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33 states have either enacted or proposed regulations regarding per- or polyfluoroalkyl substances (“PFAS”) present in Class B Aqueous Film-Forming Foams (“AFFF”) used for firefighting, or present in firefighters’ clothing and equipment.  These regulations typically involve restrictions in four general areas: 

  1. Discharge or Use Restrictions. These regulations usually limit or prohibit the use of AFFF in training or testing exercises, and only allow the use of AFFF in active firefighting situations;
  2. Disposal, Storage, Inventory or “Take-back” Provisions. Some states have enacted state run programs to purchase and dispose of AFFF, usually purchasing supplies from government agencies;
  3. Notification or Reporting Requirements. When continued use of AFFF is allowed, some states have required that businesses report specific details regarding their discharge; and
  4. Limitations on Personal Protective Equipment (“PPE”). Some states have limited or prohibited PPE for firefighters that contain PFAS materials. 

Background

The specific regulations are described in the chart below, but the following is an overview of the potential risks that businesses may encounter as a result of AFFF use or storage.

  • Investigation and Remediation. Businesses that own(ed) or operate(d) property where AFFF was historically used, stored, or disposed of may be the focus of investigation and remediation actions based upon PFAS impacts to drinking water, groundwater, and other media, as well as municipal systems like sewers and water treatment plants. 
  • Impacted Industries. To date, airports have been the primary focus of investigations by regulatory agencies, usually focusing upon impacts to drinking water wells and groundwater supplies on or adjacent to the property.  If your business is involved in aviation, it may be advisable to review your company’s current or historic use of AFFF.  Other impacted industries include the oil and gas sector, marine facilities, mining, and certain types of industrial facilities.
  • Regulatory Compliance. Some AFFF regulations impose use restrictions and reporting requirements for businesses that choose to continue to use AFFF.  Failure to comply with those requirements creates additional regulatory enforcement risk.   
  • Litigation. Certain states, cities, and individual plaintiffs have filed suits based on impacts from AFFF, usually targeting the manufacturers of these chemicals.  Although PFAS manufacturers have been the primary focus so far, businesses that stored, used, or disposed of the chemicals are expected to be the target of future litigation.

While there are many technical AFFF resources available, the materials available on the Interstate Technology Regulatory Council website are particularly helpful.  Additionally, Illinois, Michigan, New Hampshire, and New York have provided helpful information about AFFF that may assist interested parties both in those states and elsewhere.

National Defense Authorization Act

On December 20, 2019, Congress passed the National Defense Authorization Act (“NDAA”).  This lengthy law phases out the use of AFFF, subject to some limited exceptions, at all military sites by October 1, 2024.  In the meantime, the NDAA forbids training exercises which cause any AFFF releases. 

Importantly, the provisions of the NDAA only apply to military facilities on property owned by the federal government, and do not apply to any civilian facilities.  However, defense contractors should be aware of the provisions of the NDAA both for planning and risk mitigation purposes.

Individual State Regulations and Bills

A map showing the states that have enacted or proposed regulations regarding AFFF is below, along with a detailed chart providing more information on the specific provisions of those regulations.  Because the regulation of AFFF is developing rapidly, it is important to note that this client alert reflects the status of state regulations in AFFF as of January 24, 2022

State

Product Categories

Regulatory Status

Reference

Alaska

Reporting:  Immediately report discharges of AFFF as certain PFAS materials are defined as hazardous substances. 

Enacted

Reporting discharges in regions pursuant to 18 AAC 75

Use and Take-back Provisions:  Permitted use of PFAS substance in certain situations and accepting disposal for a PFAS firefighting substance not to exceed 25 gallons each year.

Proposed

SB 121

Arizona

Discharge and Use:  Beginning on January 1, 2020, a person, local government or state agency may not discharge or use AFFF for training or testing purposes, unless the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent releases to the environment.

Enacted

Ariz. Rev. Stat.  36-1696

Arkansas

Discharge and Use:  Beginning on January 1, 2022, a person, local government, or state agency shall not discharge AFFF for training or testing purposes, unless the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent releases to the environment.

Enacted

HB 1351

California

Discharge and Use:   Beginning on January 1, 2022, manufacturers of AFFF are prohibited from selling or distributing AFFF.  Discharges or uses of AFFF for training purposes are also prohibited.

Enacted

SB 1044

Reporting:  Entities that use AFFF shall report their use to the State Fire Marshal within five business days.

