to conduct due diligence and take appropriate actions. Robust compliance is essential to mitigate these risks.

With the ban imminent, companies should take the following steps:

1. Discontinue the use of PFAS-containing materials, notify authorities about stockpiles, and ensure safe storage and disposal.
2. Assess project sites for PFAS contamination in soil, groundwater, or existing materials.
3. Replace PFAS-containing foams in legacy firefighting systems.
4. Maintain PFAS-free certifications to avoid “polluter pays” liabilities.
5. Review contracts to ensure they include clear provisions related to PFAS compliance, liability protections, and risk management strategies.
6. Review insurance coverage to identify potential gaps.

Staying informed and adopting proactive strategies will be critical for effectively managing these risks.

If you have any questions relating to national framework, please don’t hesitate to contact the author.