Aylward, Joshua --- "Defence's toxic legacy" [2018] PrecedentAULA 30; (2018) 146 Precedent 4

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DEFENCE’S TOXIC LEGACY

By Joshua Aylward

For more than a century, the Australian Defence Force has constructed and operated bases in and around dozens of communities across Australia. Unfortunately, their legacy is unfolding as one of toxic contamination for the communities that surround them. Three claims have been brought against the Commonwealth, including two class actions by residents of affected towns. Untold numbers of lives and livelihoods have been destroyed.

OAKEY

Oakey is a small rural town of approximately 4,500 residents located 200kms west of Brisbane. The community acts as a service centre to surrounding farms and grazing properties and its local industry is based largely on processing livestock and grain, and race horse training.

The Army Aviation Centre Oakey (the Base) abuts the immediate northern edge of Oakey. The Base was originally established in 1943 as a Royal Australian Air Force (RAAF) base serving as a maintenance depot for the RAAF base at Amberley. The Army assumed responsibility for the base in 1969 and developed the facility as an Army aviation training base primarily under the responsibility of 1st Aviation Regiment, which was headquartered at Oakey until 2005. At its busiest, more than a thousand personnel are stationed at the Base.

The Base has been part of the Oakey community and a mainstay of the local economy for decades. Until recently, Base personnel and their families often lived and integrated into the community. Many of the residents in Oakey have worked in, with, for or in close association with the Department of Defence (Defence) for generations.

AQUEOUS FILM FORMING FOAM (AFFF)

Use of AFFF

As part of the operation of the Base, from about 1977, Defence regularly conducted fire drills, firefighting training, fire tests, mock emergency aircraft landing and accident drills, foam training and nozzle testing (including the testing of firefighting trucks and equipment) at the Base.^[1] The foam used by Defence was an Aqueous Film Forming Foam (AFFF), principally a product known as ‘Light Water’, produced by American Manufacturer 3M.

The training activities included weekly training, daily training and daily testing. The weekly training involved igniting significant quantities of petroleum hydrocarbon fuels and other combustible materials in various areas around the Base and extinguishing the fire with AFFF, particularly in an area known as the ‘former fire training ground’.^[2]

The daily training was undertaken at the rear of the former fire station on the Base on a grassed area or bare ground. In addition to the daily training was daily testing, which involved routine testing of equipment to monitor performance of the tenders (trucks) and their hand-held lines.

All of these training activities resulted in the discharge of very substantial quantities of AFFF on to bare ground for more than 25 years.

To a lesser extent, the AFFF was also used in fire incidents, fire suppression systems in workshops and hangars, and for off-label uses, including as a general detergent or for celebratory discharges (for example, the dousing of personnel who were promoted or achieved a significant milestone, such as 500 hours of flight training).^[3]

Defence has yet to confirm when the AFFF was last used at the Base. However, Defence and its contractors have publicly released various contradictory dates, spanning from the early to mid-2000s.

Disposal of AFFF

The AFFF, along with the general fire run-off (the usual ‘combustion by-products’ created from a fire), was generally directed by Defence towards the bare ground, into unsealed earthen ditches and into the drainage systems on the Base. These drainage systems redirected the stormwater flow off the Base, through the town of Oakey and towards the Oakey Creek.^[4]

In or around 1999, Defence constructed an underground storage tank for collecting the run-off and foam. However, it was ineffective, leaked, and was rarely used.^[5]

Formulation of AFFF

The AFFF used by Defence, ‘Light Water’, was modified over time by 3M. However, we do know that the ‘Light Water’ used at the Base contained per- and poly-fluoroalkyl substances (PFAS). This group of chemicals included perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA) and perfluorohexane sulfonate (PFHxS).

The concern regarding PFAS chemicals stems largely from the fact that they are bio-accumulative and bio-persistent. In other words, these chemicals do not break down in the environment; they accumulate in the human body and in animals, and are toxic to both humans and the environment.

July 2014 announcement

In July 2014, Defence made its first public announcement regarding AFFF. Defence called a town meeting in Oakey and presented its report detailing the extent of the contamination, and drew a 56 square kilometre contamination plume encompassing a majority of the township. The chemicals were also described by Defence at a public meeting held in Oakey in 2014 as ‘the new asbestos’.^[6]

The reports that were provided showed that the toxic chemicals had spread more than 8kms south of the Base, and down into the aquifers to a depth of over 140 metres. A suite of PFAS chemicals had been found in nearly every water bore that Defence had tested in the community. Further testing and reports would show that these chemicals were present in abnormally high levels in the soil, below ground water, above ground water, the biota (animal and plant life) throughout Oakey, and also in human serum (blood).

