The International Association of Firefighters has filed suit against the National Fire Protection Association claiming that portions of NFPA 1971 wrongfully impose requirements on structure fire turnout gear that, in essence, mandate the use of cancer-causing PFAS. The three-count complaint alleges civil conspiracy, violation of Massachusetts’ unfair and deceptive trade practices act, and negligence.
The suit was filed in Massachusetts state court, Norfolk County Superior Court, on purely state law grounds (no federal allegations). The factual allegations are complicated, and go back to the 2007 edition of NFPA 1971, Standard on Protective Ensembles for Structural Fire Fighting and Proximity Fire Fighting. In that edition, Section 8.62 added a new requirement that moisture barriers must pass an “ultraviolet (UV) light degradation test”. As explained in the complaint:
- Section No. 8.62, first implemented in the 2007 edition of NFPA 1971, imposes criteria which effectively require the use of per- and polyfluoroalkyl substances (“PFAS”), including but not limited to polytetrafluoroethylene, or “PTFE,” in fire fighters’ bunker gear.
- Section No. 8.62 currently necessitates the use of PFAS in the middle moisture barrier layer of fire fighters’ bunker gear ostensibly in order to satisfy the ultraviolet (UV) light degradation test. However, the time of exposure to xenon-sourced UV light in Section No. 8.62 was deliberately chosen: a shorter exposure time would allow numerous other materials to pass, but a longer exposure time would allow no materials to pass. The set 40 hours is the threshold where only PFAS passes.
- UV light degradation is not a testing requirement for the outer shell of the ensemble, which is the only layer exposed to UV light during the course of the product’s normal use.
- NFPA 1971 Section No. 8.62 is a UV light degradation test methodology for moisture barriers, the middle of three layers in fire fighters’ bunker gear, which is sandwiched between the middle liner and outer shell.
- Section No. 8.62 is an arbitrary and unreasonable standard that requires bunker gear’s middle moisture barrier layer, which is not exposed to light, to undergo UV light degradation testing, while not requiring such testing for the outer shells.
- PFAS have been associated with multiple and serious adverse health effects in humans including cancer, tumors, liver damage, immune system and endocrine disorders, high cholesterol, thyroid disease, ulcerative colitis, birth defects, decreased fertility, and pregnancy induced hypertension.
- PFAS have also been found to concentrate in human blood, bones and organs and, more recently, to reduce the effectiveness of vaccines, a significant concern in light of COVID-19 and the occupational risk thereof for the members of the IAFF.
- Section 8.62’s criteria necessitates the use of PTFE, a fluoropolymer and type of PFAS, known to degrade into toxic, carcinogenic compounds in the moisture barriers for fire fighters’ bunker gear, and by specifically hindering and impeding the development and use by fire fighters of PFAS-free bunker gear.
Section 8.62 was originally added in an effort to reduce the premature failure of moisture barriers. According to the complaint, it was premised on a masters level thesis written by a student at University of Kentucky. The IAFF questions the reliability of that research, stating “Section No. 8.62’s UV light test was initially implemented in NFPA 1971 without adequate scientific justification, and that the ongoing use of that test is unwarranted.”
In 2021, the IAFF submitted a request to the NFPA to delete the UV light degradation test through the issuance of a tentative interim amendment (TIA). This step would have allowed PPE manufacturers to being using non-PFAS containing moisture barriers in new turnout gear. However, according to the complaint, both the technical committee responsible for NFPA 1971 and its correlating committee, denied the TIA. Quoting from the complaint:
- On August 12, 2021, NFPA’s Technical Committee and its Correlating Committee on Fire and Emergency Services Protective Clothing and Equipment (“Correlating Committee”) both rejected TIA 1594.
- Significantly, the most vocal opponent of TIA 1594 on the Technical Committee was Karen Lehtonen, Lion’s VP of Innovation and Management.
- NFPA’s Correlating Committee rejected TIA 1594 both on (1) the issue of correlation (i.e. conflict) with other NFPA standards, and (2) on the emergency nature of the amendment. Eight members of the NFPA’s Correlating Committee are also Technical Committee members, including Karen Lehtonen.
- Just as she was with the Technical Committee, Ms. Lehtonen was the most vocal opponent of TIA 1594 on NFPA’s Correlating Committee.
The IAFF is seeking an injunction against the NFPA from “maintaining or enforcing” Section 8.62 of NFPA 1971, as well as damages, costs and attorneys fees.
Here is a copy of the complaint: