§ 154:8-b — Certain Chemicals Prohibited in Firefighting Foam

New Hampshire § 154:8-b

• Jurisdiction: New Hampshire
• Title XII: PUBLIC SAFETY AND WELFARE
• Ch. 154: FIREWARDS, FIREFIGHTERS, AND FIRE HAZARDS
• Subdivision: Firewards, Fire Chiefs and Fire Departments; Organization, Powers and Duties

Text

I. In this section:
(a) "Chemical plant" means chemical plants, refineries, and re-refineries.
(b) "Class B firefighting foam" means foam designed for flammable liquid fires.
(c) "Department" means the department of environmental services.
(d) "Legacy foams" mean firefighting foams manufactured prior to January 1, 2004, containing perfluorooctanesulfonic acid and/or perfluorooctanoic acid-related long chain PFAS chemicals.
(e) "Manufacturer" includes any person, firm, association, partnership, corporation, organization, joint venture, importer, or domestic manufacturer or distributor of firefighting agents or firefighting equipment. For the purposes of this section, "importer" means the owner of the product.
(f) "Municipalities" means any county, city, town, fire district, regional fire district, or other special purpose district that provides firefighting services.
(g) "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS chemicals" means, for the purposes of firefighting agents and firefighting equipment, a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(h) "Testing" includes calibration testing, conformance testing, and fixed system testing.
II. Beginning on January 1, 2020, no person, local government, or state agency shall discharge or otherwise use for training or testing purposes class B firefighting foam to which PFAS chemicals have been intentionally added. However, the testing of class B firefighting foam to which PFAS chemicals have been intentionally added may occur if the department has evaluated the testing facility for containment, treatment, and disposal measures to prevent uncontrolled release of foam to the environment.
III. Beginning January 1, 2020, a manufacturer of class B firefighting foam shall not knowingly sell, offer for sale, distribute for sale, or distribute for use in this state class B firefighting foam to which PFAS chemicals have been intentionally added. However:
(a) The restrictions in this paragraph shall not apply to any sale or use of class B firefighting foam where the inclusion of PFAS chemicals are required by federal law, including but not limited to the requirements of 14 C.F.R. section 139.317, as that section existed as of January 1, 2018. In the event that applicable federal regulations change after January 1, 2018, to allow the use of alternative firefighting agents that do not contain PFAS chemicals, the department may adopt rules for the sale and uses of firefighting foam that are addressed by the federal regulation that restrict the use of firefighting foam that contains PFAS chemicals.
(b) The restrictions under this paragraph shall not apply to any sale or distribution of class B firefighting foam to which PFAS chemicals have been intentionally added for use at a chemical plant.
(c) The restrictions under this paragraph shall not apply to any sale or distribution of class B firefighting foam to which PFAS chemicals have been intentionally added for use at a storage or distribution facility, tank farm, or terminal for flammable liquids.
IV. The manufacturer that produces, sells, or distributes a class B firefighting foam to which PFAS chemicals have been intentionally added following the effective date of this section shall recall the product and reimburse the retailer or any other purchaser for the product.
V. A manufacturer of class B firefighting foam in violation of paragraph III shall be subject to an administrative fine not to exceed $5,000 for each violation in the case of a first offense. Manufacturers or persons that are repeat violators shall be subject to an administrative fine not to exceed $10,000 for each repeat offense.
VI. A manufacturer of class B firefighting foam restricted under paragraph III shall notify, in writing, persons that sell the manufacturer's products in this state about the provisions of this chapter no less than one year after the effective date of the restrictions.
VII. The department shall assist other state agencies, fire protection districts, and other municipalities in avoiding purchasing or using firefighting agents containing PFAS chemicals, as required under paragraph III.
VIII. The department shall survey municipalities throughout the state on the quantitative stock of legacy foams and determine the cost of instituting a take-back program for the purpose of safe and contained disposal. The development and processing of the survey shall be subject to rules adopted by the commissioner of the department of environmental services pursuant to RSA 541-A. On or before December 1, 2020, the department shall submit a report of its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, and the state library. Beginning on July 1, 2023, the department shall institute a take-back program of legacy foams for the purpose of safe and contained disposal.
IX. Fire departments which use remaining class B firefighting foam to which PFAS chemicals have been intentionally added shall be immune from civil or criminal damages only if such foam is discharged in an emergency situation.
X. Nothing in this section shall be construed to create a new civil or criminal right of action against a fire department if class B firefighting foam to which PFAS chemicals have been added has been discharged either unintentionally or in an emergency situation.
XI. Any time a class B firefighting foam to which PFAS chemicals have been intentionally added is discharged, the municipality making such discharge shall notify the department of environmental services within 48 hours of such discharge.

Legislative History

2019, 337:1, eff. Sept. 3, 2019. 2021, 208:2, Pt. II, Sec. 1, eff. Aug. 10, 2021.