DEFENCE REPORTS

Since the July 2014 announcement, Defence has produced numerous environmental and human health reports for Oakey and other Defence bases. With each report that Defence published, the greater the Oakey contamination plume had grown.

The true extent of the contamination and its pathways off the Base was unimagined at the time of the July 2014 announcement. A Defence report one year later, in 2015, indicated that:

‘presently, complete exposure pathways are likely to exist between PFC [PFAS] impacted media sourced from the AACO [the Base] and:

• domestic irrigators extracting water for edible crops and livestock;

• agricultural irrigators (production of edible crops and livestock);

• agricultural users of biosolids sourced from regional wastewater treatment plants;

• recreational users of Oakey Creek and sporting fields; and

• the regional terrestrial and Oakey Creek ecologies (including but not limited to avian species and freshwater mussels and edible terrestrial and aquatic species).’^[7]

In a 2016 AECOM Australia (AECOM) report,^[8] Defence modelled the Oakey contamination plume for 100 years into the future (until 2115). This ‘100-year plume’ showed a substantial expansion of the contamination towards to the west and south-west of the Base. The 100-year plume also conservatively assumes that the source has ceased (that is, that there would be no continuing input of PFOS and PFOA into the water table – specifically from the soil under the Base) and that pumping of local private bores would continue to extract water only at the current rate.^[9]

Further Defence reports have shown that the concentration of PFOS in the plume has largely exceeded health-based guidance values for that compound issued by the Commonwealth, even before taking into account the additive effect of further PFAS chemicals. This includes the Health Based Guidance Values for PFAS: For Use In Site Investigations in Australia, issued by the Commonwealth Department of Health in April 2017. Defence has also issued some specific health precautions for Oakey in respect of certain activities including consumption of groundwater; incidental ingestion via showering, bathing, swimming pools, wading pools, sprinkler play, consumption of fruit and vegetables grown in the local soil; consumption of eggs; consumption of meat from sheep, cattle and fish; and outdoor use within the extent of the toxic plume.^[10]

EARLY DEFENCE REPORTS

What came to light after the July 2014 announcement was that Defence had been conducting relevant environmental reports for decades, and that at least ‘by 1983, information was available to the Respondent [Defence] to indicate that AFFF and Fire Run-Off was potentially damaging to the environment’.^[11]

In 1990, Defence commissioned a report in Oakey regarding the effect of Defence’s activities, entitled Ground Water Quality and Drinking Water Quality for the Oakey Aviation Base and Township of Oakey.^[12] This report identified many flaws in Defence’s operational activities and expressed concern that the Base contamination had spread into the town of Oakey.

In May 2000, the Commonwealth received a letter from Charles Auer at the US Environmental Protection Agency (US EPA), which included the following statements:

• ‘I would like to draw your attention to an important development in the US which concerns a persistent, bioaccumulative, and toxic chemical.’

• ‘Following negotiations with EPA, 3M Corporation today announced that it will voluntarily phase out perfuorooctanyl sulfonate (PFOS) chemistry...EPA supports this effort which began as a result of data 3M supplied to the Agency which indicated that these chemicals are very persistent in the environment, have a strong tendency to accumulate in human and animal tissues and, based on recent information, could potentially pose a risk to human health and the environment over the long term. The company plans to exit worldwide from production of these chemicals by the end of the year.’

• ‘Preliminary data indicated to EPA that PFOS is of significant concern on the basis of evidence of widespread human exposure and indications of toxicity in a two-generation rat study. In addition, EPA’s preliminary risk assessment indicated potentially unacceptable margins of exposure (MOEs) for workers and possibly the general population.’

• ‘At the same time, we agree that continued manufacture and use of PFOS represents an unacceptable technology that should be eliminated to protect human health and the environment from potentially severe long-term consequences.’^[13]

Some years following these announcements by 3M and the US EPA^[14], Defence commissioned a report which has come to be known as the ‘Colville Report’.^[15] This report found, among other things, that:

‘The management and use of AFFF across Defence facilities falls below the management practices undertaken by other Australian and international organisations.

...

In many cases across Defence the AFFF waste-water is being released into the environment, with the potential of AFFF pollutants contaminating soil, surface waters and groundwater on Defence Land and neighbouring properties.’^[16]

Undoubtedly, much more will be known about Defence’s knowledge at the completion of the Hudson & Ors v Commonwealth of Australia (Hudson) trial, an action that has been brought by the affected residents of Oakey against Defence and is listed to commence in 2019.