Enacted

SB 1044

Notification:  Beginning on July 1, 2021, a manufacturer of AFFF shall provide written notification to persons that sell the manufacturer’s products.  For products sold after July 1, 2021, a manufacturer shall provide written notification on or before December 31, 2021.

Enacted

SB 1044

PPE:  Beginning on January 1, 2022, a person, including a manufacturer, that sells PPE must provide written notification to the purchaser at the time of sale if the PPE contains PFAS substances.

Enacted

SB 1044

Colorado

Discharge and Use:  Beginning on August 2, 2019, a person or fire department may not discharge or use any AFFF for training or testing purposes, subject to certain exceptions.  Also, beginning on August 2, 2021, a manufacturer may not sell or distribute any AFFF that contains PFAS substances, subject to certain exceptions. 

Enacted

CRS 24-33.5-1234 and CRS 25-5-1303

Notification:  A manufacturer of AFFF must provide written notification to persons whom sell the products prior to August 2, 2020.

Enacted

CRS-25-5-1304

PPE:  Beginning on August 2, 2019, a person, including a manufacturer, that sells PPE must provide written notification to the purchaser at the time of sale if the PPE contains PFAS substances.

Enacted

CRS 25-5-1305

Take-back Program:  The Department of Public Health and the Environment shall purchase and dispose of eligible materials, subject to available funds.

Enacted

CRS 25-5-1311

Connecticut

Use:  Beginning on July 13, 2021, no person, local government or state agency shall use a foam that intentionally added PFAS substance for training or testing purposes. Also, beginning on October 1, 2021, no person shall use a firefighting foam that contains PFAS substances for any vapor suppression or firefighting purpose unless such fire is a flammable liquid-based fire and the Commissioner of Energy and Environmental Protection failed to identify an alternative to such use before July 1, 2021.

Enacted

SB 837

Take-back Program:  Beginning on October 1, 2022, an agency shall develop a take-back program for municipal sources of PFAS substances. 

Enacted

SB 837

 

Program Details

Delaware

Discharge:  Beginning on January 1, 2022, it is unlawful to discharge AFFF, subject to certain exceptions for emergency firefighting operations and for training or testing purposes. ‎

Proposed

SB 63

Georgia

Discharge and Use:  Beginning on January 1, 2020, no person, including fire departments, state agencies and political subdivisions, shall discharge or use AFFF, subject to some exceptions.

Enacted

O.C.G.A. 25-2-41

Hawaii

Discharge and Use:  On July 1, 2023, any person, state or county department, or agency shall not discharge or use a Class B firefighting foam that contains PFAS chemicals for training purposes.  Additionally, it shall be unlawful to manufacture, sell, or distribute a Class B firefighting foam that contains PFAS chemicals.  Moreover, a manufacturer that produces, sells, or distributes a class B firefighting foam shall recall the product and reimburse the purchaser for the product.

Proposed

HB 1644

Illinois

Discharge and Use:   Provides that a person, local government, fire department, or agency may not discharge AFFF for training or testing purposes.  Also, beginning on January 1, 2022, the manufacture, sale, or distribution of a Class B Firefighting Foam is prohibited, subject to a few exceptions.

Enacted

SB 561

Take-back Program:  A voluntary take-back provision is established for local fire departments that store older firefighting foam made with PFAS materials. 

Proposed

SB 562

Disposal:  Incineration of PFAS is prohibited. 

Proposed

HB 4039 and HB 3190

(Governor vetoed HB 3190 in Sept. of 2021)

Indiana

Use:  Beginning on June 30, 2020, a person, unit, or state agency shall not use AFFF for training or testing purposes, unless the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent releases to the environment.

Enacted

HB 1189

Disposal:  The Indiana Department of Homeland Security and the Indiana Department of Environmental Management collects AFFF from fire departments or state agencies. 

In Effect

Program Details

Iowa

Use:  A person shall not manufacture, sell, or distribute Class B Firefighting Foam with PFAS substances.  Also, no person, including fire departments, shall discharge or use AFFF, subject to some exceptions.

Proposed, but all 2021 actions for this bill ended on 12/31/21

HF 293

PPE:  A person shall not manufacture, sell, or distribute PPE with PFAS substances. 

Proposed, but all 2021 actions for this bill ended on 12/31/21

HF 293

Kentucky

Use:  Beginning on July 15, 2020, AFFF shall not be used for training or testing purposes, unless the testing facility has implemented best industry practices to prevent uncontrolled releases into the environment.

