Lessons learned for multi-decade regulation to remove harmful substances from firefighting foams
Author : Simon Wood, Fuels Industry UK
07 June 2024
Decades after concerns were first raised about a class of persistent organic compounds (POPS) in firefighting foams, their use is being phased out. Fuels Industry UK's Simon Wood takes a look at why it took so long to remove Per- and polyfluoroalkyl substances (PFAS) and what lessons can be learned.
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For years, the main firefighting foams at UK refineries and terminals were Aqueous Film Forming Foams (AFFFs) containing certain long-chain PFAS such as Perfluorooctanoic acid (PFOA) and Perfluorooctanesulfonic acid (PFOS). AFFFs such as these are particularly effective in fighting fires involving flammable liquids. So, it is hardly surprising that they were used at refineries and terminals, which store large volumes of hydrocarbon fuels and solvents.
In fact, it was common for Major Accident Hazard sites to have large stocks of such AFFFs because they provide an effective emergency planning measure as required in regulation implemented in the UK through the HSE’s Control of Major Accident Hazards (COMAH). COMAH aims to prevent and mitigate the effects of major accidents involving dangerous substances that can cause serious harm to people or the environment. For high hazard sites, such as refineries and terminals, a COMAH safety report is a legal requirement that underpins the safe operation of the installation.
But PFAS are not just useful for fighting fires – they have many other beneficial properties. They are used for Gore-Tex coatings in water resistant clothing, as a component on non-stick Teflon pans and are even contained in makeup. A feature of these compounds, however, is their long chain carbon and fluorine bonds which are almost indestructible. These bonds – which give them their durable properties – mean they can also remain in the environment for a very long time and has led them to be called ‘forever chemicals.’
PFAS can move easily in the environment through water courses and have been found in groundwater, surface water and soil. Cleaning polluted sites of PFAS/PFOA is also technically difficult and costly. Unfortunately, they have also been found to be seriously harmful to animals and humans if swallowed. If releases continued, the substances would accumulate in the environment and drinking water. For firefighting foams, alternatives such as fluorine-free foams can be used in AFFFs in some instances, but large-scale testing is still ongoing, so appropriate regulation of PFAS is critical.
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International regulation begins with the Stockholm Convention
The journey of PFAS regulation for refineries and terminals began in 2009 when the substances were incorporated into the Stockholm Convention, an international treaty which seeks to eliminate or restrict the use of all POPs, including PFAS, over time. But it took until 2019 for the EU to publish Regulation 1021, which implements commitments under the Stockholm Convention on POPs. The UK Government is a signatory to this regulation, which was amended in 2021, and sets the compliance criteria for PFAS. And, in January 2022, the European Chemicals Agency (ECHA) submitted restriction proposals on many of the PFAS compounds found in firefighting foams. This restriction also brought forward the compliance deadline to 1st January 2023.
So, had the regulation of PFAS finally been sorted out? Well, not quite.
The ECHA restrictions brought some regulatory certainty for PFAS with long chain fluorine bonds (C7-C14) such as PFOS and PFOA. However, the Stockholm Convention sought to phase out all POPs and uncertainty remained for a category of PFAS with shorter chain fluorine bonds (C1-C6) which are still thought to be persistent in the environment.
The UK’s decision to leave the EU in 2016 also complicated matters. It meant the UK didn’t have to follow the route the EU was taking. At the point of compliance on the 1st January 2023, testing of alternatives was still ongoing, so decisions had to be taken by companies on whether to continue using AFFFs containing PFAS with shorter chain fluorine bonds (C1-C6) without the full picture on what could be used instead. In addition, EU member states were proposing different approaches to the restriction and regulation of PFAS with C1-C6, which had different timings for compliance.
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The UK REACH regulation team, which has published very little on PFAS regulations, was also not clear whether it would take a similar approach as the EU.
As well as broad policy questions, the HSE, which is the regulatory lead for chemicals, asked the Environment Agency to carry out a call for evidence on PFAS, which started in December 2021. The aim was to understand the extent of the use of all PFAS substances, including those with C1-C6 fluorine bonds, and to do a regulatory management options analysis (RMOA). The RMOA was published in April 2023, but it should be noted that it isn’t a legislative requirement or legally binding. The RMOA is a technical assessment of potential health and environmental risks associated with the use of a substance.
While policy and regulation were unclear, concerns about these substances became ever more apparent. Non-Government Organisations (NGOs), spurred by a growing media interest, pushed for UK Government to provide more clarity on PFAS. In 2022, a collection of NGOs raised concerns with UK Government about the increasing risk to human health and the environment in a detailed action plan. The plan was compiled by CHEM Trust, Fidra, Marine Conservation Society, Whale and Dolphin Conservation and the Wildlife & Countryside Link. It consists of recommendations for policymakers with the overall goal of being PFAS-free by 2035. Such pressure, led to a flurry of information gathering activity from regulators in relation to on-site inventories and potential legacy issues – work which is still ongoing today.
Despite the complexities that have arisen from technical, policy and public perspectives, progress has been made and companies are now in a position where they have enough information on the regulatory approach to long-chain PFAS substances. However, there remains some uncertainty around the regulatory approach on continued use of shorter chain PFAS and on how the alternative substances will act on certain types of large fires. These factors have combined to nuance the final decisions companies make on compliance, with some moving to the fluorine free alternatives and some opting to use the shorter chain PFASs, albeit knowing they are not a long-term solution.
Lessons learned
Simon Wood, Fuels Industry UK
As you might expect, there is much that we can learn from this process. For example, when a compliance goal is set, UK Government and regulators need to give early guidance and set expectations and achievable milestones along the way. It is also important for organisations to work very closely with the regulators where mitigation measures are uncertain so that both parties understand the complexities of achieving deadlines. Otherwise, the objective may be lost over the decades as corporate memory fades and conflicting compliance schedules unwittingly complicate matters.
We should recognise that heightening public interest in these forever chemicals played a key role in the outcome too. It led to calls on UK Government to take more action to move away from PFAS as fast as possible after evidence of bio-accumulation and toxic properties became clear.
Finally, organisations need to maintain a strategic view of policy and regulation affecting the business. Horizon scanning, engaging in consultations and with relevant authorities is essential to achieving this and should be at the heart of what organisations do. These activities may be time consuming but they can reduce the potentially higher costs and big headaches down the line.
Simon Wood presented on this topic at Hazardex Live 2024 on 28-29 February 2024. Visit www.hazardex-event.co.uk for information about our upcoming events.
About the author:
As Environment, Health and Safety Specialist, Simon Wood provides Fuels Industry UK members with expert advice on regulatory developments for environmental, process safety and occupational health and safety topics across the downstream oil sector. Simon Joined in January 2020 having previously gained experience with EDF Energy and the British Standards Institution developing and deploying strategies to deliver consensus through improved stakeholder understanding during negotiations.
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