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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

GARDNER, Dr Ian, Principal Medical Adviser, Department of Veteran Affairs; and Specialist Consultant to the Secretary, Department of Defence

GRZESKOWIAK, Mr Steven, Deputy Secretary, Estate and Infrastructure, Department of Defence

HANNON, Ms Stacey, Director, Perfluorinated Compounds Environmental Management Program, Department of Defence

LYSEWYCZ, Mr Michael, Defence Special Counsel, Defence Legal, Department of Defence

[14:16]

CHAIR: We now welcome officers from the Department of Defence. I remind the witnesses that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and should be given reasonable opportunity to refer questions asked to the officers to superior officers or to a minister. This resolution prohibits any questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. I particularly draw the attention of officers to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised. Would you like to make a brief opening statement before we go to questions?

Mr Grzeskowiak : Thank you. I will make a brief opening statement. Firstly, I would just like to acknowledge the ongoing cooperation we have had from the local community here in Oakey, and acknowledge that we have been here today and we have heard the evidence, particularly the evidence given by those members of the community that were courageous enough to come to this table and tell you their stories. That is why we are here, to listen to that evidence and absolutely take that on-board. I acknowledge that there are people here who are worried about potential health outcomes, worried about effects on their business, worried about effects on property values. We are working to try to understand the issue that we have before us. For the record, Defence does not walk away from its responsibilities in dealing with this issue.

As you have heard, we are dealing with an emerging and global issue. We have a couple of areas that we are deeply engaged in at the moment, here at Oakey and elsewhere at Williamtown. We are undertaking studies and work to understand the behaviour of these chemicals in the environment and how they move, and we are undertaking studies to try to understand what the human health risks might be. We are using expert consultants to do that work because Defence is not an expert in health issues in particular.

CHAIR: Thank you, Mr Grzeskowiak. If I could just start with a simple issue that was put up in evidence about a protocol, whereby, without extensive legal proceedings, people could get back the value of their properties and move on with their lives. Is that something that you have ruled out, considered or not considered?

Mr Grzeskowiak : You would be aware that, as part of the report you presented around four weeks ago, one of the recommendations in that report was that Defence should engage in a process of offering to buy people's properties. We are providing advice to the Minister for Defence for all the recommendations, that one included. There will be a response from government shortly to that recommendation in your previous report.

CHAIR: I do not suppose you have a definition of 'shortly'?

Mr Grzeskowiak : I am not able to comment on when the government may choose to release its decision or response to that recommendation.

CHAIR: This was very specifically in relation to Oakey, which has probably been an ongoing situation. When you really distil it down, there is probably one less element to the situation here, and that is that there is less loss of income and there is more loss of property. There was a distinct proposition put in evidence that there was a protocol put to Defence. Did you receive a protocol, and did you rule it out previously?

Mr Lysewycz : Yes, we did receive the protocol. We have discussed it with the lawyers who promoted it, and it has not been put into effect. As Mr Grzeskowiak mentioned, that is a matter for government.

CHAIR: What was the time frame of this protocol being discussed? When was it put to you and when was it decided not to progress with it?

Mr Lysewycz : I would have to go back and check the record on that.

CHAIR: Feel free to take it on notice. An important part of our deliberations is to know how people are being satisfied in this unfortunate set of circumstances. We heard evidence prior to you appearing before the committee about the excellent work you did, which may have been super-excellent, if you like, if it asked another couple of questions. Was that work not done or were the questions not asked?

Mr Grzeskowiak : If I heard that correctly, that was in reference to the blood samples that were taken and the analysis done at Defence's expense. In that process, there was not an extensive human health risk assessment process undertaken. I do not think we questioned people about what they eat or drink, or where they have lived over their lives, to look for other routes of exposure. It was simply a question of responding to a community need for some tests to be done. The people who had their blood tested obviously got the results of that. Defence does not have those individual results for individual people, for privacy reasons. We have a set of de-identified results. We do not know which people had which results, because those tests were not done for the purposes of informing us or as a detailed health assessment study.

Senator BACK: So some or all of those people could choose, if they wanted to, to identify themselves and then be able to provide the information about their levels of exposure? That would be possible but not something that Defence would do?

Mr Grzeskowiak : That is exactly right. If people wanted to let it be known to us who had which levels, then we could have a look at that, but for privacy reasons—

Senator BACK: Or the Queensland Department of Health could.

Mr Grzeskowiak : Or the Queensland Department of Health could, yes.

CHAIR: With hindsight, would you have asked the questions that Queensland Health were looking for?

