Your discharge obligations
Published: 08 June, 2012
Future EU regulations that cover environmental issues will potentially affect foam discharge. In all EU Member States, as in the UK, national policies on fire fighting foams containing fluorochemicals are founded on a combination of EU Directives and local legislation.
EU Directives and Regulations ban the production of fire fighting foams containing >0.001 % (10 mg/kg) PFOS and any further production of PFOS-based foams; and which direct that any existing stocks may not be used or stored after 27 June 2011 and that these must be treated hazardous waste;
The UK Groundwater Regulations 1998 (SI 1998:2746) based on EU Groundwater Directive 80/68/EEC (GWD) prohibits the discharge of organohalogens as List 1 substances to groundwater and remains in force until December 2013;
The UK Environmental Permitting Regulations SI 0675 2010 incorporate the EU Groundwater Directive (GWD), the EU Water Framework Directive EC/60/2000 (WFD) and the EU Groundwater Daughter Directive EC/118/2006 (GWDD) into UK law under the principle of subsidiarity. These changes involve a period of transition necessary partly because the GWD remains in force until it is repealed in December 2013 when the new Directives apply.
One of the most significant parts of the new Daughter Directive (GWDD) for fire fighting foams is contained in Article §6.1(b) in which Member States are obliged to take all measures necessary to prevent the discharge of non-hazardous pollutants to groundwater where concentrations may rise over time, i.e., the pollutant is environmentally persistent, especially for indicative pollutants mentioned in Annex VIII to the WFD. Annex VIII(1) refers specifically to ‘…organohalogen compounds and substances which may form such compounds in the aquatic environment…’, ie, all fluorochemicals (see Georgina Crowhurst, European Energy and Environmental Law Review (2007) July, 203-210, ‘The Groundwater Daughter Directive; A UK Perspective’).
The potential significance of Article §6.1(b) cannot be overestimated. For the first time, as far as one is aware at least, this represents a regulatory attempt at controlling the continued discharge to groundwater of non-hazardous pollutants which are environmentally persistent. Since organohalogens including their degradation products are specifically listed in Annex VIII(1) of Directive 2000/60/EC, this article applies to the discharge of all fluorochemicals whether or not they are bioaccumulative or toxic so long as they or their degradation products are environmentally persistent. Highly fluorinated substances and/or their ultimate degradation products are some of the most environmentally persistent substances known. Regulators and their legal advisors with whom this has been discussed agree that this Article can only be read one way.
The problem with fire fighting foam is the way it is and has to be used operationally. This counts as an ‘open’ or dispersive application. At many incidents it is virtually impossible to prevent run-off from contaminating surface waters and directly, or indirectly, groundwater. Although some national enforcing authorities may have Memoranda of Understanding (MOUs) or Protocols in place allowing the use of fire fighting foam in emergencies, this is often tightly defined so as to apply only to situations in which human life or health are threatened and does not provide blanket cover for general fire fighting operations or training. Because the Directive includes degradation products one has to consider not only what happens when discharge occurs regularly but also the situation with a one-off discharge. As illustrated in the Figure a one-off discharge will result in the concentration of the original pollutant (s1; red) decaying over time but, and this is a very important ‘but’, the concentrations of any ultimate degradation products (s3; s5; s7; s8) will slowly increase with time eventually reaching a plateau so long as there is no further discharge. Intermediate breakdown products (s2; s4; s6) will peak and then decay on a time-scale determined by the reaction kinetics.
How will regulators and the industry cope in future with this legislation?