§ 391-U*2 — Restrictions on the sale and use of firefighting equipment containing PFAS chemicals

* § 391-u. Restrictions on the sale and use of firefighting equipment\ncontaining PFAS chemicals. 1. As used in this section, unless the\ncontext clearly requires otherwise:\n (a) "Class B firefighting foam" means foams designed to prevent or\nextinguish ignitable liquid fires.\n (b) "Ignitable liquid fire" means any fire involving a flammable or\ncombustible liquid where blanketing and smothering for vapor suppression\nis needed to extinguish the fire.\n (c) "Firefighting personal protective equipment" means any clothing\ndesigned, intended, or marketed to be worn by firefighting personnel in\nthe performance of their duties, designed with the intent for the use in\nfirefighting and rescue activities, including jackets, pants, shoes,\ngloves, helmets, and respiratory equipment.\n (d) "Local governments" includes any county, city, town, village, fire\ndistrict, fire company as defined in section two hundred four-a of the\ngeneral municipal law, regional fire protection authority, or other\nspecial purpose district that provides firefighting services.\n (e) "Manufacturer" includes any person, firm, association,\npartnership, corporation, organization, joint venture, importer or\ndomestic distributor of firefighting agents or firefighting equipment.\n (f) "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS\nchemicals" means, for the purposes of firefighting agents and\nfirefighting equipment, a class of fluorinated organic chemicals\ncontaining at least one fully fluorinated carbon atom.\n (g) "Person" means any individual, partnership, association, public or\nprivate corporation, limited liability company or any other type of\nlegal or commercial entity, including their members, managers, partners,\ndirectors, or officers.\n (h) "Intentionally added" shall have the same meaning as\n"intentionally added chemical" set forth in subdivision four of section\n37-0121 of the environmental conservation law.\n 2. No person or state agency shall discharge or otherwise use for\ntraining purposes class B firefighting foam that contains intentionally\nadded perfluoroalkyl and polyfluoroalkyl substances (PFAS chemicals).\n 3. (a) Commencing two years after the effective date of this section,\nno manufacturer of class B firefighting foam may manufacture, knowingly\nsell, offer for sale, distribute for sale, or distribute for use in this\nstate class B firefighting foam to which PFAS chemicals have been\nintentionally added except as provided in paragraph (b) of this\nsubdivision.\n (b) The restrictions in paragraph (a) of this subdivision shall not\napply to the manufacture, sale, or distribution of class B firefighting\nfoam:\n (1) For use in suppressing or preventing an ignitable liquid fire\nwhere the office of fire prevention and control, in consultation with\nthe department of environmental conservation and the department of\nhealth, through promulgation of a rule, exempts a use of class B\nfirefighting foam on the basis that an alternative firefighting agent to\nwhich PFAS chemicals have not been intentionally added and that is\neffective in suppressing or preventing an ignitable liquid fire is not\navailable. If the office of fire prevention and control exempts a use of\nclass B firefighting foam from the restrictions in paragraph (a) of this\nsubdivision, it shall re-evaluate available alternative firefighting\nagents at least every two years as long as the exemption remains in\nplace, and repeal such exemption upon a finding that an alternative\nfirefighting agent to which PFAS chemicals have not been intentionally\nadded is available that is effective in suppressing or preventing an\nignitable liquid fire.\n (2) Where the inclusion of PFAS chemicals are required by federal law\nor regulations. In the event that applicable federal laws or regulations\nchange after the effective date of this section to allow the use of\neffective alternative firefighting agents that do not contain PFAS\nchemicals, the office of fire prevention and control may adopt rules\nthat restrict PFAS chemicals for the manufacture, sale, and distribution\nof firefighting foam for uses that are addressed by the federal law or\nregulation.\n 4. (a) A manufacturer of class B firefighting foam restricted under\nsubdivision three of this section shall notify, in writing, persons that\nsell the manufacturer's products in this state about the provisions of\nthis section no less than one year prior to the implementation date of\nthe restrictions set forth in subdivision three of this section.\n (b) A manufacturer that at any time manufactured, sold, offered for\nsale, or distributed for sale or use a class B firefighting foam\nprohibited under subdivision three of this section shall recall such\nproduct. Such recall shall include collection, transport, treatment,\nstorage and safe disposal of PFAS chemicals, and reimbursement of the\nretailer or any other purchaser for such product.\n 5. * (a) A manufacturer or other person that sells firefighting\npersonal protective equipment to any person, local government, or state\nagency must provide written notice to the purchaser at the time of sale\nif the firefighting personal protective equipment contains PFAS\nchemicals. The written notice must include a statement that the\nfirefighting personal protective equipment contains PFAS chemicals and\nthe reason PFAS chemicals are added to the equipment.\n * NB Effective until January 1, 2028\n * (a) A manufacturer or other person that sells firefighting personal\nprotective equipment to any person, local government, or state agency\nmust provide written notice to the purchaser at the time of sale if the\nfirefighting personal protective equipment contains PFAS chemicals. The\nwritten notice must include a statement that the firefighting personal\nprotective equipment contains PFAS chemicals.\n * NB Effective January 1, 2028\n (b) The manufacturer or person selling firefighting personal\nprotective equipment and the purchaser of the equipment must retain the\nnotice on file for at least three years from the date of the\ntransaction.\n (c) Beginning January first, two thousand twenty-eight, a manufacturer\nshall not manufacture, knowingly sell, offer for sale, distribute for\nsale or distribute for use in the state any firefighting personal\nprotective equipment to which PFAS chemicals have been intentionally\nadded or that contains PFAS chemicals at or above a level established by\nthe department of environmental conservation by regulation.\n 6. The office of fire prevention and control may issue guidance to\nstate agencies, fire protection districts and local governments in\navoiding the purchase or use of class B firefighting foams to which PFAS\nchemicals have been intentionally added and to give priority and\npreference to the purchase of firefighting personal protective equipment\nthat does not contain PFAS chemicals.\n 7. Any manufacturer or person in violation of the provisions of this\nsection shall be subject to a civil penalty not to exceed five thousand\ndollars for each violation in the case of a first offense. Manufacturers\nor persons that are repeat violators of the provisions of this section\nshall be subject to a civil penalty not to exceed ten thousand dollars\nfor each repeat offense. Penalties collected under this section shall be\ndeposited in the hazardous waste remedial fund created by section\nninety-seven-b of the state finance law.\n * NB There are 2 § 391-u's\n