§ 23-18.18-5. Ban in firefighting foam.
(a) For the purposes of this section, the following terms shall have the following meanings:
(1) "Class B firefighting foam� means foams designed for flammable liquid fires.
(2) "Firefighting personal protective equipment� means any clothing designed, intended,
or marketed to be worn by firefighting personnel in the performance of their duties,
designed with the intent for the use in fire and rescue activities, including jackets,
pants, shoes, gloves, helmets, and respiratory equipment.
(3) "Local government� means any county, city, town, fire district, regional fire protection
authority, or other special purpose district that provides firefighting services.
(4) "Terminal� means an establishment primarily engaged in the wholesale distribution
of crude petroleum and petroleum products, including liquefied petroleum gas from
bulk liquid storage facilities.
(b) Beginning January 1, 2025, a person, local government, or state agency may not discharge
or otherwise use for training purposes class B firefighting foam that contains intentionally
added PFAS chemicals.
(c) Beginning January 1, 2025, a manufacturer of class B firefighting foam may not manufacture,
knowingly sell, offer for sale, distribute for sale, or distribute for use or use
in this state class B firefighting foam to which PFAS have been intentionally added.
(d) The restrictions in subsections (b) and (c) of this section do not apply to any manufacture,
sale, or distribution 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. §â€‰ 139.317, as that section existed as of January 1, 2022. In the event that applicable federal
regulations change after January 1, 2022, to allow the use of alternative firefighting
agents that do not contain PFAS chemicals, the restrictions set forth in subsection
(b) of this section shall apply.
(1) A person that uses class B firefighting foam containing PFAS chemicals pursuant to
subsection (d) of this section shall report the use of the foam to the state fire
marshal within five (5) business days of the use, including the identity of the foam,
the quantity used, the total PFAS concentration, the application for which the foam
was used, and the duration of the fire.
(2) A person that uses class B firefighting foam containing PFAS chemicals pursuant to
subsection (d) of this section shall do all of the following:
(i) Allow no release directly to the environment, such as to unsealed ground, soakage
pits, waterways, or uncontrolled drains;
(ii) Fully contain all releases onsite;
(iii) Implement containment measures such as bunds and ponds that are controlled, impervious
to PFAS, and do not allow firewater, wastewater, runoff, and other wastes to be released
to the environment, such as to soils, groundwater, waterways, or stormwater;
(iv) Dispose of all firewater, wastewater, runoff, and other wastes in a way that prevents
releases to the environment;
(v) If there is a release to the environment, report the identity of the foam, the quantity
used, the total PFAS concentration, and the form of any waste that contains PFAS chemicals
that is released into the environment to the state fire marshal within five (5) business
days of the release; and
(vi) Document the measures undertaken pursuant to this subsection. In investigating compliance
with this subsection, the attorney general, a city attorney, or a city or town solicitor
may request the documentation.
(e) A person operating a terminal after January 1, 2025, and who seeks to purchase class
B firefighting foam containing intentionally added PFAS for the purpose of fighting
emergency class B fires, may apply to the department for a temporary exemption from
the restrictions on the manufacture, sale, offer for sale, or distribution of class
B firefighting foam for use at a terminal. An exemption shall not exceed one year.
The department of environmental management, in consultation with the department of
health, may grant an exemption under this subsection if the applicant provides:
(1) Clear and convincing evidence that there is not a commercially available alternative
that:
(i) Does not contain intentionally added PFAS; and
(ii) Is capable of suppressing a large atmospheric tank fire or emergency class B fire
at the terminal;
(2) Information on the amount of class B firefighting foam containing intentionally added
PFAS that is annually stored, used, or released at the terminal;
(3) A report on the progress being made by the applicant to transition at the terminal
to class B firefighting foam that does not contain intentionally added PFAS; and
(4) An explanation of how:
(i) All releases of class B firefighting foam containing intentionally added PFAS shall
be fully contained at the terminal; and
(ii) Existing containment measures prevent firewater, wastewater, runoff, and other wastes
from being released into the environment, including into soil, groundwater, waterways,
and stormwater.
(f) Nothing in this section shall prohibit a terminal from providing class B firefighting
foam in the form of aid to another terminal in the event of a class B fire.
(g) A manufacturer of class B firefighting foam restricted under subsection (c) of this
section must notify, in writing, persons that sell the manufacturer's products in
this state about the provisions of this chapter no less than one year prior to the
effective date of the restrictions.
(h) A manufacturer that produces, sells, or distributes a class B firefighting foam prohibited
under subsection (c) of this section shall recall the product and reimburse the retailer
or any other purchaser for the product by March 1, 2025, and shall reimburse the retailer
or any other purchaser for the product. A recall of the product shall include safe
transport and storage and documentation of the amount and storage location of the
PFAS-containing firefighting foam, until the department formally identifies a safe
disposal technology. The manufacturer shall provide this documentation to the attorney
general, or city or town solicitor upon request.
(i) The department may request a certificate of compliance from a manufacturer of class
B firefighting foam, or firefighting personal protective equipment sold in this state.
A certificate of compliance attests that a manufacturer's product or products meets
the requirements of this chapter. If the department requests such a certificate, the
manufacturer shall provide the certificate within thirty (30) calendar days after
the request is made.
(j) The department shall assist state agencies, fire protection districts, and other local
governments to avoid purchasing or using class B firefighting foams to which PFAS
chemicals have been intentionally added.
(k) A manufacturer of class B firefighting foam in violation of this chapter is subject
to a civil penalty not to exceed five thousand dollars ($5,000) for each violation
in the case of a first offense. Manufacturers, local governments, or persons that
are repeat violators are subject to a civil penalty not to exceed ten thousand dollars
($10,000) for each repeat offense.
(l)(1) Beginning January 1, 2025, a manufacturer or other person that sells firefighting
personal protective equipment to any person, local government, or state agency must
provide written notice to the purchaser at the time of sale if the firefighting personal
protective equipment contains any PFAS. The written notice must include a statement
that the firefighting personal protective equipment contains PFAS chemicals and the
reason PFAS chemicals are added to the equipment.
(2) Beginning January 1, 2027, a manufacturer or other person that sells firefighting
personal protective equipment to any person, local government, or state agency shall
not manufacture, knowingly sell, offer for sale, distribute for sale, or distribute
for use in the state any firefighting personal protective equipment containing intentionally-added
PFAS.
(m) The department shall assist state agencies, fire protection districts, and other local
governments to give priority and preference to the purchase of firefighting personal
protective equipment that does not contain PFAS.
(n) The manufacturer or person selling firefighting personal protective equipment and
the purchaser of the equipment must retain the notice on file for at least three (3)
years from the date of the transaction. Upon the request of the department, a person,
manufacturer, or purchaser must furnish the notice, or written copies, and associated
sales documentation to the department within sixty (60) days.