PFAS are a group of man-made chemicals that have raised significant environmental and health concerns across Australia. Victorian councils are likely to be affected by PFAS contamination in a number of ways, including landfills and waste management, use of water to irrigate sports fields and community gardens, road maintenance and waste disposal/reuse, and approving development on contaminated land. We recently presented a seminar to our Victorian council clients on PFAS and from that seminar we collated the frequently asked questions by Victorian councils about PFAS and their duties.

What are PFAS + Sources?

PFAS is a broad term used to describe a group of over 4,700 man-made chemicals, but USEPA estimates that there are up to 12,000 individual PFAS species. Broadly speaking, they are Per- and polyfluoroalkyl substances. Examples of PFAS chemicals are:

• Perfluorooctane sulfonate (PFOS)
• Perfluorooctanoic acid (PFOA)

Where are PFAS chemicals found?

PFAS chemicals have been widely used in a range of industrial and consumer applications since the 1940s. Some uses of PFAS include:

• Aqueous film forming foams (used for firefighting)

• Coatings in consumer products (e.g. Teflon, baking paper, aluminium foil, paper).

• Fabrics and clothes (e.g. Gortex®), carpet, stain repellents (e.g. ScotchGuard®)

• Cleaning products (e.g. floor and car polish)

• Sealants and paints

• Hydraulic fluids and lubricants.

• Building materials (e.g. composite wood)

• Vehicle components

• Commercial and industrial processes, for example, plastic and rubber manufacture, chrome plating and printing amongst many others

Landfills are now known to be a source of PFAS due to the prevalence of PFAS in consumer and industrial products and waste.

Why are PFAS important?

PFAS chemicals are resistant to heat, water, grease and oil, and as such are persistent and highly mobile in the environment. As a result, they are widely found in soil and water, and in addition, tend to bioaccumulate in animals and humans. They are part of a group known as Persistent Organic Pollutants, also referred to as ‘Forever Chemicals’. There are still lots of unknowns in regards to PFAS; and knowledge is constantly developing regarding their uses, properties and toxicology.

What are Victorian councils’ duties in relation to PFAS?

Councils should refer to the below checklist of legislation and key policies to understand their duties in relation to PFAS:

• Environment Protection Act 2017: S25 (General Environment Duty); Part 6.4 and 6.5 duties in regard to industrial and priority waste
• Environment Protection Regulations 2021 – Schedule 5
• Victoria Government Gazette - No. S 717 Thursday 19 December 2024 - classify certain soil that is PFAS-impacted soil as not priority waste and with a waste code of N122, instead of M270
• Waste disposal categories: characteristics and thresholds Publication 1828.3 September 2024
• National PFAS National Environmental Management Plan, v3.0, March 2025 (recent update to 2020 version)

Has there been litigation over PFAS involving Victorian councils?

The main cases and related inquiries to be aware of are:

• The Victorian Ombudsman Investigation into Environment Protection Authority decisions on West Gate Tunnel Project PFAS contaminated spoil disposal. The Ombudsman found EPA assessed the science accurately, however, there was a lack of communication by EPA and consultation with the community affected and a failure to consider relevant human rights. This resulted in a breakdown of trust and understanding in EPA.

• There have been two main Supreme Court cases: Moorabool Shire Council v Minister for Planning [2021] VSC 701 and Hume City Council v Minister for Planning [2022] VSC 187. These were legal challenges to the Minister’s decisions around exemption from public notice and related adoption and approval of planning scheme amendments, that sought to put in place bespoke planning controls with respect to the Maddingley and Bulla landfills – the idea was to authorise these landfills to receive PFAS contaminated spoil from the West Gate Tunnel Project. The challenges were made on administrative law grounds, namely that the Minister’s decisions were jurisdictionally invalid – the challenges were both unsuccessful.

When buffers are considered for landfills/ wastewater transfer stations etc, what is the life of these buffers beyond when such facilities are closed/capped?

When a landfill ceases to operate, one of the main ongoing issues is landfill gas, with carbon dioxide and methane being the gases of concern.

The EPA talks about 30 years as being the lifespan post-closure of a landfill but we find in many projects that that time span is longer. The EPA had initially outlined its guidelines in a publication called Recommended separation distances for industrial residual air emissions, Publication 1518, but it has recently (late 2024) updated these in the Separation distance guideline and Landfill buffer guideline publication.

Through the statutory planning system, there can be pathways to use land within the buffer. This is subject to an environmental audit process, for example under EPA separation distance guidelines and permit conditions. From time to time developers propose development in close proximity to landfills, and the proponents of those developments have used environmental consultants to advise that the risk of landfill gas migration is low or manageable and therefore the development should be approved.

However, challenges can arise from this approach. The most well-known example of this is Casey City Council and Brookland Greens estate, whereby the development was approved in close proximity to a landfill by VCAT and ultimately gases leaked into the subdivision. This resulted in a class action against EPA and Casey City Council.

What other government policy/direction is occurring regarding the future of landfills and other waste removal methods e.g. waste to energy facilities?