Mr Grzeskowiak : In hindsight, I think that may have been useful.

Dr Gardner : To make an explanatory comment, as you heard this morning from Dr Donaldson, this started out as an initial request from him to Defence through me for us to consider funding a small series of blood tests on the people whom he was providing clinical advice to in and around his property. Subsequently, in discussion with Defence legal and Shine Lawyers, and after a lengthy period within Defence to get approval to undertake this testing—which had never been done before by Defence—we agreed to expand the cohort to about 75 people. These were from a defined population of people living in the contamination zone who had had bores tested and were positive for these chemicals, and who declared that they had drank bore water within the last three years. This was a very targeted selection. There was also a small catch-all provision for other people on a special individual exception. You heard evidence today of small children on whom we have done those tests as an extra. We had 75 tests done, including 69 originals, and some have been tested twice because they were done privately under a separate program.

Our concern, though, was that, if this was going to be done and people did want it to be independent and external and secret from Defence, we would pay for it. It was done through Entox. As Mr Grzeskowiak said, we got the de-identified group data back, and Entox provided the appropriate letters to advise the people what their levels were and what, if anything, this meant.

CHAIR: It appears, if someone were to read Hansard or listen to the evidence taken about Williamtown and here, that at least some of the people making submissions would characterise Defence's position as less than cooperative. What do you say in respect to that, Mr Grzeskowiak?

Mr Grzeskowiak : It was interesting to hear that this morning. I detected an undertone there that people think Defence might be surreptitiously progressing this issue—in other words, in some way not revealing everything that is going on. I am not saying we are perfect in terms of the way we have engaged with the community. We have held seven separate community engagements over the last few years. The last one of those was a couple of weeks ago. We did letterbox drops earlier in the piece. We had information up on a website when the study a couple of years ago was done. That was the first study we did and we made the results of that study available. They are on our website, freely available, and the studies that we are doing at the moment will be made available when they are finished. We made that information available to the Queensland government authorities who we have developed a productive working relationship with.

We have nothing to hide here. We are trying to understand the nature of the contamination. We are researching, at the moment, remediation options. As has been said, early we provided drinking water and we continue to provide drinking water for people who have bores where contamination has been found and who rely on those bores for domestic purposes. We are progressing. Our latest study at the moment, which will mature around August this year, is another range of samples as well, including samples of biota. We are going to be sampling crops, blood samples from animals and milk samples from animals.

That work has been now agreed. We have consulted with Queensland authorities on the content of that work and the sampling starts next month. That will inform the human health risk assessment. We will be interviewing a range of people and that is where you do start asking the questions around have you been drinking water, do you drink milk from local cattle, or whatever the questions are. We would be very pleased in that process to be talking to people who have had their blood tested from our previous tests and who, therefore, know what their results are. If they are willing to, that can be factored into that analysis.

But these things take time. We use expert consultants and we only use people who have a national accreditation either in a testing laboratory, companies like ENTOX, or in terms of the environmental health experts that we use. We have all of our results peer reviewed by third parties. We do not rely just on one toxicologist. There is a range of people who are involved in this. If there were to be, for example, an expert panel established here by the Queensland government, as the New South Wales government has done, we would have no problem at all with full exposure of everything we have done into an expert panel for another peer review. We would have no problem at all.

As well as that, we have been investigating remediation options and techniques. Within in about four weeks, we will start doing testing trials on the ground on the base at Oakey of a couple of techniques for remediating the soils there of the contamination that we know exists there. We have researched globally looking for techniques. We are talking to the Americans who have some promising techniques. We are talking to companies like CRC Care and other experts in Australia. We probably have about four or five different potential options that we are looking at and we will be starting trials on the base here, certainly, next month.

CHAIR: When this was first announced to people who were effected, is it is true that your representatives said, 'Your bores may well be contaminated, don't drink the water. This could be the new asbestos'?

Mr Grzeskowiak : Regrettably that is true.

CHAIR: What land was that person living in that they did not think through those statements and the effect that they would have? We took evidence this morning from an 80-year-old horse trainer who says, 'I'm still kicking, but you destroyed my land. You destroyed my business. You destroyed my property.'

Mr Grzeskowiak : On the record, I can apologise for somebody from Defence saying that in the first community meeting that we had here. It certainly did not represent any official view from the department. It was an inappropriate thing to have said and it is not what we believe to be the case about the potential health effects of these chemicals at the levels that we are talking about. We have heard evidence here today that tells us that science really has not landed yet as to what the actual health effects of these chemicals will be, so that was an inappropriate statement to make.

