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Foreign Affairs, Defence and Trade References Committee
09/03/2016
Contamination caused by firefighting foams at RAAF Base Williamtown and other sites

ROSS, Mr Rory Francis, Senior Solicitor, Shine Lawyers

SHANNON, Mr Peter Charles, Legal Partner, Shine Lawyers

[11:36]

CHAIR: We now welcome representatives from Shine Lawyers. Do you wish to add any additional information about the capacity in which you appear today?

Mr Shannon : I appear today as a representative of our clients—in excess of 50 people who have been in communication with Defence in respect of their contamination issues.

Mr Ross : I appear in the same capacity as Mr Shannon.

CHAIR: Would you like to make an opening statement before we go to questions?

Mr Shannon : I would, briefly. Thank you. First of all, on behalf of our clients I thank the senators for coming up. It is an important gesture, and one that is very much appreciated. We have noted the interim report and would like to thank the majority report in respect of the blood testing position and in respect of its endorsement of some compensation addressing. In respect of the blood testing, I understand the dissenting report; however, there are things in relation to that that I would like to emphasise.

I also note that the federal MP at Williamtown—a Liberal member, I believe—has very recently endorsed the attitude of obtaining blood testing. In respect of that we have two issues: we have the issue of those people who have not yet been tested, and whether it is reasonable to test and to continue testing. Obviously there are some people who will have a strong ground to justify testing, and there will be some who passed through Oakey 30 years ago who should not get a blood test. The problem is that blood tests are potentially very expensive—up to $700 a pop. If you have a strong reason to be concerned in relation to your health we totally endorse the idea of getting blood testing, but in respect of those people who have been tested that you have heard from today, the genie is out of the bottle. What do we now do with those people? Surely we monitor their health. How do we address the concern and the anxiety that has arisen as a result of that? When those tests were being done, everyone thought they would come back with results that would reassure the community. That is why they were done. But the reality is that it has now led to a great deal of information—information that we need to take advantage of, but which leads people.

There are things you can do if you have elevated levels of PFOS and PFOA et cetera. This is all emerging science, but we are aware, for instance, of bile sequestration procedures. A study has come out of Canada—we will hand up a bibliography shortly—and there is a process now whereby you can reduce your levels. Another process is phlebotomy, or venesection-type—not a venesection, but a bleeding, you might say—which, to be blunt, is why women often have lower levels. So there are things you can do about those things.

We would encourage the ongoing reassurance of those that have been tested as another issue, beyond just, 'Do we test broadly?' We are concerned that Defence in its submission says that it does not intend to conduct further blood testing in accordance with New South Wales health department requirements. As I heard in the submission in Canberra, there was a possibility that that was to be revised. But I would just like to have Mr Ross expand on the blood testing protocols briefly before continuing.

Mr Ross : If I could, here are some statistics of what we know about blood testing programs that have taken place in certain overseas jurisdictions. In the Ohio Valley in the United States, we understand that 69,030 people were blood tested. I understand they were tested for nine different PFCs. In Decatur, Alabama, 155 people were blood tested for PFC exposure. The Pease trade port in New Hampshire, to date, 1,874 people have been blood tested. East Metro Minnesota, 205 people blood tested. Arnsberg, Germany, 179 children aged five to six, 317 mothers aged 23 to 49, and 204 men. Lake Mohne, in Germany, 99 men and six women. Ronneby in Sweden—and this is a very interesting study—3,000-plus residents have been blood tested, in a town with a population of approximately 9,000 people. It is a few kilometres downstream of a Swedish air base with a very similar type of groundwater issue. In addition to the 3,000 that have been tested there is a representative sample of 113 residents from that town, aged four to 83, who from 2014 to 2015 were blood tested every three months, and from 2015 to date and ongoing are being blood tested every six months.

Mr Shannon : The second issue we would like to talk briefly about is the—

CHAIR: Sorry, just on that evidence there, you are saying that, clearly, when PFOS has been identified in groundwater or whatever there are blood tests going on worldwide.

Mr Ross : I am not aware of any jurisdiction where there has been a PFOS groundwater contamination event where there has not been blood testing.

CHAIR: Thank you.

