Results of EPA investigation into PFOS firefighting foams
04 April 2019
An Environmental Protection Authority investigation has found stores of firefighting foams containing a banned chemical, PFOS (perfluorooctane sulfonate), across New Zealand.
At all sites where the banned foam was identified, including those which are not yet fully compliant, the foam has been secured within equipment, and secured against use. The foam is not accessible to the public and there is no public risk. It is appropriately labelled to warn workers of the hazards.
PFOS foams were excluded from the Firefighting Chemicals Group Standard in 2006, meaning they could no longer be imported into New Zealand. In 2011, all PFOS products were completely banned and strict controls were set to manage their storage and disposal.
The aim of our investigation was to discover whether PFOS-containing foams had been imported, manufactured, used, stored, or disposed of in New Zealand in contravention of Hazardous Substances and New Organisms Act 1996 (HSNO) requirements, and the extent of these activities. The EPA sought to ensure any non-compliant foam was removed and disposed of safely; that any places or equipment in contact with the foam were decontaminated, and that clean-up materials were appropriately disposed of.
Chief Executive Dr Allan Freeth says: “Our investigation covered 166 sites across the country. We were very surprised to find the banned foams at six airports; in equipment owned by two companies that service airports; at three sites controlled by a major oil company; in two tug boats; and at a tyre company.
“Firefighting foam with lower levels of PFOS was also found at some other sites. These lower levels likely resulted from contamination arising from previous use of PFOS foams.
“In all cases, operators have taken the EPA’s direction and complied with storage and labelling laws. Any ongoing risks to the environment have been mitigated.
“In all instances, our aim was to secure the best outcome by working with parties, either on a voluntary basis or via a compliance order, to ensure they took the necessary steps to decontaminate or dispose of the foam in line with technical standards.
“I want to stress that we found no intentional non-compliance. We concluded it was highly likely that all the banned foam we identified had been imported before 2006, when it was legal. There is, however, no excuse when businesses that are part of the professional firefighting sector do not keep up to date with law changes in their industry.
“Three compliance orders were issued early in the investigation to reflect the seriousness of the public and environmental issues arising from use of these foams. A later compliance order was served on an operator in response to its reluctance to take action.
“We consider that we have met the objectives of our investigation. While no prosecutions were undertaken, enforcement and compliance action has been successful. We remain vigilant and will take very seriously any circumstances where we might find banned foam being used or stored illegally in the future.
“This investigation was a first for the EPA. Changes to HSNO Act, which came into force on 1 December 2017, gave us new enforcement powers which allowed us to take action on non-compliance. We initiated this independent investigation 19 days later.
“Because of the protracted nature around safe disposal of the banned foam, we cannot yet verify that full compliance with legal requirements has been achieved in all cases. However, substantial progress has been achieved, and EPA investigators will continue to work towards ensuring that all PFOS foams are safely removed and disposed of, eliminating the threat of any future contamination of the New Zealand environment.”
The New Zealand Defence Force (NZDF) discovered soil and water contamination from PFOS, and a related substance PFOA, at its Ohakea and Woodbourne airbases. The source was thought to be a specialist firefighting foam used for combating liquid fuel fires. The foam may have been used at the airbases during training exercises, and during emergencies.
On 7 December 2017 the Government announced an All-of-Government investigation, and mitigation measures, for potential water contamination at Woodbourne and Ohakea airbases. The focus was to be on water contamination and land remediation for public health and safety.
PFOS (perfluorooctane sulfonic acid)
From the 1960s to the 1990s, firefighting foams containing PFOS were widely used internationally, including for firefighting training. They were the most effective means of extinguishing highly volatile, liquid fuel fires. So they were often deployed at airports, oil facilities and military bases. They have a narrow and specific use, and would not be present in home fire extinguishers, for example.
PFOS is classified as a Persistent Organic Pollutant (POP) under the Stockholm Convention, an international agreement on managing POPs to protect the environment and human health. New Zealand became a signatory to the Convention in May 2001.
POPs are stable compounds that do not readily break down through chemical or biological processes. They persist for a long time, both in the environment and the human body, with potential health effects.
Under the Stockholm Convention, POPs were banned in 2004. PFOS was listed as a POP, with effect from 2010.
