In recent years, "forever chemicals," otherwise known as PFAS, have been extensively discussed in the scientific community and reported on by the media. And as the notoriety of PFAS grows, regulation of these widespread chemicals is anticipated to flourish across the country.

This summer in California, the state legislature banned the manufacture, sale, and use of firefighting foams that contain PFAS, beginning on January 1, 2022. Colorado, New Hampshire, New York, Maine, and Washington have already enacted similar bans.

PFAS describes a wide range of perfluoroalkyl and polyfluoroalkyl substances, of which the mostly widely used are Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS). They are synthetic chemicals that do not degrade naturally, and as such, are persistent in the environment.

PFAS are deployed to make products that resist heat, oil, stains, grease, and water. Their application in consumer products includes non-stick cookware and grease resistant paper, stain resistant coatings on upholstery, carpets and fabrics, water-resistant clothing, personal care products and cosmetics, as well as paints and other coatings.

PFAS are also used in firefighting foams, as they float on the surface of flammable liquids to create a barrier between the combustible vapors and oxygen in the area, keeping such fires from re-igniting. Firefighting foams containing PFAS are among the most significant sources of PFAS water contamination, as they are washed into storm drains and nearby surface water, or seep through soil into groundwater, after being applied to buildings. Other possible sources of PFAS releases to surface waters, soil, and groundwater include releases from facilities manufacturing products containing PFAS (e.g., tanneries, rug mills, and semiconductor factories.)

PFAS are an emerging contaminant, which means that their effect on human health and the environment is still being studied and they have not yet been categorized as a "hazardous substance" under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA, or Superfund), though the U.S. Environmental Protection Agency (EPA) is expected to act on this next year. EPA has not established a maximum contaminant level for PFAS chemicals. It has, however, put in place a non-enforceable health advisory level of 70 parts per trillion (ppt).

EPA's interim recommendations for addressing groundwater contaminated with PFOA and PFOS provides a screening level of 40 ppt to determine if PFOA and/or PFOS is present at a site. Findings above this level would warrant further investigation.

California's legislature passed SB 1044 in September 2021, which bans the manufacture, sale, and use of PFAS-containing "Class B firefighting foam" beginning on January 1, 2022. Class B firefighting foam is designed to prevent or extinguish a fire of flammable liquids, combustible liquids, petroleum greases, tars, oils, oil-based paints, solvents, lacquers, alcohols, and flammable gases. The ban contains one exception, which is where the use of Class B firefighting foam is required by federal law, such as under Federal Aviation Administration rules pertaining to aircraft rescue.

While the ban takes effect for the bulk of covered applications at the beginning of 2022, there are two classes of deferred application:

The law also provides for lawsuits to be brought by the attorney general or municipal counsel for failure to comply with the ban, with penalties that range from up to $5,000 for a first violation and $10,000 for each subsequent violation.

There is little guidance on how owners of fire suppression systems with PFAS-containing firefighting foams should retrofit their systems to comply with the impending ban. Challenges include compatibility of other foams with existing systems, cleaning the system to ensure no traces of PFAS, disposal (there is no universally accepted method for disposal), and feasibility of replacement systems.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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