Mr Shannon : By the authorities. The next thing we are concerned about is the emerging response of Defence. One of the things we submitted on was the need for public confidence in this process, and particularly for Defence to react in a way that instils public confidence—because we have seen this as a community issue requiring a community response. More and more we see Defence going to the trenches, so to speak. For instance, the people that it is appointing to interpret the data that it is gathering are people that we would expect a certain result from. Now, I am happy to go in confidence to expand upon that. We have real concern about the likely outcomes of the processes currently being undertaken. You know when a panel is independent. You know the people in whom the public have confidence. For instance, the chief scientist for New South Wales. For instance, the Independent Expert Scientific Committee established by the federal government in relation to the Windsor amendments to do with resource development. You know when the people you are dealing with are people you should deal with. There are plenty of people studying this material that could inform the community and in whom the community would have confidence. I would like to just hand up a bibliography, an extensive review of publications and people studying in the area—and people of undoubted renown—who might assist the committee. As I say, I am happy to expand in confidence, if required, now.

CHAIR: Mr Shannon, on that, we do have a full room at the moment. If you have in camera evidence like that perhaps you would like to put that as an in camera submission. That would probably be better for the conduct of today's hearings.

Mr Shannon : As in proceed now?

CHAIR: No, if you just put it in as an in camera written submission. Otherwise we have to throw everybody out of the room.

Mr Shannon : Okay, happy to do that or to provide it. It is more a case of—

CHAIR: We would like you to substantiate your comments in an in camera submission, if that makes it easier. Written.

Mr Shannon : In a written submission? Certainly. We will do that. As I say, I think it is really a case of the public buying the outcome. One of the things that we would like to see from the Senate is the recommendation of that oversight and access to information by that independent panel.

The other thing that I would just like to briefly touch upon is part of the reason for the confusion between the authorities. We all appreciate that this is an emerging issue and everyone is slowly becoming more and more aware of it, but it is like a lot of these scientific issues, where it starts and there is a bit of information and then it eventually becomes overwhelming. So far there is not much reassuring about what is coming out of those things in the bibliography. For instance, Defence still say this:

Long term, large scale health studies of workers in the USA exposed to high levels of these chemicals do not show chronic health effects.

When pressed on that and whether it be state or federal, we are referred to the studies done by 3M of its workers who were variously exposed to the chemicals. To us, and to anyone wanting confidence in the process, that is a little like relying on a tobacco company about its studies as to cigarette smoking. That is the sort of response that is coming through which concerns us about the independence, you might say. They say then:

Defence understands there are no specific health conditions which have been globally accepted to be directly caused by exposure to PFOS or PFOA.

I am reading from page 20 of their submission. That is the sort of stuff we are getting. You could not be more caged and careful in the wording of that.

But I go back to the Department of the Environment's submission, which is submission No. 114, which says this:

PFOS and PFOA pose a risk to the environment as these chemicals are persistent, bioaccumulative and toxic … This means that they persist in the environment for many years, become more concentrated over time and accumulate up the food chain, and are toxic to organisms in the environment.

It goes on to say:

Because they bioaccumulate over time and biomagnify through the food chain, small concentrations present in the environment can result in higher concentrations in organisms, especially meat eating organisms.

That is the Department of the Environment.

We go back to the 2003 internal report which initiated a lot of these studies, which is on Defence's own website, and it made this comment, on page 60:

… the AFFF product … has also been found to contain fluorosurfactants that are environmentally persistent, bioaccumulative and toxic to animals and humans.

Everyone agrees on that. It is just whether or not to then take it to a globally accepted, peer-reviewed direct causal connection. We can see we are going to the trenches. It is, 'Come and get us'; it is not, 'Here's a community problem; let's deal with this so everyone's got that confidence in the process.' We are also getting very inconsistent approaches by government departments. For instance, Defence says at paragraph 20 of its submission 87:

Defence understands that the primary pathway for ingestion of this product is through drinking water or eating food containing these chemicals.

