The 'Forever' Chemicals: PFAS and the Maritime Industry

Author:Claire Strodder
Position:Claire Strodder, LLB (Hons) (Hull University), is a Maritime Lawyer at Pacific Maritime Lawyers
Pages:60-63
 
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(2020) 34 A&NZ Mar LJ 60
THE ‘FOREVER’ CHEMICALS: PFAS AND THE MARITIME INDUSTRY
Claire Strodder*
On 26 February 2020, lawyers for the Katherine residents affected by a PFAS (per and poly-fluoroalkyl
substances) contamination reached an ‘in-principle’1 settlement a greement with the Department of Defence for a
total settlement figure of $92.5 million. The Katherine PFAS Contamination Class Action (Class Action) arose
as a result of the leaking of PFAS used in firefighting foams at a Department of Defence base, which lead to the
contamination of the land and waterways. While the Cla ss Action is not dir ectly associated with the maritime
industry it is a clear signal that the problem of the ‘forever chemicals,2 PFAS, is not going anywhere fast. This
article considers PFAS, the concerns with PFAS, PFAS and the maritime industry and finally some practical tips
for organisations going forward.
1 What are PFAS?
The word ‘PFAS’ is the group name for products including PFOS ( perfluoroctanesulfonic acid), PFOA
(perfluorooctanoic acid) and PFHxS (perfluorohexanesulfonate). PFAS are part of a group of manufactured
chemicals that have been used since the 1940s in a range of household consumer products including non-stick
cookware, food p ackaging, fabric, and commercial household products like polishes, waxes, paints, or cleaning
products. PFAS are also used in some industrial settings, including in certain types of firefighting foams, as PFAS
are a proven and essential firefighting tool.3
PFAS are widely used in everyday life in common household products, albeit in small quantities. PFAS have
been used over many decades and as a result PFAS are commonly found in the environment. Generally speaking,
PFAS are found only at low levels, b ut in some industrial applications, and particularly in the maritime industry,
PFAS may be a significant and ongoing concern.
In the maritime industry, PFAS is commonly used in the fightin g of fires or in fire training on board a vessel or
maritime facility like a port.
2 What is the Law Concerning PFAS
Environmental regulation applies to PFAS. Generally speaking, in Australia, Environmental Law is a matter for
the states and territories. At a federal level, there is the Environment Pr otection and Biodiversity Conservation
Act 1999 (Cth) (EPBC Act) and the associated regulations. The EPBC Act is the federal government’s key piece
of environmental legislation, which enables it to join with the states and territories in providing a unified scheme
for environmental protection.
Each state and territory has its own legislation and regulations regar ding PFAS. For example, in Queensland, the
environmental obligations are set out in the Environmental Protection Act 1994 (Qld) and the Environmental
Protection Regulation 2019 (Qld). All other states and territories have similar obligations in their environmental
legislation.
The environmental legislation across the states and territories of Australia includes obligations and duties to
prevent environmental harm, nuisance and contamination. Und erstandably, non-compliance with the legislative
and regulatory duties and obligations can lead to a range of regulatory responses ranging from significant fines to
Environmental Protection Orders to improvement notices to prosecution. It is important to note that there are
potentially significant finan cial penalties if the legislation is breached. In Queensland, if a prescribed water
contaminant is deposited, the environmental regulator may impo se a financial penalty of up 8325 penalty units,
which is a fine in excess of $1 million.4
* Claire Strodder, LLB (Hons) (Hull University), is a Maritime Lawyer at Pacific Maritime Lawyers.
1 Shine Lawyers, Katherine PFAS Contamination Class Action (2020) Shine Lawyers
atherine-contamination>.
2 Sarah Gibbens, Toxic ‘forever chemicals’ more common in tap water than thought, report says (2020) National Geographic
n-safe-drinking-water-study/> at 24 January 2020.
3 Department of Environment and Science, Operational Policy Environmental Management of Firefighting Foam (2016)
g-foam-policy.pdf> at 7 July 2016.
4 Environmental Protection Act 1994 (Qld) s440ZG.

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