Several Victorian landfills are identified as state-significant infrastructure. The state significant landfills were previously identified in the Metropolitan Waste and Resource Recovery Implementation Plan 2016 and later adapted through various iterations, in the 2024 Victorian Recycling Infrastructure Plan.

Councils should also consider the ‘waste management hierarchy’ – an environmental protection principle under the Environment Protection Act 2017, and a key policy of the Victorian Recycling Infrastructure Plan too. The general principle of this hierarchy is that avoidance and reuse are at the apex, and disposal at the base. The idea of waste to energy (W2E), which is the process of converting waste to energy, is a part of the ‘waste management hierarchy’. We'll see more and more W2E facilities being proposed into the future to respond to the need to dispose of our waste, as there are no proposals for any new landfills to service Melbourne. To the extent landfills are used, the idea is to expand and protect existing landfills (the main ones being Ravenhall (being Melbourne Regional Landfill, or MRL, the largest), Wollert, Bulla, Hallam Road, Maddingley Brown Coal, and Werribee.)

Urban sprawl creates an ongoing challenge as housing encroaches upon the buffers to landfills. This underlines the need to plan where landfills are – which should include working out how long the lives of landfills are, what the population of Melbourne is, and what our future waste needs may be. New landfills are very expensive, and location is important, for the reasons above and in relation to other factors such as truck movements. The community ultimately pays the cost through increases to waste and landfill levies.

What is the relationship between leachate and PFAS?

Leachate at landfills includes a range of contaminants that are associated with the waste in the landfill, including PFAS. It includes substances such as ammonia, nitrogen, and salts, for example, and if there have been hydrocarbons or pesticides deposited in the landfill, then you may find some benzene and similar. The most common contaminant that we find in in landfill leachates is PFAS.

The uses of PFAS seems to have quite an overlap with Planning Practice Note 30's advice on uses that have the potential to contaminate adjoining land. In light of recent changes to Clause 55, how should councils deal with multi-dwelling developments on residential land adjoining existing/former contaminating uses where there is no environmental audit overlay?

This question refers to Amendment VC267, which amends the Victoria Planning Provisions by modifying clause 55.

By way of background:

• Clause 55 of all Victorian planning schemes makes provision for the considerations by town planners of proposals for development of two or more dwellings on a lot. Basically, it applies where townhouses and apartments are proposed.

• The environmental audit overlay is a planning tool that applies to land which is used to identify contamination, or potential contamination, and where it is applied it requires consideration of contamination and outlines a series of processes.

• The general thrust of Amendment VC267 is to narrow the scope of considerations where townhouses and apartments are proposed. Importantly, the reforms propose, amongst other things, that the responsible authority is exempt from and not required to consider matters such as the decision guidelines in clause 65, and there is mention also of certain other exemptions, including from specified matters under section 60 of the Planning and Environment Act.

• Planning Practice Note 30 says that: “Section 60 of the Planning and Environment Act 1987 requires a responsible authority, before deciding on a permit application, to consider ‘any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development’. Section 60 is applicable to potentially contaminated land, which may affect, or be affected by, use or development.”

Without an environmental audit overlay and a narrowed scope of considerations under clause 55, a question arises as to what consideration needs to be given to contamination. It is difficult to say at this point in time, however I would anticipate that this issue will be the subject of clarification by VCAT. We agree with the general proposition implied in the question, which is that with a narrowing of considerations and streamlining of decision-making processes, Amendment VC267 stands in tension with consideration of potentially contaminated land.

Under the GED, are councils obligated to be proactively testing water and soil for PFAS on road reserves and open space? Though we may not be the polluter, are we nevertheless responsible for managing its accumulation on our managed land?

By way of background, the GED (General Environmental Duty) under the Environmental Protection Act 2017 provides that a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

There is a need to consider the GED, and this depends on what is in the water that's being applied on those areas - where is that water coming from, and has it got PFAS in it? The person who has the management burden has the right to recover from the polluter – but the duty to manage provisions apply to whoever has management control over contaminated land. As such, councils may be responsible.

Do the provisions of the Landfill BPEM adequately deal with PFAS?

The landfill BPEM (Best Practice Environmental Guidelines) was developed in 2015 and is currently under review (788.3: Siting, design, operation and rehabilitation of landfills). Environmental auditors in Victoria have recently been asked for feedback in relation to the BPEM and making upgrades to it, so it is expected that the BPEM will be revised over the next 12 months.

The landfill BPEM remains one of a suite of helpful documents that should be considered in terms of managing a landfill, but our knowledge of PFAS has advanced considerably in the 10 years since it was launched. For example, the lining systems and designs that are specified do not consider PFAS or PFAS's ability to move through those types of liners. As such, the landfill BPEM has been designed based on knowledge of traditional contaminants like ammonia and nitrate, etc, and does not adequately deal with PFAS.

There's some great knowledge in the PFAS NEMP (PFAS National Environmental Management Plan) version 3 was released in March 2025, which councils should consider when looking at how to manage risks associated with PFAS at a landfill site.