Enacted

Ky. Rev. Stat. 227.395

PPE:  Beginning on January 1, 2022, PPE that contains intentionally added PFAS chemicals shall not be used for firefighting or firefighting training purposes.

Proposed

HB 559

Louisiana

Use and Discharge:  Beginning on January 1, 2022, no person shall discharge or use AFFF unless such discharge or use occurs in fire prevention or in response to an emergency firefighting operation.

Enacted

Act 232

Maine

Use:  Beginning on January 1, 2022, a person, local government or state agency may not discharge firefighting foam to which PFAS substances have been added for testing or training, subject to an exception.  Also, on January 1, 2022, a manufacturer of a firefighting foam may not manufacture, sell, or distribute a foam to which PFAS substances have been added.

Enacted

LD 1505

Notification:  A person that discharges a firefighting foam to which PFAS substances have been added shall report the discharge as soon as practicable, but no later than 24 hours after the discharge occurs.

Enacted

LD 1505

Maryland

Use:  Beginning on October 1, 2021, AFFF may not be used for training or testing purposes, subject to some exceptions. 

Enacted

Md. Code, Envir. 6-1603

Use:  After January 1, 2022, a person may not use, manufacture, sell, or distribute Class B Firefighting Foam that contains intentionally added PFAS chemicals for specified testing purposes, unless the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent releases into the environment.

Proposed

HB 275

Notification:  Within five days of a release, a person should report the release and submit certain information.

Proposed

HB 275

Disposal:  A person may not dispose of AFFF using incineration or in landfills.

Proposed

HB 275

Massachusetts

Take-back Program:  AFFF materials (128,000 pounds) were disposed in this program in 2018. 

Enacted

Program Details

PPE:  Beginning on January 1, 2023, a manufacturer or other person that sells PPE containing PFAS chemicals to any person, local government, or state agency shall provide written notification to the purchaser at the time of sale.  Also, beginning on January 1, 2025, a manufacturer or other person that sells PPE containing PFAS chemicals to any person, local government, or state agency shall not manufacture, sell, or distribute these materials.

Proposed

S 1576

Incineration:  No person shall dispose of AFFF by incineration. 

Proposed

H 3836

Michigan

PPE:  The Director of the Department of Licensing and Regulatory Affairs establishes rules involving the containment and handling of PFAS materials, including the decontamination of PPE, following the use of AFFF. 

Enacted

Mich. Comp. Laws 408-1014r

 

Use:  Beginning on January 1, 2020, AFFF should not be used for equipment calibration purposes, subject to two exceptions.  

Enacted

Mich. Comp. Laws 408-1014r

 

Use:  Beginning on October 6, 2020, AFFF must not be used in any training.  Also, until December 31, 2023, the training must follow two requirements:  (1) include the proper use, handling, and storage of the AFFF; and (2) adhere to the best environmental and public health practices, including the containment, disposal, and decontamination of the PPE used.

Enacted

Mich. Comp. Laws 29-369c

Notification:  The fire chief shall report to the Michigan Pollution Emergency Alert System immediately after the incident when a fire department uses AFFF.

Enacted

Mich. Comp. Laws 324.14703

Take-back Provisions:  A collection program is available for entities properly disposing of any firefighting foam containing PFAS substances.

Enacted

Mich. Comp. Laws 324.14705

 

Program Details

Minnesota

Discharge:  Beginning on July 1, 2020, no person, political subdivision, or state agency shall discharge AFFF for training purposes, subject to some exceptions, and for testing purposes, unless the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent releases to the environment.

Enacted

Minn. Stat. 325F.072

 

Notification:  Beginning on July 1, 2020, any person, political subdivision, or state agency that discharges AFFF must be reported to the Minnesota Fire Incident Reporting System within 24 hours of the discharge. 

Enacted

Minn. Stat. 325F.072

 

Nevada

Notification:  Any person, political subdivision, local government or agency who discharges, uses, or releases foam that contains PFAS substances shall notify the Division of Environmental Protection of the State Department of Conservation and Natural Resources within 24 hours after the release.

Enacted

AB 97

Use:  A person should prevent the release of firefighting foam that contains PFAS substances to the surrounding environment, and requires that a person testing the foam has ensured that the proper containment, treatment and disposal of the foam are available at the testing location.

