Senate Bill S8932A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8932--A
 
                             I N  S E N A T E
 
                               April 1, 2024
                                ___________
 
 Introduced  by  Sen. HINCHEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Environmental Conservation
   -- reported favorably from said committee and committed to the Commit-
   tee  on  Finance  --  committee  discharged,  bill  amended,   ordered
   reprinted as amended and recommitted to said committee

 AN  ACT  to amend the environmental conservation law, in relation to the
   regulation of toxic substances in playground surfacing materials
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The environmental conservation law is amended by adding a
 new section 37-0123 to read as follows:
 § 37-0123. REGULATION OF TOXIC SUBSTANCES IN PLAYGROUND SURFACING  MATE-
              RIALS.
   1. AS USED IN THIS TITLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS:
   (A)  "PLAYGROUND  SURFACING  MATERIALS"  MEANS PRODUCTS, MATERIALS, OR
 SUBSTANCES USED OR INSTALLED ON THE GROUND SURFACE OF A PLAYGROUND.
   (B)  "PLAYGROUND"  MEANS  AN  OUTDOOR  RECREATION  AREA  FOR  CHILDREN
 EQUIPPED WITH ONE OR MORE PLAY STRUCTURES.
   (C)  "MANUFACTURER"    MEANS THE PERSON THAT MANUFACTURES A PRODUCT OR
 WHOSE BRAND NAME IS AFFIXED TO THE PRODUCT. IN THE  CASE  OF  A  PRODUCT
 IMPORTED INTO THE UNITED STATES, "MANUFACTURER" INCLUDES THE IMPORTER OR
 FIRST  DOMESTIC  DISTRIBUTOR  OF THE PRODUCT IF THE PERSON THAT MANUFAC-
 TURED OR ASSEMBLED THE PRODUCT OR WHOSE BRAND NAME  IS  AFFIXED  TO  THE
 PRODUCT DOES NOT HAVE A PRESENCE IN THE UNITED STATES.
   (D)  "PFAS"  MEANS  PERFLUOROALKYL  AND POLYFLUOROALKYL SUBSTANCES AND
 INCLUDES ANY MEMBER  OF  THE  CLASS  OF  FLUORINATED  ORGANIC  CHEMICALS
 CONTAINING AT LEAST ONE FULLY FLOURISHED CARBON ATOM.
   (E) "PAHS" MEANS POLYCYCLIC AROMATIC HYDROCARBONS.
   2.  COMMENCING  ON  JANUARY  FIRST, TWO THOUSAND TWENTY-SIX, NO PERSON
 SHALL SELL OR OFFER FOR SALE IN  THIS  STATE  ANY  PLAYGROUND  SURFACING
 MATERIAL THAT CONTAINS PFAS, PAHS, OR LEAD:
   (A) THAT HAS BEEN INTENTIONALLY ADDED; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14813-04-4
              

 S. 8932--A                          2
 
   (B)  AT  OR ABOVE A LEVEL THAT THE DEPARTMENT SHALL ESTABLISH BY REGU-
 LATION THAT IS THE LOWEST LEVEL THAT CAN FEASIBLY BE ACHIEVED; PROVIDED,
 HOWEVER, THAT THE DEPARTMENT SHALL REVIEW SUCH  LEVELS  AT  LEAST  EVERY
 FIVE YEARS TO DETERMINE WHETHER THEY SHOULD BE LOWERED; PROVIDED, HOWEV-
 ER, THAT IN NO EVENT SHALL SUCH LEVEL FOR LEAD BE MORE THAN NINETY PARTS
 PER MILLION.
   3.  (A)  A  MANUFACTURER  OF PLAYGROUND SURFACING MATERIALS SOLD  INTO
 THE STATE  SHALL PROVIDE  PERSONS  THAT OFFER THE PRODUCT  FOR  SALE  IN
 THE STATE WITH A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE  OF  COMPLI-
 ANCE  SHALL  PROVIDE  ASSURANCE,  AT  A  MINIMUM, THAT THE PRODUCT IS IN
 COMPLIANCE WITH THE REQUIREMENTS OF SUBDIVISION TWO OF THIS SECTION. ANY
 CERTIFICATE OF COMPLIANCE PROVIDED UNDER THIS SECTION SHALL BE SIGNED BY
 AN AUTHORIZED OFFICIAL OF THE MANUFACTURER.
   (B) IN ADDITION TO ANY OTHER  APPLICABLE  PENALTIES,  IT  SHALL  BE  A
 VIOLATION  OF  THIS TITLE TO PROVIDE A CERTIFICATE OF  COMPLIANCE  UNDER
 PARAGRAPH (A) OF  THIS  SUBDIVISION  WHEN  A  PRODUCT  IS  KNOWINGLY  IN
 VIOLATION OF THE REQUIREMENTS OF THIS SECTION.
   4.  IF THE DEPARTMENT HAS REASON TO BELIEVE PLAYGROUND SURFACING MATE-
 RIALS BEING SOLD OR OFFERED FOR SALE THAT HAVE NOT BEEN INSTALLED  IN  A
 PLAYGROUND  ARE  NOT  IN COMPLIANCE WITH THE REQUIREMENTS OF SUBDIVISION
 TWO OF THIS SECTION, THE DEPARTMENT SHALL NOTIFY THE MANUFACTURER OF THE
 PLAYGROUND SURFACING MATERIALS, WHO SHALL, WITHIN THIRTY DAYS:
   (A) PROVIDE THE DEPARTMENT WITH  INDEPENDENT,  THIRD-PARTY  LABORATORY
 TEST  RESULTS  DEMONSTRATING THAT THE PLAYGROUND SURFACING MATERIALS ARE
 IN COMPLIANCE WITH SUBDIVISION TWO OF THIS SECTION; OR
   (B) NOTIFY PERSONS WHO SELL THE PLAYGROUND SURFACING MATERIALS IN THIS
 STATE THAT THE SALE OF THE PLAYGROUND SURFACING MATERIALS IS  PROHIBITED
 IN  THIS  STATE  AND PROVIDE THE DEPARTMENT WITH A LIST OF THE NAMES AND
 ADDRESSES OF THOSE NOTIFIED.
   5. A RETAILER OF A PRODUCT, WHO IS NOT ALSO THE  MANUFACTURER  OF  THE
 PRODUCT,  SHALL  NOT  BE  HELD  IN  VIOLATION OF SUBDIVISION TWO OF THIS
 SECTION IF IT CAN SHOW THAT SUCH RETAILER RELIED IN GOOD  FAITH  ON  THE
 CERTIFICATE  OF  COMPLIANCE  PROVIDED  FOR  IN SUBDIVISION THREE OF THIS
 SECTION.
   6. NO PART OF THIS TITLE SHALL BE CONSIDERED TO APPLY TO, REQUIRE  THE
 RECALL  OF, OR REQUIRE REIMBURSEMENT FOR, PLAYGROUND SURFACING MATERIALS
 THAT HAVE BEEN SOLD OR OFFERED FOR SALE  PRIOR  TO  JANUARY  FIRST,  TWO
 THOUSAND TWENTY-SIX.
   § 2. Section 71-3703 of the environmental conservation law is  amended
 by adding a new subdivision 8 to read as follows:
   8.  ANY  PERSON WHO VIOLATES ANY OF THE PROVISIONS OF, OR WHO FAILS TO
 PERFORM ANY DUTY IMPOSED BY SECTION 37-0123 OF THIS CHAPTER OR ANY  RULE
 OR  REGULATION PROMULGATED PURSUANT THERETO, SHALL BE LIABLE FOR A CIVIL
 PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS FOR EACH DAY, AND IN ADDITION
 THERETO, SUCH PERSON MAY BE ENJOINED  FROM  CONTINUING  SUCH  VIOLATION.
 SUCH  PERSON SHALL FOR A SECOND VIOLATION BE LIABLE TO THE PEOPLE OF THE
 STATE FOR A CIVIL PENALTY  NOT  TO  EXCEED  TWO  THOUSAND  FIVE  HUNDRED
 DOLLARS.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.