CHAIR: I think the impact of those statements has landed when people look at their ability to dispose of their property. It is now 2016 and I think the evidence was that this has been around since 2012. If someone says, 'I've had enough, I want to put my property on the market and I want to move to somewhere without this contaminant,' what would be the process? Could they have a fire sale and be able to come to Defence for compensation, or will they just have to cut their losses and walk away?

Mr Grzeskowiak : There is no formal process especially for that scenario, but, through Michael Lysewycz, my legal colleague, we are already talking to some people in the community who have expressed a view that they may seek to recover costs from the department. We are always keen to talk to people who are in trouble in that regard and I cannot rule in or rule out what the conclusion of those conversations might be.

CHAIR: So there is an avenue there? There was a door open?

Mr Grzeskowiak : There is a door open, yes.

CHAIR: Do we know the extent of the number of properties that would, in Defence's view, be underneath or above this plume?

Mr Grzeskowiak : I do not know the number of properties that might be on top of where the underground contamination is. We have a map of the plume as it stood around August last year. The work that we are doing now seeks to understand where that plume now is, and I do not have those sorts of figures.

CHAIR: Is it hundreds of properties?

Mr Grzeskowiak : It may well be.

Senator BACK: Dr Gardner, you have previously advised this committee that Defence is not aware of any globally accepted, peer reviewed international or national health studies that show any adverse chronic human health effects that are causally related to exposure to legacy aqueous firefighting products. Subsequent to you giving that evidence, have you any occasion to change that position?

Dr Gardner : No. Basically, I believe that is still a statement of truth. However, I do acknowledge that there are small-scale studies that have slightly different outcomes, and it is really a matter of 'watch this space'. As I think I mentioned at a previous estimates hearing, the International Agency for Research on Cancer in 2014 reviewed the evidence in relation to PFOA. They have given it a rating of class 2B, which means a possible human carcinogen. That is the second lowest level of evidence available. They do not have a finding at this stage on PFOS. So the short answer is: I am not aware of anything new other than some small-scale studies.

If I have a chance later, I would like to correct a couple of incorrect things that were given evidence this morning and are somewhat misleading.

Senator BACK: With the chair's concurrence, you might as well do that now so that I can continue my questions.

Dr Gardner : Thank you, Chair. The first I would like to mention is a comment from a former ADF member in relation to an approach to my current employer, the Department of Veterans' Affairs, and being 'told to pull his head in'. The Veterans' Affairs position in this is that, if a current or former serving member has a diagnosed health condition which they believe is service related, they are encouraged to put in a claim and have it tested by DVA. No-one should ever be told, 'Pull your head in.' DVA's policy position is that this is primarily a Defence issue but, in time, it will be become an issue for DVA.

Senator BACK: While you are on that, the gentleman in question called for the establishment of a register for—

Dr Gardner : That is my second comment.

Senator BACK: Okay, you can respond to that.

Dr Gardner : The second comment was in relation to a register. In fact, Defence has had a register available for more than 30 years. It started out following the Enfield inquiry into asbestos in 1982, I believe. This was a facility for people to ring in and record their exposures, in this case, to asbestos as a result of Defence activities. It was primarily for current and former serving members but, in fact, it can be for anyone who has been exposed to hazards arising from Defence. In recent years that has been extended to cover a whole range of things, including range fuels, benzene—you name it, even PFOS and PFOA. That number is 1800 DEFENCE. It is available nationally and it is answered through our call centre in Cooma. It is self-reported. It is not verified. We do not require them to prove it. It is one of the things that we can put on the register and, if we have information on that exposure, we mail it out to them with the information that we have, usually data sheets and fact sheets on those issues. It has gone through a variety of name changes and is currently called the Defence Exposure Evaluation Scheme, because it is broader than just asbestos. That system has been around for 30 years. So that is the second thing I wanted to comment on.

The third is that you might recall Shine Lawyers made a reference. Mr Ross made a reference to bile sequestration. Bile sequestration is a technique for binding up some of the bile acids in the gut to stop the reabsorption of chemicals that naturally go through an absorption, excretion and reabsorption cycle, both in the gut and in the kidneys. Mr Ross mentioned bile sequestration because earlier I had given advice that there was basically no quality material anywhere in the world that could speed the excretion of this. I would point out that the bile sequestration study from Canada, which he quoted, involved eight people. This is hardly something that I would hang my toxicological or medical specialist's hat on. I am not saying that it is lousy, but it is very indicative. There are other things that have been around for a long time including clays, zeolites, algae, various vegetable fibres and a whole range of things that can do it, but whether they have any practical use, which is what Professor Mueller referred to in his testimony, is what I have problems with.

