Prior to the just concluded session of the Maryland legislature, the State’s laws and regulations were silent with regard to PFAS chemicals including PFOA. At worst, Maryland could have been criticized along with the Federal government and other states, for failing to regulate PFAS as a hazardous substance.
But then, some days ago Maryland did what no other state (nor the Federal government) has done. It passed legislation (.. actually 3 separate bills) expressly permitting PFAS (.. perfluoroalkyl chemicals)?!
To appreciate this legislative act some context is appropriate. I wrote in a blog post last November, PFOA Contamination Found in 49 States, the “New York Attorney commenced a civil suit against the nation’s largest chemical manufacturers and several firefighting foam makers for what the complaint alleges is contamination of water supplies across the state with PFAS.” That lawsuit, among others filed by governments, was among many hundreds of PFAS suits pending across the country, not to mention the more than 120 lawsuits involving fire-fighting foam that have been combined in one multidistrict litigation in Federal Court in South Carolina. In late 2019 hazardous waste incinerators in at least three states were destroying PFAS fire-fighting foam (.. a future blog post will consider the Clean Air Act implications not to mention the wisdom of incinerating PFAS fire-fighting foam?). Then on February 20, 2020, the EPA issued preliminary determinations to regulate PFOA and PFAS in drinking water and also issued a supplemental proposal regulating new uses of PFAS as requiring review under TSCA.
But while other states were suing to stop the use of PFAS and incinerating PFAS fire-fighting foam, while the Federal government was declaring it a hazardous substance, on March 18, 2020, the Maryland legislature, by unanimous vote in the House and Senate passed HB 619, the day before also having unanimously passed SB 420 / HB 581, which were amended to be the same as HB 619, authorizing and allowing PFAS use in Maryland.
HB 619 was also significantly amended from the originally drafted local bill seeking to protect Baltimore County firefighters from fire-fighting foam (.. more precisely, aqueous film-forming foams) containing PFAS.
This much amended legislation as enacted purports to “prohibit” beginning October 1, 2021, the use of “Class B fire-fighting foam” that contains “PFAS chemicals” for testing purposes or training purposes, that is, non PFAS foam is to be used for training, but the bill permits PFAS use in Maryland when in anything other than testing and training with fire-fighting foam. There is an express ‘get out of jail free’ provision for Baltimore-Washington International Airport (but not for other civilian or military airports, because they did not know to ask to be exempted?), presumably to allow Federally mandated fire-fighting training at BWI, but the bill does not restrict the manufacture, sale, distribution, discharge, or use of Class B fire-fighting foam that contains intentionally added PFAS chemicals in fire-fighting or fire prevention operations. Nor does it in any other way prohibit or even regulate PFAS chemicals in other uses.
PFOA was used for decades to make nonstick surfaces on frying pans and ski wax. PFOS was used to make water repellent clothing, pizza boxes and more.
Perfluoroalkyl and polyfluoroalkyl substances are a group of more than 4,000 man-made chemicals that have been manufactured and used in a variety of industries around the globe, including in the United States since the 1940s and have been the most extensively produced and studied of these chemicals. PFAS are very persistent in the environment and in the human body, meaning they don’t break down, accumulating over time, and as such have been referred to as ‘forever chemicals’ making them an emergent environmental priority.
The EPA reports, “there is evidence that exposure to PFAS can lead to adverse health outcomes .. studies indicate that PFAS can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals, .. and have caused tumors in animal studies.”
A peer reviewed study cited approvingly by the EPA describes 99.7% of Americans have a detectable PFOA in their blood!
The Department of Defense has identified 15 bases in Maryland “known to have releases of PFAS.” There is PFAS fire-fighting foam in use at most if not all 38 civilian airports in Maryland. An indeterminate number of Maryland local government and volunteer fire departments have PFAS foam fire suppression systems. And there are similar PFAS fire-fighting foam systems at marinas and in thousands of boats across the State.
A surprise to some, the Maryland Department of the Environment (which has been considering PFAS measures itself for some time but to date has done nothing), offered a letter of support for the legislation at the hearing.
It has been suggested this legislation will put in jeopardy claims within Maryland in the national fire-fighting foam multidistrict litigation in South Carolina.
There are alternatives to PFAS containing fire-fighting foam and to a host of other products, in use in other states and around the world.
This law firm has been advising and counseling clients in PFAS related matters since 2009. The subject matter is not new to us and we are ready to help you.
Adverse health impacts from PFAS are being policed by the marketplace in the courts, including enforcing existing tort law, and this legislation that began as an earnest and good effort to protect Baltimore County firefighters, is now bad statewide environmental public policy that will also have the effect of costing the Maryland taxpayers Millions of dollars in damages. It has been suggested that the Maryland Governor should veto the 3 bills, but given that they passed unanimously, such would not solve the greater environmental catastrophe.