ENVIRONMENTAL MANAGEMENT REGISTER

The State of Queensland has the power to place lots of land on the Environmental Management Register (EMR) or the Contaminated Land Register (CLR). The State of Queensland mooted using this power in Oakey, and ultimately placed a number of lots on the Base on the EMR. The reason stated on the EMR is that the land is subject to a hazardous contaminant described as ‘levels of fluorinated organic compounds exceeding the adopted health base criteria identified on site from firefighting foam used in training exercises between 1970 and 2005’. In Hudson, the applicants claim:

‘(a) land in the Relevant Area (including land owned by the Applicants and Group Members) may be recorded on the environmental management register or the contaminated land register (EMR/CLR) established pursuant to s540A(1)(d) of the Environmental Protection Act 1994 (Q) (EPA(Q)), pursuant to ss371 or 372 of the EPA(Q); and

(b) owners of land in the Relevant Area (including land owned by the Applicants and Group Members) may be obligated to disclose to prospective purchasers that land is and/or that there is a risk that land may be contaminated by PFC contaminants (with any contract of sale subject to rescission if disclosure is not made).’^[17]

In response to these allegations, Defence states that ‘there is some risk that land in the Relevant Area may be recorded on the EMR or CLR’ and that ‘if the land is registered on the EMR or CLR, owners will be obliged to disclose such registration to prospective purchasers’.^[18]

HEALTH

A major concern for those living in the affected communities are any adverse health impacts from being exposed to these chemicals.

Countless studies have been conducted globally regarding the effect of these toxic chemicals on humans. Based on these studies, the United Nations, European Union, US EPA and most other western countries have published guidelines and limits around these chemicals.

These studies have raised serious concerns for those living in these affected communities. The Queensland Government’s position, after reviewing these studies, is that:

‘Probable associations have been found between exposure to PFOA, PFOS and other fluorinated organic compounds and health effects in humans including hyperuricaemia, high cholesterol (hypercholesteraemia), ulcerative colitis, thyroid diseases, testicular cancer, delayed puberty, asthma, kidney cancer, liver damage, pre-eclampsia, ADHD (attention deficit hyperactivity disorder), endocrine disruption, breast cancer and elevated blood pressure during pregnancy.’^[19]

Despite the plethora of international scientific material, however, the Commonwealth has recently stated that ‘there is currently no consistent evidence that exposure to PFOS and PFOA causes adverse human health effects...However, as a precautionary measure...the most important thing to do is to reduce exposure to PFAS.’^[20] This directive appears to be at odds with the rest of the western world, an alarming response should the health risks be definitively proven and linked in current and future investigations.

SENATE INQUIRY

On 30 November 2015, the Senate referred the ‘Contamination of Australia’s Defence Force facilities and other Commonwealth, state and territory sites in Australia’ [with AFFF] to the Foreign Affairs, Defence and Trade References Committee for inquiry and report.

The committee sat in the affected communities of Oakey and Williamtown (located in NSW), as well as in Canberra. Its recommendations were:

‘Recommendation 1

2.67 The committee recommends that the Department of Defence recommence and fund a program of blood tests for residents in the Oakey investigation area on an annual basis.

Recommendation 2

2.70 The committee recommends that the Department of Defence ensure that mental health and counselling support services are provided free of charge to those affected by PFOS/PFOA contamination from Army Aviation Centre Oakey, and that these services continue for as long as they are required by residents.

Recommendation 3

2.74 The committee recommends that the Commonwealth Government commit to voluntarily acquire property and land which is no longer fit for purpose due to PFOS/PFOA contamination from Army Aviation Centre Oakey. The committee further recommends that the Commonwealth Government assist residents who may wish to relocate to an alternative estate within the local community which is free from contamination.

Recommendation 4

3.55 The committee recommends that the Government explicitly legislate for the immediate removal and safe disposal of PFOS and PFOA firefighting foams from circulation and storage at all Commonwealth, state and territory facilities in Australia.

Recommendation 5

3.60 The committee recommends that voluntary blood testing be made available to current and former workers at sites where firefighting foams containing PFOS/PFOA have been used, and current and former residents living in proximity to these sites who may be affected by contamination.

Recommendation 6

3.67 The committee recommends that the Department of the Environment complete the domestic treaty making process for the ratification of the addition of PFOS as an Annex B restricted substance under the Stockholm Convention on Persistent Organic Pollutants before the end of 2016.