The final thing is in relation to the issues of how long can it take to get out. I think Professor Mueller, partly, did not understand the question. As I heard it from the front row, the question was: can you do anything to get these chemicals out of your system? His advice, basically, was, no, and that you have to wait for time and no further exposure. That is true but, of course, the other thing is, as Dr Young said in her previous testimony, depending on which study you look at, somewhere between two years and nine years is the half-life of this stuff with the average around five years. So in five years you will be down to half the level you are today—

Senator BACK: That is without further contamination.

Dr Gardner : Yes.

Senator BACK: Thank you. I want to take you back to PFOA, following your answer to my earlier question. It was in October last year, at a meeting of the UN POPs Review committee, that members concluded that PFOA met all the criteria for further evaluation as a persistent organic pollutant and, as we know, that starts its journey to global elimination. If I am correct, I understand that they, in a consensus decision, agreed that PFOA causes kidney and testicular cancer, disruption of the thyroid function and endocrine disruption in women. In addition, they concluded that it was highly persistent and does not undergo degradation under environmental conditions. Let me take you to that statement and ask you whether you agree with the statement and the consensus decision of the experts that it causes those pathologies?

Dr Gardner : Thank you for the question. No, I do not agree with that statement. I have drawn Defence's attention to that matter, as has my professional colleague, Dr Mathew Klein.

We have obtained the original source documents from that committee decision and also a trade journal reporting of who said what and when. The committee did agree that PFOA met the requirements for listing, and therefore further evaluation, but it was not a consensus decision that said, 'and we agree that it causes all these things'. So it is partly correct but substantially wrong. In the advice I have given to Defence with my colleague Dr Klein, we have asked that that be brought to the committee's attention, because the quote in your report comes straight out of the National Toxics Network submission—No. 29 from memory—where I believe they have incorrectly quoted the document—which your committee has, in honesty, just picked up by mistake.

Senator BACK: It is not related to Oakey but if I can just go to Newcastle for a moment, concern was expressed at our hearing in Newcastle in December about the provision of potable water and the disposal of water bottles. Can you please update the committee on where Defence is at, and what action it is taking, with regard to that question of safe drinking water, please?

Mr Grzeskowiak : We have certainly had a look at that. We have put in place a process now, for making sure we collect any bottles that are no longer required, and we are confident that we are now meeting people's needs for the delivery of water in the Newcastle area. If anybody has a problem, they know the phone numbers to ring to get immediate help.

Senator BACK: Thank you. Following earlier evidence to the chair, can you please provide us with an update on the next tranche of environmental investigations being undertaken or to be undertaken at Category One defence sites, of which Oakey would be one? And what will be your engagement with this community, please?

Mr Grzeskowiak : Williamtown and Oakey are sites that we are already engaged in—we are already conducting detailed evaluations. The reference to the further 16 sites concerns 16 other places so, if you include Oakey and Williamtown, that is a total of 18. Within the 16 new places we are looking at, we have prioritised three—as the next three places we will look—and analysis will commence in those sites in April; possibly by the end of March, but certainly in April. There will be a relatively detailed analysis first-up. The important point about the analysis is that we are going to look outside the bases first—whereas if we go back in time to how we looked at Oakey, we started looking inside the base and eventually went outside. We have now decided that, so that communities in those other bases can quickly learn what we discover, we are going straight outside the base. So as we get results coming in, they will be made available to those people. We will be looking to test people's bores, or if there is surface water; that sort of thing. That will give us a quick feel for whether or not there is an issue at these various sites. Obviously, if we do not find anything then that will be good news, and we will focus our attentions in other places where maybe we will find things.

CHAIR: We have seen what I would characterise as quite different responses from New South Wales state departments and Queensland state departments. Why is that, in your view?

Mr Grzeskowiak : It is difficult for me to get a view. Obviously, I do not understand the inner workings of the various state and territory environmental protection agencies or health departments. We are actually working now with all of the environmental protection agencies from all of the states and territories, with the exception of Tasmania, because we do not think we have got an issue in Tasmania at all. We are engaging with the various health departments as well. We are finding there are differences in approach between the different entities—and I guess you would expect that, because they are independent statutory authorities in their own right and in their own state. We are aware particularly that the heads of the environmental protection agencies do meet fairly regularly, and clearly this issue is one of the issues that is on their agenda at the moment.