Enacted

AB 97

New Hampshire

Discharge and Use:  Beginning on January 1, 2020, no person, local government, or state agency may use AFFF for training or testing purposes, but the testing may occur if the facility implements the proper containment, treatment, and disposal measures to prevent any releases to the environment.  Also, beginning on January 1, 2020, a manufacturer shall not sell or distribute AFFF, subject to some exceptions.

Enacted

N.H. Rev. Statute 154:8-b

Take-back Provision:  After evaluating some additional information, beginning on July 1, 2021, the Department of Environmental Services will establish a take-back program for the purpose of safe and contained disposal of firefighting foams containing PFAS materials.

Enacted

N.H. Rev. Statute 154:8-b

Notification:  The municipality discharging the AFFF shall notify the Department of Environmental Services within 48 hours of the discharge.

Enacted

N.H. Rev. Statute 154:8-b

PPE:  Beginning on January 1, 2020, a manufacturer or other entity that sells PPE to any person, municipality, or state agency must provide written notice to the purchaser at the time of sale if the PPE contains PFAS chemicals.

Enacted

N.H. Rev. Statute 154:8-c

New Jersey

Discharge and Use:  Beginning two years from the date of enactment, no person shall discharge a firefighting foam containing PFAS substances for training or testing purposes unless the testing facility has implemented containment, treatment, and disposal measures to prevent releases to the environment.

Proposed

S402

Take-back Program:  AFFF materials (18,000 gallons) were disposed in this program in 2018. 

Enacted

Program Details

New York 

Discharge and Use:  No person, local government, or state agency will discharge or use AFFF for training purposes.  Also, beginning on December 23, 2021, manufacturers may not manufacture, sell, or distribute AFFF, subject to some exceptions. 

Enacted

S 439A

PPE:  A manufacturer or other person that sells PPE to any person, local government, or state agency must provide written notice to the purchaser at the time of sale if the PPE contains PFAS substances.  

Enacted

S 439A

Notification:  Releases of a hazardous substance must be reported by an employee, agent, or representative of the person who has knowledge of the release to the Department’s Spill Hotline within two hours after discovery of the release.  PFOS and PFOA are specifically listed as hazardous substances.

Enacted

6 NYCRR 597 PFOS and PFOA are hazardous substances

Incineration:  Incineration of AFFF shall be prohibited in a city with a population between 16,000 and 17,000 and in a region designated by the Department of Environmental Conservation as an environmental justice area.

Enacted

 A 9952

North Carolina

Storage:  The North Carolina Policy Collaboratory shall create an inventory of AFFF used or stored by fire departments in North Carolina operated, managed, or overseen by units of local government.

Enacted

SB 433

Discharge and Use:  No person may discharge or use AFFF for training purposes.  Also, a manufacturer may not manufacture, sell, or distribute AFFF, subject to some exceptions.

Proposed

HB 355

Notification:  Fire departments operated, regulated, or managed by the government shall, by no later than July 1, 2022, and annually thereafter:  (1) provide an inventory of all AFFF at each department; (2) identify all AFFF no longer utilized at each department that should be properly disposed of; and (3) report within 15 days every incident where AFFF was used.

Proposed

HB 355

Ohio

Use:  No person shall use AFFF for training or testing purposes, unless the facility has implemented appropriate containment, treatment, and disposal measures to prevent releases into the environment.

Proposed

HB 158

Pennsylvania

Discharge and Use:  Beginning on July 1, 2021, no person, entity, or a municipality may discharge or use AFFF for testing or training purposes, subject to some exceptions including:  (1) the testing facility has implemented appropriate containment, treatment and disposal measures to prevent releases into the environment; and (2) the training replaces the AFFF that contains a PFAS chemical with non-fluorinated substance.

Proposed

HB 1166

Rhode Island

Disposal:  The Rhode Island Department of Environmental Management established the AFFF Take Back initiative, and is coordinating with fire departments to assist with AFFF disposal.

In Effect

Program Details (See pgs. 7-8)

Texas

Discharge and Use:  A person may not discharge a firefighting foam designed to extinguish flammable liquid fires that contains intentionally added PFAS substances.  Also, a manufacturer may not manufacture, sell, or distribute a firefighting foam designed to extinguish flammable liquid fires that contains PFAS substances.

Proposed

SB 2073

PPE:  A manufacturer or other person who sells PPE should provide written notice of the PFAS materials at the time of the sale.

Proposed

SB 2073

Vermont

Discharge and Use:  A person, municipality, or state agency must not discharge or use AFFF for training purposes.  Also, a manufacturer of AFFF shall not manufacture, sell, or distribute AFFF, subject to numerous exceptions.