Recommendation 7

3.71 The committee recommends that the Commonwealth Government review the Environment Protection and Biodiversity Conservation Act 1999 and, if necessary, seek to have it amended to enable the Department of the Environment to assume a national leadership role and intervene early should other legacy contamination events emerge on the scale of Williamtown or Oakey, especially when contamination spreads from land controlled by Defence to non-Commonwealth land.

Recommendation 8

4.9 The committee recommends that it continue to monitor the Department of Defence's handling of contamination of its estate and surrounding communities caused by PFOS/PFOA, and report to the Senate on an interim basis as required.

Recommendation 9

4.10 The committee recommends that it continue to monitor the response of, coordination between and measures taken by Commonwealth, state and territory governments to legacy contamination caused by PFOS/PFOA, including the adequacy of environmental and human health standards and legislation.’^[21]

The majority of these Recommendations have not been implemented. The Commonwealth has, however, provided:

• one-off blood testing for the communities of Oakey, Williamtown and Katherine;^[22]

• mental health support for three of the affected communities; and

• ongoing monitoring of the contamination on Defence land.

There have been no indications from the Commonwealth that it intends to implement any of the remaining Recommendations.

COMMUNITY CLASS ACTIONS

To date, two communities, Oakey (Qld) and Williamtown (NSW), have commenced proceedings against the Commonwealth of Australia for the historic use of AFFF (Hudson and Smith & Ors v Commonwealth of Australia (Smith) respectively).

These communities have brought claims in nuisance, negligence, and breaches of statutory duties.

The loss they claim includes:

(A) diminution in the value of the class members’ land;

(B) loss of opportunity to acquire land in a different area;

(C) wasted expenditure in developing the class members’ land;

(D) distress, annoyance and inconvenience;

(E) diminution in the value of the applicants’ business; and

(F) loss of profits.^[23]

Although the Hudson and Smith matters are separate actions, the court now has them on the same timetable, with both trials slated to begin in August 2019. The matters are likely to be heard concurrently or consecutively, depending on the extent to which they overlap. Unquestionably many affected communities around Australia are awaiting the outcome; Defence is currently conducting detailed environmental investigations into the contamination caused by use of AFFF at 20 additional Australian bases.^[24]

BRISBANE AIRPORT

In October 2017, the Brisbane Airport Corporation (BAC) filed proceedings against Airservices Australia (ASA) in relation to the use of AFFF at the Brisbane Airport.^[25]

The BAC claims that Brisbane Airport has been contaminated due to the use of AFFF products by ASA. As in the community class actions, it claims that the PFAS chemicals are and will remain in the soil, water and biota for many years to come.

In addition to the nuisance claims brought in the community class actions, the BAC is claiming that ASA breached its contracts and leases. The BAC seeks specific performance and damages. The ASA is yet to file a defence.

CONCLUSION

AFFF containing PFAS chemicals was used on more than 70 Australian Defence bases, and many commercial airports, from the 1970s to around the mid-2000s. It is largely unknown when Defence stopped using the chemicals on different bases. The concern is that in some places the chemicals have not been completely phased out; in 2017, Defence was still using firefighting foam containing PFAS at its bases in Darwin and Townsville.^[26]

These chemicals have emanated from Defence bases for decades, and thousands of Defence samples in these communities have shown that PFAS is present in substantial levels in the soil, water, broader biota and in human serum (blood). Little can be done to abate the spread of these toxic chemicals. Defence has begun to conduct remediation on some of its bases, generally consisting of pumping and treating the groundwater, and removing some contaminated soil. No one knows how successful these remediation efforts have been. What is known is that Defence is not conducting any remediation efforts ‘off-base’ in the communities. While Defence’s attempts to remediate represents a positive step, the scientific consensus is that is impossible to remove most of this toxic chemical from the environment.^[27]

The Commonwealth is grappling with its greatest environmental contamination since Federation, and meanwhile affected communities continue to live in limbo, under the Defence’s ‘toxic plumes’ or in the ‘red zone’.

The class actions currently underway by the long-standing Defence communities of Williamtown and Oakey (Smith and Hudson), and the Queensland Supreme Court civil action of Brisbane Airport Corporation v Airservices Australia, foreshadow the awaiting perils for the Commonwealth and its corporations.

This is a legacy that will stain the Commonwealth’s reputation for many decades to come.

Joshua Aylward is Special Counsel in the class actions division of Shine Lawyers. Joshua acts on behalf of communities affected by Defence’s use of AFFF, and is the principal lawyer for the applicants in Hudson. EMAIL [e-mail].