Regulation of PFOS in New Zealand
In 2006 PFOS firefighting foams were excluded from the EPA’s Firefighting Chemicals Group Standard, meaning they could no longer be imported into New Zealand, or manufactured here. A Group Standard is a process through which the EPA approves groups of similar substances for use in New Zealand under the Hazardous Substances and New Organisms Act 1996 (HSNO).
In 2011, a Stockholm Convention decision recognising PFOS as a POP was written into New Zealand domestic law. This meant the use of PFOS products in New Zealand was banned completely and strict controls were set around their storage and disposal.
The EPA reissued the 2006 Group Standard in 2017, to take into account changes brought about by health and safety reforms, but this did not lift the restriction on PFOS.
EPA investigation launched 20 December 2017
The EPA had assumed new enforcement powers following changes to the HSNO Act, which came into force from 1 December 2017. Using those powers, on 20 December 2017 the EPA announced it was launching an independent investigation to find out whether firefighting foams containing PFOS had been imported, manufactured, used, sourced or disposed of at places other than NZDF sites.
The scope of the EPA’s investigation was different from that run by the All-of-Government group, as it is not responsible for finding or cleaning-up soil or water at contaminated sites.
The EPA sought to ensure that any non-compliant foam was removed and disposed of in an approved, safe, way so it could never be used again. It also required that any places or equipment in contact with the foam were decontaminated, and that clean-up materials were appropriately disposed of.
Initial focus of investigation – airports
The EPA began by investigating airports, as the NZDF sites with suspected PFOS contamination were airbases. Commercial airports were the first priority – 14 were asked to provide information about their firefighting foams. Larger airports were contacted first, as they had their own dedicated firefighting resources.
After this initial approach, a further 20 smaller airports were reviewed.
Next stage – identifying other sectors
The EPA used an evidence and risk-based approach to prioritise other sites that may have possessed, used or stored PFOS foams. Risk criteria considered were:
- volume of firefighting foam likely to be held
- sector size
- public risk
- EPA knowledge of the sector and its history
On this basis, the EPA selected as the next priority for investigation ports, refineries, bulk fuel storage sites and petrochemical sites.
The third priority sector identified covered New Zealand-registered ships and shipping companies.
Focus on storage of foam
The investigation construed “use” of PFOS-contaminated foam to include foam stored in equipment, such as firefighting trucks or firefighting systems, or in containers, so that it is available for immediate use in an emergency.
Where PFOS-contaminated foam was unable to be replaced immediately (for example, for public safety in the event of an air crash), we allowed organisations to store it (in compliance with applicable EPA hazardous substances requirements) until a replacement could be found.
The EPA’s approach to compliance
The EPA adopted the standard Voluntary, Assisted, Directed, Enforced (VADE) investigative model. This uses a graduated range of approaches – from assistance to those who want to do the right thing but don’t always succeed, through to invoking the full force of the law for wilful illegal behaviour.
The aim of the investigation was to secure the best outcome by working with parties, either on a voluntary basis or via a compliance order, to ensure they took the necessary steps regarding decontamination and disposal.
A black-and-white, full force of the law response – such as prosecution – is not always considered best practice in addressing non-compliance, especially where those under investigation indicate willingness to comply.
The EPA’s choice of enforcement action was also guided by consideration of:
- the extent or risk of harm to the public and the environment
- the conduct and compliance history of the person or business
- parties’ attitude to compliance
EPA investigators sought from each party a list of foams currently in use or storage, by brand name and type. Meetings were held at the various locations, always involving two HSNO-warranted EPA enforcement officers. The EPA sent follow-up letters if it required additional information.
Following the meetings, premises and facilities were physically inspected. This included sampling firefighting foam under strict protocols, to prevent cross-contamination, and to protect the integrity of the chain of custody. An “A” and a “B” sample were collected from each selected area or container.
“A” samples were sent to AsureQuality, Wellington, for a Certificate of Analysis for the presence of PFOS, PFOA and other PFAS compounds. “B” samples were kept intact in case the company requested a second test. None did.
Sites where PFOS firefighting foam was discovered
Foams containing PFOS were found at six airports; in equipment owned by two companies that service airports; at three sites controlled by a major oil company; in two tug boats; and at a tyre company.
Firefighting foam with lower levels of PFOS was also found at a variety of other sites. These lower levels likely resulted from contamination arising from previous use of PFOS foams.
In all cases, operators took the EPA’s direction, and complied with legal storage and labelling obligations.
