Storage and Use of Fire Fighting Foams Under NYDEC Hazardous Substance Rules

Written By: Caltha LLP | Published On: 26th November 2016 | Category: Hazardous Materials | RSS Feed

On April 25, 2016, the New York State Department of Environmental Conservation (DEC) completed an emergency rulemaking that listed four new chemicals on the list of hazardous substances that may be found in Class B firefighting foam. DEC adopted an emergency rule that modifies the list of hazardous substances in Part 597 to include:

  • perfluorooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1),
  • ammonium perfluorooctanoate (PFOA-salt, CAS No. 3825-26-1),
  • perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), and
  • perfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3)

These substances have been and in some cases, may still be, components in Class B foams, including aqueous film forming foam (AFFF), alcohol resistant aqueous film-forming foam (AR-AFFF), film-forming fluoroprotein foam (FFFP), alcohol resistant film-forming fluoroprotein foam (AR FFFP), and fluoroprotein foam (FP, FPAR).
There are three major impacts on the storage and use of Class B firefighting foams:

  1. If a facility stores a Class B foam, it may be subject to the registration and storage requirements of the DEC’s Chemical Bulk Storage (CBS) regulations (6NYCRR Parts 596 – 599). These requirements include standards for the storage and handling of hazardous substances in tanks or other bulk containers/
  2. The release of one pound or more of one of these hazardous substances into the environment is prohibited. Part 597 allows the use of Class B firefighting foam containing PFOS or PFOA for fighting fires (not for training) for one year until April 25, 2017.
  3. Where there has been a release of one or more of these hazardous substances causing environmental contamination, cleanup may be required under one of the DEC’s remedial programs (i.e., State Superfund or a Brownfields Program).

Facilities are subject to the storage and handling requirements of the CBS regulations if the Class B foam meets both of the following conditions:

  • foam contains 1% or more by volume of one or more of the hazardous substances listed in Part 597; and
  • foam is stored in an aboveground storage tank (stationary device) of 185 gallons or greater, an underground tank of any size, or a container (non-stationary device) that is used to store 2,200 pounds or more for a period of 90 consecutive days or more.

If a facility meets both of the above conditions, then it will need to register tanks with the DEC (as directed in Part 596). The registration requirement went into effect on the effective date of the regulation (April 25, 2016). While the registration requirements are immediately applicable, the storage and handling requirements found in Part 598 are not applicable for two years (until April 25, 2018).

The release of these hazardous substances into the environment in a quantity greater than one pound is prohibited. The newly adopted regulations allow for continued use of Class B firefighting foam that contains these substances until April 25, 2017. If Class B foam that contains these hazardous substances is used to fight a fire and more than one pound of a hazardous substance is released into the environment, then the release must be reported to the DEC’s Spill Hotline.

If the Class B firefighting foam being used contains hazardous substances such that you cannot use it without releasing one pound or more of a hazardous substance, then it needs to be replaced on or before April 25, 2017.

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