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^[1] Hudson & Ors v Commonwealth of Australia (NSD1155/2017) (Hudson) Statement of Claim dated 13 July 2017 (SoC), at para 29.

^[2] Ibid, at para 31.

^[3] Ibid, at para 34.

^[4] Ibid, at para 36.

^[5] Ibid, at para 37.

^[6] Ibid, at para 31.

^[7] AECOM Australia Pty Ltd, PFC Background Review and Source Study (23 July 2015).

^[8] AECOM Australia Pty Ltd, Stage 2C Environmental Site Assessment, Army Aviation Centre Oakey (26 July 2016).

^[9] Hudson SoC at para 49.

^[10] Ibid; Australian Government, Department of Health, Health Based Guidance Values for PFAS: For Use In Site Investigations in Australia (April 2017); AECOM Australia Pty Ltd, AECOM Addendum to Stage 2C Environmental Investigation – Human Health Risk Assessment, Sensitivity Assessment of HHRA Outcomes for Food Standards Australia New Zealand Tolerable Daily Intake, Army Aviation Centre Oakey (4 April 2017), 20.

^[11] Hudson defence at para 71(a)(i).

^[12] Report prepared by Lt DJ Bristow, entitled Investigation into Waste Disposal Practices Oakey Army Aviation Base and its Effects on Ground Water Quality and Drinking Water Quality for the Oakey Aviation Base and Township of Oakey, December 1990 – January 1991, dated 19 February 1991.

^[13] Email received by employees of the Commonwealth ([e-mail] and [e-mail]) from Charles Auer of United States Environmental Protection Agency on 16 May 2000 at 11:17am.

^[14] The US EPA emailed the Commonwealth; 3M made a public announcement on the same day.

^[15] Australian Government, Department of Defence, Environmental Issues Associated With Defence Use of Aqueous Film Forming Foam (May 2003).

^[16] Ibid, at 44.

^[17] Hudson SoC at para 61.

^[18] Hudson defence at para 61.

^[19] Queensland Government, Department of Environment and Heritage Protection, Firefighting Foam Management Policy – Explanatory Notes Revision 2 (July 2016) <https://www.ehp.qld.gov.au/assets/documents/regulation/firefighting-foam-policy-notes.pdf>.

^[20]Australian Government, Department of Defence, Army Aviation Centre Oakey – Stage 2C Environmental Investigation (December 2017) <http://www.defence.gov.au/Environment/PFAS/Docs/Oakey/FactSheets/20171206AACOHHRAFindings.pdf> .

^[21] Parliament of Australia, Contamination of Australia’s Defence Force facilities and other Commonwealth, state and territory sites in Australia (30 November 2015) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/ADF_facilities>.

^[22] The author also acts for the community of Katherine to bring proceedings against the Commonwealth for the PFAS contamination. These proceedings are conditionally funded by IMF Bentham Ltd (which is also funding the actions on behalf of the communities of Oakey and Williamtown).

^[23] Hudson SoC at para 81.

^[24] Defence made these investigations public in 2015 and 2016, see <http://www.defence.gov.au/Environment/PFAS/InvestigationAndManagementSites.asp> .

^[25] Brisbane Airport Corporation Pty Ltd (ACN 076 870 650) v Airservices Australia (BS11343/2017).

^[26] Georgia Hitch, ‘Department of Defence still using firefighting foam containing PFAS in Darwin, Townsville’, ABC News (online), 9 April 2017, <http://www.abc.net.au/news/2017-04-08/defence-still-using-firefighting-foam-containing-pfas/8422740> . The Department of Defence’s website says:‘From 2004, Defence commenced phasing out its use of legacy firefighting foams containing perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) as active ingredients. Defence now uses a more environmentally safe firefighting product called Ansulite. Ansulite does not contain PFOS and PFOA as active ingredients, only in trace amounts’: <http://www.defence.gov.au/Environment/PFAS/FAQs.asp#QAnsulite> . However, the current AFFF that Defence is using likely breaks down to PFAS chemicals.

^[27] In its program investigating the contamination of the land and water in affected communities, aired on 9 October 2017, ABC’s 4 Corners estimated that the total expenditure to date of public funds on remediation programs around Williamtown and other airbases since the end of 2015 has exceeded $100 million. Environmental scientist Professor Mark Taylor of Macquarie University and NSW Chief Scientist, Professor Mary O’Kane, both expressed doubt that remediation could ever be completely successful. A Defence spokesman admitted that such efforts would probably cost ‘hundreds of millions of dollars’. See <http://www.abc.net.au/4corners/contamination/9032140> .