FIREFIGHTING FOAM CONTAINING PFAS

House Bill 4389 as introduced

Sponsor:  Rep. Sue Allor

House Bill 4390 as introduced

Sponsor:  Rep. Jeff Yaroch

House Bill 4391 as introduced

Sponsor:  Rep. Jeff Yaroch

Committee:  Natural Resources

Revised 5-9-19

SUMMARY:

House Bills 4389, 4390, and 4391 would amend various acts to regulate the use and reporting of firefighting foam containing PFAS chemicals.

PFAS chemicals would mean a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom and designed to be fully functional in firefighting foam formulations (House Bills 4389 and 4390) or firefighting foam concentrate (House Bill 4391).

House Bill 4389 would amend Part 147 (Chemical Substances) of the Natural Resources and Environmental Protection Act (NREPA) to create a new subpart regulating the use and reporting of PFAS chemicals in firefighting foam.

The bill would require a fire chief, within 48 hours after an organized fire department uses firefighting foam containing PFAS, to submit to the Department of Environmental Quality (now the Department of Environment, Great Lakes, and Energy (EGLE) per Executive Order 2019-06) a written report containing all of the following information:

·         The reason the foam was used.

·         The physical address, including longitude and latitude, of the location where the foam was used.

·         The quantity of both the foam concentrate used and water used to produce the foam or used in conjunction with the foam.

·         The name brand and manufacturer of the foam concentrate.

·         The name of any body of water potentially affected by the foam or firewater through surface water runoff, groundwater, or a storm sewer or combined sewer, its distance and direction from the location where the foam was used, practices employed for containment and proper disposal of the foam and firewater, and whether the foam or firewater was known to have entered it.

·         Practices employed for cleanup and disposal of materials contaminated by the foam concentrate, foam, or firewater.

Firewater would mean water that has been used for firefighting.

Fire chief would mean the chief operating officer of an organized fire department.

Organized fire department would mean a department, authority, or other governmental entity that safeguards life and property from damage from explosion, fire, or disaster and that provides fire suppression and other related services in this state. It would include any lawfully organized firefighting force in this state.

EGLE could prescribe the format of the above report and the means by which the report would be submitted. Failure to submit a report could result in a civil fine of not more than $500, and a violation could be prosecuted by the attorney general or the prosecutor of the county where the violation occurred.

EGLE also would be required to establish a collection program for firefighting foam concentrate containing intentionally added PFAS chemicals with a carbon chain of more than 6. Under the program, EGLE would have to accept the foam concentrate free of charge and properly dispose of the foam concentrate. However, the program would be contingent on legislative appropriations to cover costs.

Proposed MCL 324.14701 et seq.

House Bill 4390 would amend the Firefighters Training Council Act to add a new section requiring certain training regarding PFAS.

The new section 9c would prohibit firefighting foam containing PFAS from being used in any firefighter training required under the act. Additionally, training conducted under the act would now have to include both of the following regarding firefighting foam concentrate containing PFAS chemicals:

·         Its proper use, handling, and storage.

·         The best environmental and public health practices, including at least containment and proper disposal, and decontamination of the firefighter’s equipment and body, following its use or the use of water containing PFAS chemicals.

Currently, the state fire marshal prepares and publishes rules establishing minimum standards for certification as a fire service member. The standards must comply with the current Michigan Occupational Safety and Health Administration general industry safety standard (Rule 408.17411 of the Michigan Administrative Code). The bill would add that the standards for certification must also comply with the new section 9c.

Additionally, the bill would add that veteran firefighters or persons certified in a different state would still have to complete the new training requirements, even if other general examination requirements have been waived.

The bill would take effect 90 days after it is enacted.

MCL 29.362 and 29.369 and proposed MCL 29.369c

House Bill 4391 would amend the Michigan Occupational Safety and Health Act (MiOSHA) to add a new section requiring the director of the Department of Licensing and Regulatory Affairs (LARA) to promulgate rules regarding a firefighter’s use of firefighting foam concentrate containing PFAS chemicals.

Firefighter would mean either of the following:

·         A member of an organized fire department or public safety department who is responsible for extinguishing fires, directing the extinguishment of fires, directing or managing emergency response activities, fire safety prevention inspection, plans examination, fire investigation, hazardous materials response, technical rescue response, airport rescue response and firefighting, fire service instruction, and enforcing the general fire laws of this state and the community where he or she serves.

·         An employee who, in his or her employment, is knowledgeable, trained, and skilled in at least basic firefighting operations.

The bill would require the new rules to include all of the following regarding firefighting foam concentrate containing PFAS chemicals:

·         The best practices regarding its proper use, handling, and storage.

·         The best environmental and public health practices, including at least containment and proper disposal, and decontamination of the firefighter’s equipment and body, following its use or the use of water containing PFAS chemicals.

·         Prohibition of its use by a firefighter for training purposes.

·         Prohibition of its use by a firefighter for equipment calibration purposes after January 1, 2020, unless one or more of the following apply:

o   The calibration is otherwise required by law.

o   The authority with jurisdiction and the facility where the calibration will take place have implemented measures that comply with the rules promulgated by LARA.

Authority with jurisdiction would mean the person or public agency or department responsible for regulating firefighting operations for the area in which a facility is located.

Currently under MiOSHA, the director of LARA is required to adopt administrative rules that are substantially similar to federal occupational safety and health standards. Proposed rules that address matters not addressed by federal standards are generally presented to the joint committee on administrative rules for review and implementation only after the director has determined that there is a clear and convincing need for the standard, among other requirements.

Under the bill, this current rule-making process would not apply to the new section described above.

MCL 408.1014 and proposed MCL 408.1014r

FISCAL IMPACT:

House Bill 4389 would increase costs for EGLE by requiring the department to establish a PFAS firefighting foam collection program. The extent of this cost increase is unclear, as the quantity of extant PFAS firefighting foam is unclear, but the bill requires appropriations to cover program costs, so the net fiscal impact on the department is likely to be zero. The bill would increase costs for local units of government with fire departments whose use of PFAS firefighting foam would be subject to the written reporting requirements of the bill; these costs are unlikely to be significant. The bill is also unlikely to affect local government revenues.

House Bill 4390 would increase costs for LARA. The bill would require firefighters to receive training in the proper use, handling, storage, disposal, and decontamination of firefighting foams containing PFAS chemicals. LARA indicated that any applicable training costs would likely be borne by the department. Potential training costs are unknown, but department estimates indicate a minimum likely cost of $20,000 for the training of current firefighters. In the future, firefighters would receive the required training through completion of firefighter I and II certification. 

House Bill 4391 would not have a fiscal impact on LARA or any other unit of state or local government. The bill would require the department to promulgate rules for various activities involving firefighting foams containing PFAS chemicals. However, the rules promulgation required under the bill would be accomplished by existing staff through existing appropriations.

                                                                                        Legislative Analyst:   Emily S. Smith

                                                                                               Fiscal Analysts:   Austin Scott

                                                                                                                           Marcus Coffin

■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.