EPA investigators required 13 sites to flush out and clean equipment and systems to ensure they would not contaminate compliant firefighting foam. Operators also needed to ensure that residues after rinsing out equipment complied with Resource Management Act and trade waste by-laws.
Stage 1: Airports
Of the 14 airports approached initially, four confirmed they held non-compliant firefighting foam (3M Light Water): Gisborne, Nelson, Palmerston North and Hawke’s Bay. EPA investigators physically inspected these airports, and equipment was examined and samples taken.
Later testing showed PFOS contamination in foams at three further airports. Two had low levels of contamination in foam in two fire trucks each; the other had a low level of contamination in redundant foam in storage. The airports concerned were Queenstown, New Plymouth and Auckland.
Of the remaining 19 airports investigated, Kapiti Coast and the Chatham Islands confirmed they held redundant non-compliant firefighting foam (3M Light Water) in storage.
The EPA physically inspected 10 commercial airports of the 34 identified.
Stage 2: Ports, refineries, bulk fuel storage and petrochemicals sites
Three of 92 sites investigated confirmed they held PFOS firefighting foam. All were controlled by Shell Taranaki Ltd in New Plymouth.
Stage 3: New Zealand-registered ships and shipping companies
Two of the New Zealand-registered ships and shipping companies investigated held non-compliant foam. They were:
- Marine Services Auckland Ltd (on the vessel MV Maui 1)
- Lyttelton Port Company (on the vessel MV Purau)
Compliance and enforcement
Although the EPA investigation identified PFOS firefighting foam at several locations, there was no evidence that anyone had imported it after 2006, when PFOS foams were excluded from the Firefighting Chemicals Group Standard, meaning they could no longer be imported into New Zealand.
Those subject to the investigation showed a strong desire to comply with HSNO Act requirements. Sites were proactive in managing the situation and working towards compliance, as the EPA’s investigation report shows.
In response to our investigation, organisations have taken a range of actions, including seeking export permits to enable environmentally-sound disposal of PFOS foam by high-temperature incineration overseas, and engaging environmental consultants to manage their sites.
The EPA served three Compliance Orders early in its investigation, two relating to Nelson Airport Ltd and Nelson Airport Fire Service Ltd. A third Compliance Order was served on a professional services company – Task Protection Services Ltd – that owned and controlled fire trucks, equipment, containers and firefighting foam at Gisborne, Hawke’s Bay and Palmerston North Airports.
Early in 2019, a further Compliance Order was served on the Lyttelton Port Company.
A Compliance Order is a directive instrument that sets out clear actions required to resolve a particular issue. The EPA issued these orders so there would be no misunderstanding of what was required to rectify non-compliance. It is an offence not to comply with such orders.
Recipients of the three Compliance Orders relating to airports were required to:
- stop using PFOS firefighting foam (allowances were made for emergency use);
- seek technical advice from EPA-approved experts, and lodge with the EPA a written plan regarding steps to be taken to discontinue use of PFOS foams, and to safely remove, transport and dispose of them; and
- submit action plans to the EPA outlining arrangements for things such as disposing of the foam and associated containers; cleaning firefighting trucks and hangars that held PFOS foam; and storing contaminated waste water.
Developing agreed, final plans was protracted because of the highly technical nature of the work, the need for the parties to retain appropriate expertise, and other logistical challenges.
The EPA is monitoring implementation of the plans, and will follow-up as required. The parties involved continue to have legal responsibility for complying with the law, achieved through execution of their respective plans.
The EPA investigation is now in a “trust and verify” stage. This means it is visiting entities from a cross-section of sectors that have self-assessed themselves as being compliant. During the EPA visits, firefighting foam is tested to check the integrity of the self-reporting regime.
Review of regulatory instruments
The EPA is working to ensure that the relevant regulatory tools are effective. There needs to be clarity about which firefighting foams are legal for use in New Zealand, and a sound policy basis for the exclusion or restriction of particular foams in the Fire Fighting Chemicals Group Standard.
The EPA’s work will take account of expanding scientific knowledge about these substances, and recent international developments in the regulation of firefighting foams. It will include reviewing and amending:
- the Fire Fighting Chemicals Group Standard 2017
- the Hazardous Substance (Storage and Disposal of Persistent Organic Pollutants) Notice 2004
These instruments regulate the use, storage, and disposal of firefighting foams including, in the case of the latter, the old PFOS-containing products.
The EPA is intending to issue consultation documents on proposed amendments to this Group Standard and Notice in June 2019.
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