by Joseph Miller III and Hayley Loufek
On August 6, 2021, Governor Pritzker signed into law the PFAS Reduction Act (Public Act 102-0290, formerly Senate Bill 561). The Act puts some restrictions on the use of Class B firefighting foam containing intentionally added “PFAS” (perfluoroalkyl or polyfluoroalkyl substances) for training and testing purposes.
PFAS are a group of man-made chemicals that have been shown to lead to adverse health effects. These chemicals are “persistent” in the environment and in the human body, which means they do not break down and, in fact, accumulate over time. These accumulations might cause low infant birth weights, immune system deficiencies, cancer, and thyroid hormone disruption.
Due to these risks, the General Assembly passed the PFAS Reduction Act. Beginning January 1, 2022, a person, local government, fire department or State agency may not use Class B firefighting foam containing intentionally added PFAS for training or testing unless it takes certain steps beforehand.
Importantly, though, the prohibitions the PFAS Reduction Act do not apply to the use of Class B firefighting foam containing PFAS by fire departments while responding to emergency situations. Indeed, the Act is not meant to prevent or discourage a fire department from responding to and mitigating instances of fire, spills, or leaks of known or suspected flammable liquid.
Entities seeking to use firefighting foam containing PFAS for training or testing purposes must comply with the Act’s requirements. First, such agencies must evaluate the testing facility it will use to ensure that it allows for appropriate containment, treatment, and disposal of the foam. This is meant to prevent uncontrolled release of the foam into the environment. Flushing, draining, or discharging foam into sanitary sewers, storm drains, ditches, or waterways are not appropriate disposal measures. The Illinois Environmental Protection Agency will post information regarding proper methods of disposal of Class B foam containing PFAS on its website beginning no later than January 1, 2023. The entity using the foam must also provide training for its employees on a disposal plan, possible hazards, and protective actions.
Entities using the firefighting foam containing PFAS for testing must then notify the Illinois Emergency Management Agency within 48 hours of the discharge or release of the foam. The notification must include:
- The time, date, location, and amount of foam discharged/released into the environment;
- The purpose for which it was discharged/released;
- The containment, treatment, and disposal measures to be taken to prevent or minimize the discharge/release; and
- The name of the person, unit of local government, fire department, or State agency, the local incident number, and the Fire Department Identification (“FDID”) number, if applicable.
These notification requirements go into effect on January 1, 2022.
Moving forward, the Office of the State Fire Marshal will conduct annual surveys of fire departments to gather information about any Class B foam containing intentionally added PFAS in a department’s possession, as well as its use and disposal of such foam within the appropriate reporting period. These surveys will begin January 1, 2022, and will continue for five years. Survey results will be compiled and provided to the Illinois General Assembly each year.
Beginning January 1, 2025, manufacturers of Class B firefighting foam may not knowingly manufacture, sell, or distribute Class B firefighting foam containing intentionally added PFAS. However, this does not apply where the inclusion of PFAS chemicals is required or authorized under federal law or local building/fire codes, unless the federal law allows the use of alternative firefighting agents that do not contain PFAS. Manufacturers are required to provide notice of this new Act to sellers of its foam, and are subject to civil penalties between $5,000-$10,000 for any violations.
If your department wishes to train with firefighting foam that contains added PFAS, we recommend you partner with counsel to ensure the PFAS Reduction Act’s requirements are met.