Enacted

S 20

PPE:  A manufacturer that sells PPE to any person, municipality, or state agency shall provide written notice to the purchaser at the time of sale if the PPE contains PFAS substances.

Enacted

S 20

Disposal Program:  The Vermont Department of Conservation and the Division of Fire Safety are working with state agencies or waste districts that assist fire departments with the disposal of AFFF. 

In Effect

Program Details

Virginia

Discharge and Use:  Beginning on July 1, 2021, no person, local government, or agency shall discharge or use AFFF for training, subject to an exception.  AFFF can only be used for testing purposes if the facility has implemented appropriate containment, treatment, and disposal measures to prevent releases into the environment.

Enacted

VA Code Ann. 9.1-207.1

Washington

Discharge and Use:  Beginning on July 1, 2018, a person, local government, or state agency may not discharge or use AFFF for training purposes.  Also, beginning on July 1, 2020, a manufacturer of AFFF may not manufacture, sell or distribute any AFFF, subject to some exceptions.

Enacted

RCW 70A.400.010 and RCW 70A.400.020

PPE:  Beginning on July 1, 2018, a manufacturer that sells PPE to any person, local government, or state agency must provide written notice to the purchaser at the time of sale if the PPE contains PFAS chemicals.

Enacted

RCW 70A.400.030

Disposal:  The Washington Department of Ecology is currently reviewing the potential impacts regarding an AFFF disposal program. This will be the first state initiated Environmental Impact Statement (“EIS”) review regarding how AFFF disposal options may impact the environment and public health, including evaluating emerging technologies.  A public comment period on the EIS is expected to occur during the late summer or early fall of 2022.

Proposed

Program Details

West Virginia

Discharge and Use:  Beginning on July 1, 2021, no person or other listed entity may discharge or use AFFF, subject to some exceptions.

Enacted

HB 2722

Wisconsin

Discharge and Use:  No person may discharge or use AFFF, including for training or testing purposes, subject to some exceptions.  The testing facility must implement appropriate containment, treatment, disposal, or storage measures to prevent releases to the environment.

Enacted

Wis. Stat. 299.48

Notification:  A person who uses or discharges AFFF shall notify the Department of Natural Resources immediately or as soon as practicable without hindering fire prevention operations.

Enacted

Wis. Stat. 299.48

 

No Regulations:  Alabama, Florida, Hawaii, Idaho, Kansas, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, and Wyoming

Groundwater Contamination Impacts to Businesses

One of the most significant risks that businesses in many industries face is impacts to groundwater from PFAS in AFFF.  For example, numerous Department of Defense (“DOD”) facilities have allegedly contributed to PFAS groundwater contamination which has migrated onto adjoining properties.  DOD has compiled a list of 651 DOD and National Guard sites where the DOD “is performing an assessment of PFAS use or potential release.”  There is also a DOD task force that discusses PFAS contamination at various sites and submits periodic reports.  The risk is particularly high at airfields and related facilities where AFFF was used in actual fire incidents and during training, and was usually washed down storm drains or other water management systems which could have allowed PFAS to enter the soil and groundwater.

There have already been reports of economic loss as a result of PFAS groundwater contamination which is believed to have been caused by the historic use of AFFF.  For example, in New Mexico, one farmer has reportedly been forced to dispose of 15,000 gallons of milk per day, and eventually cull his entire herd because of the PFAS contamination migrating from a nearby Air Force base. 

Notably, an owner of a coal mine located in Illinois was sued by the Illinois Attorney General for extinguishing a fire using AFFF which contained PFAS substances.  The Complaint alleges, among other things, that the Defendant “injected firefighting foam mixture containing PFAS” into portions of the mine, and as a result, is responsible for the water contamination to nearby creeks and ditches.  This recent suit underscores the risks posed by the use of fire suppression materials containing PFAS substances.   

Businesses that are purchasing property, or that want to evaluate their PFAS risk profile, should consider whether there are any nearby properties that may have historically used AFFF, and use that as a component of their due diligence and risk assessment.  

Conclusion

Many states have implemented AFFF regulations, and BCLP expects this trend to continue into the near future as regulators and industry groups try to understand and address the potential risks of AFFF use. 

For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage.  If you believe that you may be impacted by an AFFF regulation, or if you have a question about a regulation in a specific jurisdiction, please contact Tom Lee, John Kindschuh, or Elyse Voyen at Bryan Cave Leighton Paisner LLP.