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Preparing in the Eye of the Hurricane: PFAS-containing firefighting systems

Preparing in the Eye of the Hurricane: PFAS-containing firefighting systems

Preparing in the Eye of the Hurricane PFAS containing firefighting systems
By: Ned Witte and Heather Davis

As we noted in our recent blog post (Assessing the Present Shift in Federal PFAS Regulation (3/19/25)), the federal PFAS1 regulatory landscape is relatively quiet right now (meaning quiet, as in the eye of a hurricane kind-of-quiet), while the U.S.EPA re-evaluates the rulemaking that occurred under the prior administration.2 In the midst of this deceptive calm, businesses in the storm’s path may be tempted to take a wait-and-see approach, but facilities that have used PFAS in the past or that still have PFAS onsite should instead use this lull to get organized and take proactive steps to mitigate their PFAS liability risk. This call-to-action is especially critical for facilities that rely on PFAS-containing firefighting systems.

Often referred to as “Class B Firefighting Systems,” these apparatuses hold aqueous film-forming foam, or AFFF, in tanks connected to dispersion devices to mix the concentrate with water and release foam, like a sprinkler system, in the event of a “Class B” fire. A Class B fire is one involving flammable material, such as petroleum, volatile chemicals, and the like. According to National Fire Protection Association (“NFPA”) standards, businesses with Class B Systems were required to maintain and ensure the preparedness of their firefighting equipment by routinely and periodically testing their AFFF systems by deploying foam.3 And, commonly, especially before the period of heightened PFAS awareness, the state-of-the-art industry practice was to allow the foam from a testing and maintenance event to soak into the ground or follow the stormwater drainage.4
If you have AFFF onsite, what risks are you facing?

1. Fire event. A fire that causes the AFFF fire suppression system to operate as designed will likely result in a broad release of PFAS to the environment, including releases to the soil and groundwater onsite or to stormwater or wastewater conveyances that will carry the PFAS offsite. Releasing AFFF to the environment could also trigger the need to report the release to environmental government agencies and to investigate and remediate the impacts to the environment – which could uncover broader impacts from prior testing related releases. In Wisconsin, for example, Wisconsin Statutes §299.48 (“Firefighting foam containing PFAS”) requires that a person who uses or discharges a firefighting foam to extinguish a fire shall notify the Wisconsin Department of Natural Resources of the use or discharge of the foam “immediately.”

2. Testing the system. Hampered by state regulations limiting how AFFF fire suppression systems can be tested, many businesses are forgoing testing in favor of taking the risk that their systems are not functional or providing adequate fire protection. In Indiana, for example, Class B firefighting foam containing PFAS is prohibited for testing purposes unless the testing facility has implemented appropriate containment, treatment, and disposal measures to prevent releases of the Class B firefighting foam to the environment. I.C. §§ 36-8-10.7 et seq.

3. Litigation. Opportunistic plaintiffs’ lawyers are aggressively looking for any party that is tangentially linked to PFAS use. Publicly available data may identify businesses with the Standard Industrial Code (SIC) or North American Industry Classification System (NAICS) “marker” for producing, using, or handling flammable materials or chemicals that make them a likely owner or operator of a Class B system. The parties bringing these actions are not looking for the ultimately culpable party, just any party (with money for settlement) that could be plausibly liable. We will cover this topic in a forthcoming Earth & Water Blog.

4. AFFF bans. States are now passing their own legislation banning PFAS in certain categories of products, including fire-fighting foam, with some states moving to eventually prohibit PFAS in all products unless an exemption applies. One such bill in New Mexico is now awaiting the governor’s signature after passing in both the New Mexico House and Senate by overwhelming majorities. And with limited exceptions, Minnesota prohibits intentionally added PFAS in firefighting foam for testing, training, and incident response. Minn. Stat. § 325F.072.

5. Treatment of discarded AFFF as “hazardous waste.” In a state “first,” the New Mexico Environment Department (NMED) plans to regulate discarded firefighting foam containing PFAS as “hazardous waste” under a second PFAS bill that is sitting on the New Mexico governor’s desk awaiting signature into law. Other states may likely follow New Mexico’s lead.

6. AFFF Obsolescence. Finally, businesses need to plan for the limited availability of PFAS for AFFF fire suppression systems in the near future. 3M, for example, one of the principal manufacturers of PFAS, has announced that it is exiting the PFAS business at the end of 2025 (see 3M press release here).

How should you proactively manage these AFFF risks?
A best management practice for businesses with current or previous Class B Systems that want to take action is to work with environmental consulting engineers, best retained by legal counsel to maximize the attorney-client privilege for the work and advice the consultant provides to you.
In essence, this might resemble a Failure Mode and Effects Analysis (FMEA), which is a structured approach to discovering potential failures that may exist within the design of an existing product or process. The FMEA conversation might easily start by asking questions such as, “what happens if there is a fire at our facility tomorrow? Where will foam go? How can we control the released foam and turn off the system before it releases even more foam after the fire is under control? What entities (e.g. state agencies, National Response Center, Local Emergency Planning Committees) should we/will we need to notify? How much PFAS will be released? Should we presently have a means of capture all AFFF that is dispersed?”
Common approaches that proactive businesses have adopted include an internal investigation to complete a desktop evaluation of current and past practices related to PFAS use and management and the development of a risk matrix to identify priority concerns that should be addressed. This evaluation can also drive important considerations such as “does the facility still need a Class B system?” and, if it does, “is it feasible to isolate the flammable materials to reduce the scale of the Class B system,” or “are management practices or physical controls (i.e. diking and curbing) feasible to contain the release of PFAS in the event of a fire?”
While the decision to proactively take on an issue like PFAS management can be a bold step, experience shows that it is more cost-effective and ultimately productive to address your PFAS risk in a forward-thinking way rather than having your hand forced through litigation or enforcement.

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Coming soon in the “Preparing in the Eye of the Hurricane” PFAS series:
  • A discussion about PFAS lawsuits being filed by public water systems
  • What businesses should be discussing today with their insurance brokers about PFAS
  • Dealing with PFAS in a “deal” and preparing your exit strategy
  • A “state” of the state laws banning PFAS in products
    • 1PFAS is the acronym for per- and polyfluoroalkyl substances.

    2The prior administration’s rulemaking included: (a) designating two PFAS (PFOA and PFOS) as “hazardous substances” under the federal “Superfund” law (the Comprehensive Environmental Response Compensation and Liability Act, or CERCLA) and (b) establishing drinking water standards, including maximum contaminant levels, or MCLs, for PFAS under the Safe Drinking Water Act (“SDWA”).

    3NFPA 11, which includes terms pertaining to “Standards for Low-, Medium- and High-Expansion Foam,” in Chapter 12 (“Maintenance”), requires that a performance evaluation of the foam, including a flow test of the system proportioner, be conducted as part of annual inspection and testing. NFPA 11, §§ 12.1.1, 12.1.4.

    4For further insights and evaluation of Class B Systems and related risks, please see “Reducing PFAS Liability and Risks for Fixed Class B Firefighting Systems” (American Bar Association Litigation Section, Spring 2022) (available at https://acrobat.adobe.com/id/urn:aaid:sc:va6c2:d57dd1fc-ab29-4a54-b2a5-12363b6491c0) and the Regenesis Company sponsored webinar video “PFAS in Class B Firefighting Systems – Prepare Now for Looming PFAS Roadmap Challenges” (April 20, 2022) (available at https://youtu.be/yepNua5Gpbo).

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    Brendan McGinnis

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