Last month, the U.S. Department of Defense issued a new specification for fluorine-free foam (“F3”) that would replace the PFAS-containing AFFF (Aqueous Film-Forming Foam), still widely used by the U.S. military and airport firefighting crews. This is an important step in reducing or ending the use of AFFF, which continues to be used in select applications because it has no adequate replacement. The new specification limits PFAS content in the F3 foam to 1 part per billion. The Federal Aviation Administration (FAA) has been working with the U.S. Navy to develop the new specification, and has advised that it will permit usage of F3 at facilities under its oversight once qualified products have been introduced.
The speed with which products meeting the new specification are developed, tested, and adopted remains to be seen, with the FAA advising a minimum of 90 days from the date of the new specification before the first products could be expected to be certified and placed on the Navy’s qualified product list (QPL). As reported last year by the National Fire Protection Association (NFPA), years of research have thus far not yielded a “drop-in” replacement for PFAS AFFF, which accounts for its continued use, particularly in military “emergency situations,” and which we discussed in a previous post that was included in our 2022 PFAS blog series. Nonetheless, the Department of Defense has committed to banning PFAS AFFF usage by October 1, 2026 at the latest, with a target deadline of October 1, 2024.
Among the growing number of PFAS applications that are raising concerns, military and airport usage of AFFF still remains an important focus, as indicated by the Seattle Times’ recent article spotlighting AFFF usage at Seattle-Tacoma International Airport. This aspect of PFAS contamination was also one focus of the webinar PFAS Litigation and Regulation – Past, Present, and Future, sponsored by the ABA Section of Environment, Energy, and Resources, which TRG recently attended. Here at TRG, AFFF is front and center just as it was when we first started researching its historical use and disposal at military aviation facilities many years ago. However, our work on PFAS-related cases continues to broaden as new and potential sources of contamination are encountered, which we wrote about last year in this blog.
This photo courtesy of NC Health News shows PFAS-containing leather scraps that were disposed of in a local North Carolina waterway. (Photo by Garrett Ellison, MLive)
The ABA’s webinar touched upon some of these ongoing developments, in particular in terms of how litigation is evolving in response to newly identified sources of contamination and new regulations. For instance, product liability litigation related to PFAS now includes “failure to warn” and design defect claims, while there are also now a variety of consumer protection/breach of warranty, personal injury, negligence, and nuisance lawsuits. While federal action on PFAS continues to move forward, litigation is still driven in large part by regulation at the state level. More states are taking action to ban PFAS via restrictions on specific products or applications, or via outright ban, with several measures taking effect this year. Maine’s ban is particularly broad, with one webinar presenter noting that without an exemption it would include Prozac, one of a number of PFAS-containing pharmaceuticals.
While PFAS awareness, regulation, and litigation continue to evolve, TRG’s ability to provide valuable historical information to our clients remains unchanged. Our experience providing historical research and analysis related to product liability issues, occupational hazards, and, of course, a wide array of environmental contaminants ranging from volatile organic compounds to heavy metals, enables us to readily assist our clients in navigating their PFAS-related cases.