Fire departments face liability risks and potentially huge costs and uncertainties as they switch from PFAS-enabled firefighting foam, according to lawyers and groups working with them.
The Pentagon’s recent release of its requirements for firefighting suppressants that could substitute for PFAS-based aqueous film-forming foam increases the pressure on fire departments to stop using AFFF, said Bradley M. Pinsky, an attorney with the Pinsky Law Group, PLLC, which counsels fire departments and districts.
AFFF, used primarily by the military but also by civilian firefighters, has polluted drinking water across the country and raised concerns about potential harm to health, including an elevated risk of cancer. Twenty-four states have banned training with AFFF or otherwise restrict its use.
Fire departments need information on the performance and safety of alternatives, guidance to get rid of old foam safely, and money to pay for disposal and buy substitutes, attorneys, state officials, and fire professionals said in recent interviews. Departments also face potential liability over cleanups in places where they used the old foam, they said.
Firefighters are looking to the federal government for help.
The Pentagon’s new standards don’t change firefighters’ questions, said H. Todd Bullard, an attorney leading Harris Beach PLLC’s team that works with emergency responders. “If we can’t use what we have, how do we get rid of it? What’s the alternative and does it work? How can we acquire the new foam?”
The Pentagon didn’t respond to questions about whether and how it will make information about the alternatives it tested available.
Litigation, ‘Insane Costs’
The longer fire departments use AFFF, the greater their liability risk—especially now that the military has released its requirements for substitutes, said Pinsky, who served as the chief of the Manlius Fire Department in Manlius, N.Y.
In 2020 a Carteret, N.J., branch of Insurance Auto Auctions Inc., an automotive salvage and auction service, sued 10 fire departments and other parties claiming they were liable for cleanup costs from the use of AFFF to extinguish a fire. That case eventually was transferred into In Re Aqueous Film-Forming Foams Products Liability Litigation MDL 2873, a multidistrict case overseen by the US District Court District of South Carolina in Charleston.
But, the “New Jersey case is where everything is going,” Pinsky said.
If the fire departments are deemed liable for AFFF contamination, “the cost of cleanups are insane,” he said.
That’s a huge concern to the nation’s volunteer fire departments, which raise their money “mostly from spaghetti dinners,” said Tom Miller, chairman of the National Volunteer Fire Council’s Hazmat Response Committee.
Of the 29,452 fire departments nationwide, 18,873, or 64%, were all-volunteer in 2020, according to the National Fire Protection Association.
If the case proves frivolous and insurance applies to the incident, the fire department may not have to pay to defend itself, Pinsky said. “The question is really whether the insurance company will defend a claim.”
‘Not Insurable’
If a fire department uses AFFF for a purpose a state has banned, “it’s an illegal act; it’s not insurable,” said David Denniston, director of risk management McNeil & Co., a national insurance provider.
Differences in state laws can make for tricky situations when fire departments cross state lines help with an emergency, Denniston said.
One fire department in a state that’s allowed to use AFFF may back up another department in a state where AFFF can’t be used—or at least can’t be used for the landfill or fire incident that prompted the emergency, he said. Yet firefighters have to make quick decisions to save lives and protect property.
Hazmat units’ use of new fire suppressants to put out tanker truck and other fires also are running into disputes with the insurance companies that represent the trucks that caused the fire, Miller said.
“Many fire departments with hazmat units rely on insurance reimbursements” to help pay the costs of incidents, he said. Putting out fires often requires a greater volume of the new suppressants than was needed with AFFF, Miller said. Yet the truck’s insurance company “will only reimburse you for a lesser amount of foam.”
What’s more, the new foams often cost more than AFFF, based on online advertising for several brands, “which creates a problem for an already strapped fire department,” Miller said. Cleaning out trucks and other equipment, can cost $8,000 to $30,000, he said. “Most fire departments don’t have that kind of money.”
Take-Back Programs
Bill Webb, executive director of the Congressional Fire Services Institute (CFSI), a nonprofit organization that lobbies Congress on the needs of fire and emergency services, said that organization will push the federal government to support take-back and disposal programs and help fire departments purchase non-PFAS-based suppressants.
At least 12 states have AFFF take-back programs or plan to launch them this year.
States are using different disposal methods and criteria for new fire suppressants.
Arizona, which launched a pilot program in December, is one of the few states to take back and dispose of AFFF and replace it with an alternative fire suppressant made without PFAS.
The Arizona Department of Environmental Quality budgeted $395,500 for a one-year program to help at least 29 fire departments get rid of and replace 3,755 gallons of AFFF, said Laura Malone, the director of the department’s Waste Programs Division.
Replacement foam in Arizona can’t contain PFAS, she said. The specific suppressant the state will provide, F-500 Encapsulator Agent, was selected by the fire departments.
US Ecology Inc., a hazardous waste management company, will solidify the AFFF and dispose of it at a site in Beatty, Nevada, Malone said.
Safety Criteria
Washington, which plans to start a replacement program soon, is considering disposal options including deep well injection and supercritical water oxidation, which uses heat and pressure to destroy PFAS, said Holly Davies, a senior toxicologist with Washington state’s Department of Health.
The state has adopted standards for chemicals in designated safer products. Based on those standards, the health department recommends fire departments use alternatives certified by GreenScreen, she said.
Designed by Clean Production Action, a nonprofit group focused on green chemistry and sustainability, GreenScreen has certified dozens of fire suppressants as being free of PFAS and other chemicals that may harm people’s health or the environment. GreenScreen’s list of certified products details specific Underwriters Laboratories Inc., National Fire Protection Association, and other standards, that insurance companies, fire departments, and other parities can require.
Colorado, Connecticut, Massachusetts, Michigan, and Minnesota are among other states that refer fire departments to GreenScreen for AFFF substitutes.
Indiana suggests fire departments use the Fire Department Safety Officers Association’s list of PFAS-free AFFF substitutes that don’t contain chemicals California says can harm reproduction or cause cancer.
Federal agencies could help fire departments, especially smaller volunteer ones, by providing as much guidance as possible on the best practices for using the new alternatives, information on their performance, and enforcement leeway as firefighters transition to the new types of suppressants, Bullard said. Grants to help fire departments also would help, he said.
—With assistance from Andrew Wallender.
To contact the reporters on this story:
To contact the editor responsible for this story:
To read more articles log in.
Learn more about a Bloomberg Law subscription