SB 1044: Firefighting equipment and foam: PFAS chemicals

SB 1044 seeks to address the fallout from the ubiquitous use of the "forever" chemicals known as per- and polyfluoroalkyl substances or PFAS, by having California join a growing list of other states in banning one of the largest sources of PFAS contamination -- PFAS firefighting foam.

PFAS are synthetic, human-made compounds that were manufactured in the United States beginning in the 1940s. Their ability to repel oil and water led to their widespread use in consumer products, such as non-stick pans, outdoor gear, raincoats, carpets and upholstery, and food packaging. PFAS compounds were also widely used in industrial processes, including chrome plating, electronics manufacturing, and notably, firefighting foams. Significant contamination of potable water sources across California, as well as a range of potential health impacts, have been attributed by the State to the manufacturing and use of PFAS-containing products. The State Water Resources Control Board's recent statewide investigation found PFAS contamination in nearly 100 public water systems that serve approximately 7.5 million Californians.

SB 1044 seeks to address one significant source of PFAS contamination by banning the manufacture, sale, and use of PFAS firefighting foam. The law also requires sellers to notify purchasers of firefighter personal protective equipment if PFAS has been used in the equipment.

The law sets a timeline for phasing out all PFAS firefighting foam uses in California, with a general ban starting on January 1, 2022. However, the law allows for delayed compliance in two major categories: certain facilities with fixed fire suppressions systems have an additional two years to comply (until January 1, 2024), and certain terminals and oil refinery facilities have at least six years to comply (until January 1, 2028), and potentially longer. Violations of the law trigger civil penalties of up to $5,000 for the first violation and $10,000 for each subsequent violation.

With SB 1044, California joined several states who have banned PFAS in firefighting foam, including Washington, New Hampshire, New York, and Colorado. Congress also recently passed legislation requiring the U.S. military to phase out PFAS firefighting foam by 2024. Another 2018 federal law directed the Federal Aviation Authority to allow airports to use PFAS-free firefighting foams.

Firefighting foams are the first of several PFAS sources likely to be regulated by California in the coming years. Indeed, California has already begun efforts to regulate carpets and rugs, textile treatments, food packaging, and drinking water standards. And in February 2020, California set a stricter standard for when water suppliers must respond to PFAS contamination. In addition to being the driver for new laws and regulations, PFAS contamination will also spur litigation across the State. For example, in December 2020, Orange County Water District and ten other municipal corporations and water districts filed suit against major PFAS manufacturers to assign responsibility for PFAS decontamination efforts and costs. As additional sources and contamination are discovered, litigation and regulation of PFAS will only increase.