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This entry was published on 2020-05-01
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SECTION 391-U*2
Restrictions on the sale and use of firefighting equipment containing PFAS chemicals
General Business (GBS) CHAPTER 20, ARTICLE 26
* § 391-u. Restrictions on the sale and use of firefighting equipment
containing PFAS chemicals. 1. As used in this section, unless the
context clearly requires otherwise:

(a) "Class B firefighting foam" means foams designed to prevent or
extinguish ignitable liquid fires.

(b) "Ignitable liquid fire" means any fire involving a flammable or
combustible liquid where blanketing and smothering for vapor suppression
is needed to extinguish the fire.

(c) "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
firefighting and rescue activities, including jackets, pants, shoes,
gloves, helmets, and respiratory equipment.

(d) "Local governments" includes any county, city, town, village, fire
district, fire company as defined in section two hundred four-a of the
general municipal law, regional fire protection authority, or other
special purpose district that provides firefighting services.

(e) "Manufacturer" includes any person, firm, association,
partnership, corporation, organization, joint venture, importer or
domestic distributor of firefighting agents or firefighting equipment.

(f) "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.

(g) "Person" means any individual, partnership, association, public or
private corporation, limited liability company or any other type of
legal or commercial entity, including their members, managers, partners,
directors, or officers.

2. No person or state agency shall discharge or otherwise use for
training purposes class B firefighting foam that contains intentionally
added perfluoroalkyl and polyfluoroalkyl substances (PFAS chemicals).

3. (a) Commencing two years after the effective date of this section,
no manufacturer of class B firefighting foam may manufacture, 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 except as provided in paragraph (b) of this
subdivision.

(b) The restrictions in paragraph (a) of this subdivision shall not
apply to the manufacture, sale, or distribution of class B firefighting
foam:

(1) For use in suppressing or preventing an ignitable liquid fire
where the office of fire prevention and control, in consultation with
the department of environmental conservation and the department of
health, through promulgation of a rule, exempts a use of class B
firefighting foam on the basis that an alternative firefighting agent to
which PFAS chemicals have not been intentionally added and that is
effective in suppressing or preventing an ignitable liquid fire is not
available. If the office of fire prevention and control exempts a use of
class B firefighting foam from the restrictions in paragraph (a) of this
subdivision, it shall re-evaluate available alternative firefighting
agents at least every two years as long as the exemption remains in
place, and repeal such exemption upon a finding that an alternative
firefighting agent to which PFAS chemicals have not been intentionally
added is available that is effective in suppressing or preventing an
ignitable liquid fire.

(2) Where the inclusion of PFAS chemicals are required by federal law
or regulations. In the event that applicable federal laws or regulations
change after the effective date of this section to allow the use of
effective alternative firefighting agents that do not contain PFAS
chemicals, the office of fire prevention and control may adopt rules
that restrict PFAS chemicals for the manufacture, sale, and distribution
of firefighting foam for uses that are addressed by the federal law or
regulation.

4. (a) A manufacturer of class B firefighting foam restricted under
subdivision three of this section shall notify, in writing, persons that
sell the manufacturer's products in this state about the provisions of
this section no less than one year prior to the implementation date of
the restrictions set forth in subdivision three of this section.

(b) A manufacturer that produces, sells, or distributes a class B
firefighting foam prohibited under subdivision three of this section
shall recall the product, which includes collection, transport,
treatment, storage and safe disposal, after the implementation date of
the restrictions set forth in subdivision three of this section and
reimburse the retailer or any other purchaser for the product.

5. (a) 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 PFAS chemicals. 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.

(b) 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 years from the date of the
transaction.

6. The office of fire prevention and control may issue guidance to
state agencies, fire protection districts and local governments in
avoiding the purchase or use of class B firefighting foams to which PFAS
chemicals have been intentionally added and to give priority and
preference to the purchase of firefighting personal protective equipment
that does not contain PFAS chemicals.

7. Any manufacturer or person in violation of the provisions of this
section shall be subject to a civil penalty not to exceed five thousand
dollars for each violation in the case of a first offense. Manufacturers
or persons that are repeat violators of the provisions of this section
shall be subject to a civil penalty not to exceed ten thousand dollars
for each repeat offense. Penalties collected under this section shall be
deposited in the hazardous waste remedial fund created by section
ninety-seven-b of the state finance law.

* NB There are 2 § 391-u's