Why a Law Blog on ‘Forever’ Chemicals?
If you’re curious about why a law firm is delving into the realm of ‘forever chemicals,’ you’re not alone. At Jackson Solicitors, we address and demystify complex issues that directly impact the lives of our clients. The enduring presence and effects of forever chemicals both on our environment and our health, is an emerging area of public concern, and one where both the law and regulators are playing catch-up. Watch this space.
A Chemist Turned Lawyer’s Insight
The pivot from chemistry research to legal practitioner puts the principal of Jackson Solicitors squarely at the intersection of science and law – an advantage almost all other practitioners lack. The Principal doesn’t just understand the legal aspects of forever chemical contamination – he has been part of the scientific process, having used these substances to calibrate the instruments that are now being widely used to confirm PFAS contamination.
What Are They and Why Should You Care?
Forever chemicals are synthetic chemicals with a variety of industrial applications. They are known for their strong chemical bonds which impart a very high resistance to natural degradation processes. These substances are known scientifically as ‘per- and poly-fluoroalkyl substances’, or PFAS and PFOS for short. There are many varieties but all are to varying degrees toxic to humans and other lifeforms.
The Impact on Health and Environment
Due to their chemical ruggedness, tendency to bioaccumulate and toxicity, forever chemicals present an enormous challenge to regulators and health experts. They just aren’t going away and the nasty effects of long term exposure at low levels is something we will be finding out about as time catches up with lax regulation.
Known Unknowns
1. Persistence and Bioaccumulation: PFAS accumulate in soil, water, and in certain tissues of living organisms. PFAS can also be in the air we breathe, for example in aerosols. Over time, these substances can magnify in concentration along the food chain, potentially reaching levels harmful to flora and fauna. The higher up the food chain you sit, the greater the potential harm from exposure to forever chemicals. And as we all know, humans are the apex predator.
2. Endocrine Disruption: A physiological concern with forever chemicals is their capacity to disrupt endocrine systems. The endocrine system governs hormone production in the body. Interference by forever chemicals may cause reproductive and developmental abnormalities, immune dysfunction, and increased susceptibility to certain cancers.
3. Regulations that are not fit for purpose: Despite our growing awareness of PFAS in the environment and its negative health impacts, regulators still do not know what constitutes a safe level of exposure for humans over long periods, other than zero. Regulators are forced to rely on laboratory testing which for ethical reasons cannot involve human subjects.
Assessments are then made based on best practice for other pollutants and the results of lab tests on proxies. Short of complete removal of PFAS from the environment, regulators then estimate a safe upper threshold for forever chemicals in the environments which humans inhabit.
Historically, the rapid growth of PFAS use in chemical processing outpaced government regulation. When scientists first discovered how robust these molecules were, they quickly started using them in consumer and industrial products. This is an example of the risk versus reward approach adopted by regulators which, while generally working well, from time to time goes horribly wrong. That’s the case with forever chemicals.
4. Elimination and replacement: Aside from their chemical ruggedness, there is a good reason forever chemicals are turning up everywhere. It’s because they have very desirable properties that scientists simply can’t find in other molecules. For example, they are excellent for fighting fires and making heat-resistant coatings. New and novel applications were quickly discovered and manufacturing licenses were granted. Their use and production proliferated.
The trouble now is that a suitable replacement needs to be found and, short of shooting spent forever chemicals into deep space or sequestering them in the centre of the earth, how do you get rid of them? Incineration is not an option unless the flue – which would contain combustion waste that is even nastier than PFAS itself – is caught and recycled.
Regulation and Contamination
New South Wales regulates the use, storage and disposal of forever chemicals under the Protection of the Environment Operations Act (PoEOA). Forever chemicals are classified as ‘scheduled’ substances. This means that you need to obtain a licence before you are allowed to use significant quantities. The EPA is the local licensing authority. Compliance with reporting and containment requirements is strictly enforced to prevent environmental contamination.
Remediating land contaminated with forever chemicals is a complex and costly process. The parties responsible for the contamination will be required to undertake remediation at their expense. Due to the cost of clean-ups, the entity responsible for the pollution will probably deny any wrongdoing – that’s where it is beneficial to speak with a lawyer comfortable with the science and the law.
Going Forward, What Can We Expect?
In short, stricter regulations, tougher penalties for polluters and more onerous decontamination requirements.
If you find yourself living near a site suspected of contamination — whether it’s a military base, a firefighting training or material testing facility or an industrial manufacturing plant — Jackson Solicitors can provide the expertise needed to navigate the legal and scientific complexities associated with the impact of these chemicals on your life.
Please do not hesitate to contact us at 02 4969 1800.