When Dr Donaldson was here before, I have absolutely no doubt—and he may well have clarified it with the press already—what he was saying in respect of pathways was that there are pathways well beyond those which we know. Everyone accepts that drinking the water is a pathway and everyone accepts that eating food containing these chemicals is a pathway. As I say, that is from their own submission. Defence go on to say:

Primary producers have not been advised to stop using bore water to water vegetables or crops, or as drinking water for stock.

That is notwithstanding that, some paragraphs earlier, they are saying that exposure through eating products is an issue. So there is a fair bit of inconsistency there. Part of the reason people are confused is that Defence has maintained that position. We then get the New South Wales Department of Health saying:

Don't eat fish, prawns or oysters from the following areas—

and then they identify those with PFOAs contamination in relation to Williamtown.

Don't drink or prepare food with bore water from this area. It is safe to drink water from the reticulated water supply (town water).

Which is clear in Williamtown.

Don't eat eggs from your own back yard.

And:

Don't drink milk from cows or goats grazing in this area.

Even the Queensland Department of Health, in a brochure that was circulated for a while and does not appear to be easy to locate anymore, says:

There is no conclusive evidence at this stage which links exposure to these chemicals with long term adverse health effects in humans such as cancer.

It goes on to say:

It is safe to drink water from the town water and to consume commercial produce from the Oakey area.

So there is this continual inconsistency. That is understandable given the state of scientific evidence, you might say.

We readily accept that there is no magic bullet to answer all the questions; it is just the approach. We do not want Defence going to the trenches because then it is going to be played out in other jurisdictions, no doubt over many, many years. Likewise, the people of Oakey and those in the plume did not come out in public and announce it—it was Defence that came out and said, 'Your land is contaminated. We are doing investigations.' That is fine. Either they had cause to do it, or they did not. I suppose that they are damned if they do and damned if they do not, but, at the end of the day, it is their mess.

What is happening is that it is being passed on to those that have it without accepting responsibility and minimising that damage. Again, if you have got someone with a block of land half way to Dalby, they are not in the plume and you might hesitate about writing cheques or dealing with their anxiety and relieving that stress valve. But, if you are in the plume or clearly impacted, for God's sake, it is inescapable that you have got a problem. Why we muck around or try to tiptoe around it, I just do not know. Surely we can move the issue back to Defence, which is where it went. That is the only way you push it all back, because, at the moment, the people who wear the risk and the uncertainty, the people who have to make decisions—do I rent out that house, do I sell those cattle, do I eat my eggs—are the landowners. They are the people in the plume and the people who are impacted. It should be Defence wearing that.

CHAIR: At that point we will go to questions. There are many questions that I have having listened to the evidence in Williamtown and the evidence here, which are remarkably similar. There are concerned residents who, through no fault of their own, are facing an ongoing unknown health risk and an immediate loss of property value, and that is compounded in Williamtown by loss of income from business opportunities like fishing. Has there been any sign that Defence is prepared to address the immediate and more easily quantifiable damage caused? Is there a compensation process that is working, where people can decide, 'I no longer want to do this venture or live on this property. Defence has told me it's contaminated, now I am going to get them to compensate me and move on.' Is that happening?

Mr Shannon : No. We are having dialogue—and credit to the legal team at the Army, who have been very cooperative in meeting and coming up to Oakey et cetera—but time goes on. One of the big questions that sits in my mind is the relationship between Defence and 3M? Are Defence running out of time to pass the problem on to 3M? Did 3M give Defence guidance in relation to this? That is something that I would like to see your committee look at. We know from that 2003 report that there were 357,000 litres of this stuff still around as at that report. What has happened to that? There is a lot of inquiry there. Maybe Defence, if they are taking a legal strategy, are saying, 'If we're out of time with 3M, the longer we edge it out with the Oakey residents the better chance we have of saying, 'Sorry, you're out of time'.'

CHAIR: We understand there are about 16 properties or Defence facilities Australia-wide that may have an issue, so they are doing work on the quantification. To go back to Oakey, people have said, 'I just need some certainty. Is my property value destroyed? Who is going to make that good?' Have you, Shine Lawyers, put a position to Defence saying, 'To make good,' in terms of property, 'you need to do this'?

