S T A T E O F N E W Y O R K
________________________________________________________________________
3852--A
Cal. No. 329
2025-2026 Regular Sessions
I N S E N A T E
January 30, 2025
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Introduced by Sens. HINCHEY, JACKSON -- read twice and ordered printed,
and when printed to be committed to the Committee on Environmental
Conservation -- reported favorably from said committee, ordered to
first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
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 SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
ING 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.
(F) "INTENTIONALLY ADDED" MEANS A CHEMICAL IN A PRODUCT THAT SERVES AN
INTENDED FUNCTION OR TECHNICAL EFFECT IN THE PRODUCT OR PRODUCT COMPO-
NENT, INCLUDING PFAS WITHIN INTENTIONALLY ADDED CHEMICALS AND PFAS THAT
ARE INTENTIONAL BREAKDOWN PRODUCTS OF AN ADDED CHEMICAL THAT ALSO HAVE A
FUNCTIONAL OR TECHNICAL EFFECT IN THE PRODUCT OR PRODUCT COMPONENT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08124-02-5
S. 3852--A 2
2. COMMENCING ON JANUARY FIRST, TWO THOUSAND TWENTY-SEVEN, 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
(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-SEVEN.
§ 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.
