1. Discharge or Use Restrictions. These regulations usually limit or prohibit the use of AFFF in training or testing exercises, and may 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. 

I. 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 a significant focus of investigations by regulatory agencies, usually concentrating upon impacts to drinking water wells and groundwater resources 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, military bases, 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, Michigan and New York have provided helpful information about AFFF that may assist interested parties both in those states and elsewhere.

II. 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.

III. 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 November 4, 2022. 

No Regulations (as of the date of publication):  Alabama, Florida, Idaho, Kansas, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming.

IV. 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. 

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 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.  

V. 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. 

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