Yesterday, California Governor Gavin Newson signed into law SB-1044 (Firefighting Equipment and Foam: PFAS Chemicals). The bill is in essence a PFAS firefighting foam ban and many environmentalists are heralding the bill as strong step forward in eliminating firefighting foams (also known as aqueous film forming foam – AFFF) as a significant source of PFAS contamination in drinking water. The law bans the manufacture, sale and use of PFAS firefighting foam in most applications starting on January 1, 2022, including training classes.
Under the terms of the bill, California will be required to track any sales of PFAS firefighting foam and develop ways to keep the public informed of the ban terms. One way that the bill further ensures that PFAS firefighting foam will not find its way into waterways is by restricting the disposal of any unused PFAS firefighting foam. Violations of any of these terms are subject to civil penalties of up to $5,000 for a first violation and $10,000 for each subsequent violation.
In addition to the PFAS firefighting foam ban, the bill also requires manufacturers of firefighting protective gear to provide a written notice to the buyer at the time of sale that informs the buyer as to whether any PFAS were “intentionally added” to the protective gear. This term is of particular noteworthiness, as California becomes the first state in the nation to enact a law that specifically addresses PFAS in firefighting protective gear. Legislatures in Connecticut, Illinois, Iowa, North Carolina and Vermont are also considering similar bans, but have not yet passed legislation on this issue. The firefighting protective gear debate received increased attention recently when a study was published by a lead scientist out of the University of Notre Dame (“Another Pathway for Firefighter Exposure to Per- and Polyfluoroalkyl Substances: Firefighter Textiles”, Environ. Sci. Technol. Lett. 2020 (Graham, Peaslee F., et al.), which demonstrated that levels of PFAS were found in the inner barriers of firefighting equipment. The findings suggested that PFAS could infiltrate the turnout gear that firefighters typically wear when responding to fires, which could ultimate lead to direct contact with the skin of firefighters. While the study was one of the first of its kind, it was careful to point out that further studies on this subject are needed.
One of the driving forces behind the support for the PFAS firefighting foam and equipment bill is the fact that viable non-PFAS alternatives to AFFF are already on the market. As of April 2019, it was reported that there were more than 100 fluorine-free foams available from 24 manufacturers. These fluorine-free foams meet internationally accepted certifications and approvals, including the International Civil Aviation Organization Level B, an internal oil industry standard known as LASTFIRE, and the International Maritime Organization MSC.1/Circ. 1312. Despite the availability of alternatives, some states are not waiting for industry to change their product composition and are instead enacting PFAS firefighting foam bans similar to California. Colorado, New Hampshire, New York and Washington have also passed legislation that is equivalent to California’s PFAS firefighting foam ban.
Manufacturers and distributors of firefighting foams and PPE, as well as townships, cities, and municipalities that have fire departments, need to pay close attention to these developments and the follow up studies that are sure to come. While many are searching for AFFF products that have PFAS substitutes due to the studies and press surrounding this product, it is doubtful that any entity has yet considered finding replacements for firefighting PPE. Prudent risk management would advise that, at this point, at the very least this subject be closely watched by all those affected.
©2020 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume X, Number 274