It may be that those conversations that are ongoing lead to a consensus view about how these issues should be dealt with going forward.

CHAIR: We have taken evidence that defence may be taking an adversarial stance and going to a commercial litigant's view that you just get your expert to say X and another one to say Y. What do you say to those?

Mr Grzeskowiak : I disagree completely with that. We are trying to understand something that we do not think anybody in the world understands at the moment. We are at the leading edge, globally, of the studies that we are doing at the moment. In fact, the study we are doing at Williamtown, which is slightly ahead of the study here, is one of the biggest studies that we can find that has been done, certainly the biggest in Australia, in terms of flora, fauna, biota and the like.

We just want to understand the issue. We are not picking and choosing experts who come up with a particular view. As we do in New South Wales, all of our work is independently reviewed by the expert panel. We are happy to submit any of our work to an expert panel or that type of process if a local government authority wants to establish one.

CHAIR: I accept what you are saying in respect to the leading edge of the health issues arising out of contamination, but there are other sides to this argument, particularly in Oakey, which is that it all goes back to immediate damage to people's assets and property values. Whilst you say there are a number of people dealing with you privately, you are no further advanced. It has to be a decision of government whether you actually step up and offer compensation.

Mr Grzeskowiak : It is a difficult issue and, if government were to establish a specific scheme to address that issue, it would be a decision for government. As I said earlier, our legal team are talking to some people and there are avenues available for people to make a claim against the department. We always treat those, following the government's legal service directions, that require us to act as a model litigant. It is not an area I am an expert in but it is difficult to understand what the real loss would be in a particular property situation depending on circumstance.

CHAIR: There are probably plenty of examples where the Commonwealth government takes over land for rail, airport or road. There is probably acceptance of government decisions which sometimes casts a shadow over people's property values, and there is probably a very well established process for dealing with that. Is that not something defence is aware of?

Mr Grzeskowiak : You might be referring to our compulsory acquisition and issues where there is an established process. I will just ask Michael Lysewycz to answer that.

Mr Lysewycz : We are probably more experienced with that proactive acquisition of property for Commonwealth purposes, often aligned to some sort of approved capital project, but this is quite different to that. It does not fit within the mechanisms that have been established within the Department of Finance.

CHAIR: There would have to be a separate mechanism, legislatively, to deal with this issue?

Mr Lysewycz : Whether it is legislative or an executive scheme, it is really a matter for government. It is certainly on the agenda of the circle that I am talking to in Canberra.

CHAIR: If it came about that you examine 16 facilities and you had a problem with three, which required remediation, ongoing health monitoring and resumption of properties, that would just be an executive decision and expressed that way? It would not require legislation? How would you actually do it?

Mr Lysewycz : I am not sure. That is one of the reasons we are engaging at a high level in Canberra. Following the Williams decisions of recent years in the High Court, the exercise of executive power is under a little bit more scrutiny. I would not say it has been circumscribed but it has to be to within a particular way. That is what we are looking at.

CHAIR: Clearly, at both Williamtown and here at Oakey there is no backing away by defence from their acceptance of the source of the contamination.

It is just a question of how you deal properly with the ongoing health implications and/or loss of income in Williamtown.

Mr Grzeskowiak : We absolutely do not back away from the fact that what we have here is a legacy contaminant that was put into the ground at Oakey and Williamtown through the use of AFFF up to around about 2004 or 2005, when we stopped training with this material. We are aware that there is a range of other sources of these chemicals both in an industrial sense and in a domestic sense. We are looking at remediation options for how we can prevent further movement of these chemicals from the high-concentration areas in the ground where they are out into aquifers, particularly. The techniques we are looking at are all in the trail and evaluation phase. I do not think there is one answer to the problem, but there is a range of options and we are now starting to trial those options on the ground. In about a month's time we should start here.

CHAIR: And obviously Defence is committed to an ongoing process of consultation with the local community.

Mr Grzeskowiak : Yes, we are. The last community consultation we had two weeks ago was quite successful. It was differently structured to the previous ones; it was more of a community drop-in rather than a big presentation. We are very interested in getting feedback from the community on how we can improve in the way we consult with the community. We will try to meet expectations where we can.

CHAIR: Thank you very much for appearing today. If you have taken any question on notice the committee asks that the answers be returned by Thursday, 24 March 2016. I will now close this public hearing. On behalf of the committee I thank all of the witnesses and members of the community who have appeared here today.

Committee adjourned at 14 : 51