Mr Shannon : We put a proposal, very early on, of a protocol where we would have a valuer, a panel if need be, and a panel to determine merit et cetera. We would go to a valuer. They would be able to have legal assistance in that process so that we would avoid a court process, you might say. There was a bit of a nibble at that but it is not on the table, at the moment, as I understand it. They are saying, 'Tell us what your issues are.' They are waiting, I would expect, for the outcome of this and for others higher up to be making some decisions. No, there is no offer that we can do anything with. All we can do, at the moment, is talk.

CHAIR: At what level of Defence authority have you met with—deputy minister; assistant minister?

Mr Shannon : In the context of those legal conversations, the senior legal officer within Defence. Beyond that, no. He takes instructions, I think, from the minister or the deputy minister et cetera. I am not quite sure the way that works.

CHAIR: The Oakey situation has been around for a lot longer and has been more publicly visible than Williamtown, so what lessons should we take out of that? This is taking a long time, too long for the people concerned. That is abundantly clear by the contributions, here, today. So what can we do to speed it up, in terms of what could be quantified as damage—that is, property—and monitoring the ongoing health concerns?

Mr Shannon : One of the problems you immediately get is: who should be entitled to it? There are some where it is totally obvious and there are others where it is more remote. To me, the process is to set in place a protocol. When you say that Oakey is very public, it has not been. That is one of the problems for Oakey. Oakey is riding on the coat-tails of Williamtown, because Williamtown is where people live who vote in a way that influences things, frankly. Alternatively, the people of Oakey are traditionally stoic, conservative country people. They have not pushed, and but for this audience you probably would not have heard. We would like to see something in place and, as we proposed, alternative methods to deal with it.

CHAIR: You put up a protocol that would involve settlement without legal court cases. That has not been acted upon.

Mr Shannon : That is correct.

CHAIR: The second part is: there has been no counterproposal to that. Defence has not come up with another mechanism.

Mr Shannon : No. They have entertained the attraction of that process, at times, but nothing concrete has come of it. That is where it sits.

Senator BACK: I cannot recall, in Canberra, when you appeared, whether you discussed or put that protocol before the committee.

Mr Shannon : No, but in our submission, at the end of it, in bolded parts, we propose a pathway forward, along those lines.

Senator BACK: That is in this current—it must have been in your first submission. I did not read it, yesterday.

Mr Shannon : It was in our first submission.

Senator BACK: Mr Ross, thank you for the information you have given us on people who have been tested in various locations. Do you have any information for the committee on what conclusions have been drawn from that long list of people tested in different locations?

Mr Ross : The most significant one would be the Ohio Valley, which was part of the DuPont litigation and settlement process that led to the C8 panel study, whereby a panel of eminent epidemiologists—two from the United States and one from the UK—looked at all the data. They took several years, approximately six years or even longer, and looked at the questionnaire. There was an extraordinarily detailed health questionnaire that was administered to the population as well. We have a copy of that if it is of interest to you. It is called the Bruckmaier questionnaire. It is a very lengthy document. That was in addition to the blood testing. That panel came up with its conclusions that there was a probable link between what they referred to as C8 in the drinking water and six specific serious adverse health outcomes in humans.

In respect of the various others, I think the more significant one is probably the one from Ronneby in Sweden. It is still fairly early days. I think they began collecting the data in 2014 and I think there have been interim conclusions. We are in the process of making arrangements to try to get English language versions of their data and their conclusions, but it is still quite early days there.

Senator BACK: It simply begs the question: what do the test results tell us? We have obviously heard some very compelling evidence this morning. We heard some very interesting information, particularly from Dr Donaldson, whose own blood levels are at 20 nanograms. It begs the question of why they are. I did my best to study some of the references you gave us in point 85 of your submission, particularly the first one—the ATSDR toxic profiles study—and also the Michigan study. I will wait with keen interest to receive that information if and when you have it from the Sweden study.

Mr Shannon, you mentioned concern about public confidence in Defence. The Chair has invited you to give us some more information in confidence. It seems as though you are concerned about processes. Would you like to expand on where and how you think the processes should be improved and approached?

