Four-Part Series: Reducing PFAS Liability and Risk for Fixed Class B Firefighting Systems

This is the first in a four-part series on reducing PFAS liability risk for fixed Class B firefighting systems by leading environmental attorney Ned Witte, Attorney Shareholder at Godfrey & Kahn, S.C.

A looming conflict exists between the purposeful presence of and maintenance of Class B Firefighting Systems and environmental regulations to restrict or limit the use of such firefighting systems.

A looming conflict exists between the purposeful presence of and maintenance of Class B Firefighting Systems and environmental regulations to restrict or limit the use of such firefighting systems.

A looming conflict exists between the purposeful presence of and maintenance of Class B Firefighting Systems and environmental regulations to restrict or limit the use of such firefighting systems.

A looming conflict exists between the purposeful presence of and maintenance of Class B Firefighting Systems and environmental regulations to restrict or limit the use of such firefighting systems.

Less than two or three years ago, few Americans had heard of PFAS, the acronym for Per- and Polyfluorinated Alkyl Substances. Today, PFAS is, unfortunately, “having its moment:” PFAS is a top environmental priority for the Biden administration, as well as for the environmental regulatory agencies of many states; over 500 legal proceedings against manufacturers and producers of PFAS products have been consolidated in a multi-district litigation docket that continues to expand; and many people have become familiar with PFAS because it has been featured in popular books, movies, and in periodicals such as Consumer Reports. Like the name that has been given to PFAS, the “forever chemicals,” it would appear the PFAS problem is here to stay.

One way that PFAS can be released into the environment is especially concerning for a broad range of industries: the intentional discharge of PFAS containing firefighting foam. Historically, most of the attention to PFAS firefighting foam discharges has involved airports and military bases, where AFFF products, or “aqueous film forming foam,” are regularly used. What may take on more focus in the coming months, however, is the prevalent use of PFAS containing firefighting foam at industrial facilities across the country, in the apparatus commonly known as a fixed Class B Firefighting System.

Examples of Interior and Exterior Fixed Class B Firefighting Systems
PFAS migration pathway
Potential Migration Pathways and Exposure Routes for Environmental Releases of PFAS-Laden Foam from Class B Firefighting Systems

A looming conflict exists between the purposeful presence of and maintenance of Class B Firefighting Systems and environmental regulations to restrict or limit the use of such firefighting systems. The current and historical testing of such systems commonly entails discharging PFAS containing firefighting foam directly to the ground surface. Testing a Class B Firefighting system can also be necessary to make an industry eligible for fire insurance. However, execution of these testing protocols may directly conflict with newly evolved environmental protection regulations designed to prevent PFAS releases to the environment.

Any business with the potential for a Class B Fire – meaning one of flammable or combustible materials – and having a Class B Firefighting System to anticipate such an event should prepare now to be ready for these restrictive PFAS regulations. Businesses should take action before an emergency or further regular or annual testing causes the release of PFAS-containing foam at an industrial facility. Such preparation should include:

  • Keeping abreast of the evolving regulations,
  • Developing best management practices to carry out ongoing tests or to be prepared for a PFAS release event, and
  • Researching investigation and remediation avenues to address PFAS contamination.

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About the Author

Ned WitteNed Witte, J.D.
Attorney Shareholder, Godfrey & Kahn, S.C.
Ned Witte is an attorney and shareholder with the Godfrey & Kahn Environmental Strategies Practice Group. Ned represents clients concerning environmental due diligence and liability allocation in transactions, enforcement defense, Brownfields development, and Superfund matters. Ned has particular experience concerning Per- and Polyfluoroalkyl substances, or PFAS, representing clients at multiple PFAS sites in Wisconsin. Ned serves as Co-Chair of the Public Policy and Citizens Advisory Committee to the Wisconsin PFAS Action Committee, which is developing the 2020 Wisconsin PFAS Action Plan. Ned is also a member of ASTM Collaboration Area AC417 – PFAS Real Estate, Legal, Due Diligence Focus Group supporting the Committee E50 on Environmental Assessment and Risk Management, related to updating the E1527 ASTM Phase I Environmental Site Assessment protocol. Ned will also be moderating a panel of experts at both the American Bar Association Section of Environment and Energy Resources (SEER) Fall 2020 Conference and the State Bar of Wisconsin Environmental Law Section Annual Meeting. He received a Juris Doctor and a Masters of Studies of Environmental Law from Vermont Law School, and a Bachelor of Arts from the University of Vermont.