The Department of Defence will reject allegations it breached federal environmental legislation and its duty of care to residents around the Williamtown RAAF base by polluting land with toxic firefighting chemicals, the Federal Court of Australia has been told.
The 42-page defence - lodged last week and obtained by the Newcastle Herald - also indicates the Department may be prepared to take the case to trial, after international law firm Dentons launched a class action against it on behalf of affected residents and business owners.
Justice Jayne Jagot ordered both parties to look at an out-of-court mediation when the matter first went before court in November.
The outcome is expected to be closely watched by communities across the country where contamination from the perfluoroalkyl (PFAS) chemicals – historically used in firefighting foam – has been discovered.
A type of Aqueous Film Forming Foam (AFFF) called ‘Light Water’, manufactured by US company 3M, was used at the base in Williamtown from the 1970s.
According to a statement of claim, the case against Defence will focus on its use of the foam between 1996 and at least January 2011, even though a "foreseeable risk of harm" to residents allegedly became apparent during that period.
It will also be alleged that Defence allowed the product and its residue to be discharged into the stormwater drainage system over that time.
In its response, Defence said the product was a “highly effective” operational requirement that protected life and equipment. While the foam was used in its fire trucks until approximately 2004, and hangars until approximately 2011, it said it took steps to “store, collect, contain and dispose” of the foam and wastewater.
That included authorising an upgrade of facilities where foam was used across the Defence estate in 2003.
However lawyers for the members of the class action alleged the chemicals had ended up on residents’ land as a result of a “deliberate course of action” taken by Defence, causing a “substantial interference” with the use and enjoyment of their properties.
The substantial interference “has still not been abated and ...is continuing and is likely to continue for an unknown but significant period of time,” they wrote.
The lead applicants – Gavin and Kim Smith of Nelson Bay Road, Salt Ash – had purchased their land with “a view to living semi-sustainably” but had been advised not to eat the eggs from their backyard chickens, consume fruit from trees on the land or to use their bore water.
It was further alleged they had suffered a loss in their property’s value, along with “inconvenience, stress and vexation” and no longer had the ability to buy a property in a different area and "obtain the benefit of increases in [its]...market value.”
Business owners and commercial fishermen were owed compensation for the loss of past and future profits, a decline in the goodwill component of their businesses and the inconvenience, distress and vexation caused, it was alleged.
Commercial fisherman were unable to work in Fullerton Cove or Tilligerry Creek for 12 months from September 2015, and remain unable to fish for dusky flathead in affected waterways.
It will be argued Defence breached a duty of care in ensuring its activities at the base did not cause damage to nearby residential properties.
Residents and businesses were in a “position of vulnerability” because they did not know about the use of the foam and had no control over it, the statement of claim said. It was further argued a reasonable person would have immediately notified the general public if they became aware about a risk to human health.
“Had the respondent [Defence] notified the general public once it became aware of the risk of harm, Gavin Smith would not have purchased the land,” the statement of claim said.
But Defence lawyers denied the allegations and pointed out that the concentration of the firefighting chemical detected in the Smith’s bore water – known as perfluorooctane sulfonate, or PFOS – was .28 micrograms per litre. That reading was within the safe levels for drinking water set by EnHealth last year.
The Smiths are seeking aggravated and exemplary damages.
According to the Australian Law Reform Commission, aggravated damages relate to the nature of the defendant’s conduct in the commission of a wrong, and exemplary damages are intended to punish a defendant and deter similar conduct.
In the statement of claim, Defence was also accused of breaching a key piece of federal environmental legislation, the Environment Protection and Biodiversity Conservation Act (1999).
Under the act, it is an offence for a person to take an action on Commonwealth land if it has, will have or is likely to have a significant impact on the environment.
Defence denied breaching the act, which it said “relevantly” came into effect on July 16, 2000.
“[It] can create no liability for action taken prior to that date,” it wrote.
It said allegations that it permitted the foam or residue to be discharged from the base did not amount to what would be considered an “action” under the act.
The residents’ arguments will hinge on a number of documents addressing potential risks from the chemicals that Defence was either aware of, or “ought to have been” aware of, the earliest of which being a journal article published on firefighting foams in 1996.
The case would also rely on a media release from 3M announcing the phase-out of the foam in 2000 and a Defence-commissioned report produced in 2003.
But Defence lawyers stated at least one of the documents tendered – an OECD risk assessment carried out in 2002 – would also be used to support their case at trial.
The 1996 journal article dealt with chemicals that were “not related” to PFAS, they said, and the 2003 Defence report was not “correct in all its particulars.”
The matter will return to court in April.