Mr Shannon : I would like to see Defence engage an independent panel to comment upon the data that it is collecting and what it is doing. As I understand it, at the moment Defence and basically everyone is being guided by the interpretation to be placed on that data by one person. That is the concern that we have. We think that a carefully selected panel is more likely to engender confidence. I suppose I am getting down to this: we all know that in any kind of major potential liability there is a tendency to go to horses for courses and/or to go to the trenches and have a different position. It has permeated the law for many years—to each go to an expert. Surprisingly, your experts wind up saying exactly what your case is. The courts have moved away from that.

Senator BACK: But we are talking about the Department of Defence and the Commonwealth government. We would expect our departments and our government to be exemplars in terms of how they respond to environmental concerns on behalf of all Australians for affected Australians. We are not in a truly adversarial position here, surely.

Mr Shannon : That is what I am saying, absolutely. I could not agree more. I mean, the Army and Defence are our collective fighting soul, you might say. You do not fight every time. There are times when you just say, 'I don't want to fight that person; I want to sort this out.' You go to an independent party; you do not pick your experts. That is my point.

Senator BACK: Thank you.

Mr Shannon : I do have one issue, if you do not mind. The Oakey abattoir has taken some umbrage at part of our submission. I have been made aware of that and I would like to respond to that briefly, if that is okay. In particular, I understand they have written to the committee and pointed out something we said in respect of Mr Hudson. We say in there that:

Mr Hudson formerly worked for many years at the Oakey abattoir. AECOM has recently indicated that two bores at the abattoir are contaminated with PFCs and that water from the bores has been used for various purposes at the abattoir such as cleaning carcasses. AECOM advise that PFOS has been detected in the waste water from the abattoir.

In response to that, the abattoir was concerned to make absolutely clear that Shine did not act for them. We do not. We are aware that they have other representation. They also say that that:

Mr Hudson's employment has no relevance to this investigations. During the course of his employment he had no knowledge of the water sources at Oakey—

I am afraid that I do think that all potential pathways are of relevance and should be considered.

Secondly, they suggest that our submission is incorrect and misleading because those bores were low-yielding bores, no water that has been tested to contain traces of PFOS and PFOA has been used in contact with carcasses, and they are concerned about that. We do not want to pick a fight with the Oakey abattoir, but, given that they have taken umbrage, I would just like to clarify where we got the information from—aside from the fact that, obviously, they were Mr Hudson's instructions. We took it directly from the AECOM PFC Background Review and Source Study, which was provided to Defence. It says these things:

Defence and Base personnel met with - Oakey Beef Exports Pty. Ltd personnel on 18 November 2014. During that meeting and subsequent emails and communications the following information was discussed/noted:

And amongst those points:

Groundwater has been extracted since operations commenced… In 2014 the Abattoir modified groundwater extraction operations, so that groundwater is no longer extracted from the two alluvial production bores.

The inference, therefore, being that it was being used up to that point. It says:

The groundwater extracted from the bores is used for a variety of purposes such as to fill up the biogas plant, clean the trucks, the cattle yards, the cattle carcass—

However, they did say this, and, in fairness, this is the extent to which I would correct the record—

(pre-hide removal only not the exposed meat).

We did not say that in the submission. I apologise to the abattoir, but certainly it is technically correct. For fear of doing exactly what I am suggesting others doing, I readily acknowledge that it said that the cattle carcass was in respect of pre-hide removal only. It does say within that same report that:

PFOS was detected in the Abattoir dam and from the drainage line discharging from the Abattoir site… The Abattoir has a wastewater treatment system which may have come into contact with PFC impacted borewater.

When you look at the plume, the black circle here are the three bores, but two in particular are the orange and the yellow. The yellow bore would be up to 0.2. The orange one is anywhere from 0.9 to 9.9, so we do not know from that. All we know is that the abattoir used the water and one of those bores was potentially very highly contaminated. It is simply a line of inquiry.

CHAIR: Let me try to put that in context: you received correspondence from the abattoir as a result of your published submission?

Mr Shannon : Your committee has.

CHAIR: My committee has.

Mr Shannon : And they wanted us to correct the record. We correct the record to that extent.

CHAIR: Thank you for your appearance here this morning. We will now take a lunch break.

Proceedings suspended from 12:08 to 13 : 03