S T A T E O F N E W Y O R K
________________________________________________________________________
445--A
2019-2020 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2019
___________
Introduced by M. of A. STECK, BUCHWALD, GLICK, GOTTFRIED, THIELE,
L. ROSENTHAL, ABINANTI, ENGLEBRIGHT, JACOBSON, D'URSO, COLTON,
EPSTEIN, ORTIZ, McDONALD, SIMON, DeSTEFANO, RAIA, GALEF, FERNANDEZ,
JAFFEE, DINOWITZ, MAGNARELLI, LUPARDO, LIFTON, MONTESANO, SCHMITT --
read once and referred to the Committee on Governmental Operations --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the executive law, in relation to reducing the use of
PFAS chemicals in firefighting activities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The executive law is amended by adding a new section 159-b
to read as follows:
§ 159-B. RESTRICTIONS ON THE USE OF FIREFIGHTING EQUIPMENT CONTAINING
PFAS CHEMICALS. 1. AS USED IN THIS SECTION, UNLESS THE CONTEXT CLEARLY
REQUIRES OTHERWISE:
(A) "CHEMICAL PLANT" MEANS A LARGE INTEGRATED PLANT OR THAT PORTION OF
SUCH A PLANT OTHER THAN A REFINERY OR DISTILLERY WHERE FLAMMABLE LIQUIDS
ARE PRODUCED BY CHEMICAL REACTIONS OR USED IN CHEMICAL REACTIONS.
(B) "CLASS B FIREFIGHTING FOAM" MEANS FOAMS DESIGNED TO EXTINGUISH
FLAMMABLE LIQUID FIRES.
(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, FIRE
DISTRICT, REGIONAL FIRE PROTECTION AUTHORITY, OR OTHER SPECIAL PURPOSE
DISTRICT THAT PROVIDES FIREFIGHTING SERVICES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03612-03-9
A. 445--A 2
(E) "MANUFACTURER" INCLUDES ANY PERSON, FIRM, ASSOCIATION, PARTNER-
SHIP, CORPORATION, ORGANIZATION, JOINT VENTURE, IMPORTER OR DOMESTIC
DISTRIBUTOR OF FIREFIGHTING AGENTS OR FIREFIGHTING EQUIPMENT.
(F) "PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES" OR "PFAS CHEMI-
CALS" 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.
(H) "TERMINAL" MEANS A FUEL STORAGE AND DISTRIBUTION FACILITY THAT HAS
BEEN ASSIGNED A TERMINAL CONTROL NUMBER BY THE INTERNAL REVENUE SERVICE.
2. NO PERSON, LOCAL GOVERNMENT, OR STATE AGENCY MAY 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 PERFLUOROALKYL AND POLYFLUORO-
ALKYL SUBSTANCES (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) TO A PERSON FOR USE AT A TERMINAL OPERATED BY THE PERSON OR AN OIL
REFINERY OPERATED BY THE PERSON;
(2) TO A PERSON FOR USE AT A CHEMICAL PLANT OPERATED BY THE PERSON;
(3) TO A FIRE DEPARTMENT, FOR A PERIOD NOT TO EXCEED FIVE YEARS AFTER
THE EFFECTIVE DATE OF THIS SECTION, FOR USE BY SUCH DEPARTMENT SOLELY IN
EMERGENCY SITUATIONS FOR THE PURPOSE OF FIGHTING LARGE-SCALE FIRES
CAUSED BY COMBUSTIBLE LIQUIDS WHICH OCCUR:
(I) AT A TERMINAL, OIL REFINERY, CHEMICAL PLANT, OR DEDICATED FUEL
STORAGE FACILITY; OR
(II) DURING THE PROCESS OF TRANSPORTING SUCH LIQUIDS; OR
(4) WHERE THE INCLUSION OF PFAS CHEMICALS ARE REQUIRED BY FEDERAL LAW,
INCLUDING BUT NOT LIMITED TO THE REQUIREMENTS OF 1421 C.F.R. 139.317, AS
THAT SECTION EXISTS AS OF THE EFFECTIVE DATE OF THIS SECTION. IN THE
EVENT THAT APPLICABLE FEDERAL REGULATIONS CHANGE AFTER THE EFFECTIVE
DATE OF THIS SECTION TO ALLOW THE USE OF 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 MANUFAC-
TURE, SALE, AND DISTRIBUTION OF FIREFIGHTING FOAM FOR USES THAT ARE
ADDRESSED BY THE FEDERAL REGULATION.
(C) (1) A MANUFACTURER OF CLASS B FIREFIGHTING FOAM RESTRICTED UNDER
THIS SUBDIVISION 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 THIS SUBDIVISION.
(2) A MANUFACTURER THAT PRODUCES, SELLS, OR DISTRIBUTES A CLASS B
FIREFIGHTING FOAM PROHIBITED UNDER THIS SUBDIVISION SHALL RECALL THE
PRODUCT PRIOR TO THE IMPLEMENTATION DATE OF THE RESTRICTIONS SET FORTH
IN THIS SUBDIVISION AND REIMBURSE THE RETAILER OR ANY OTHER PURCHASER
FOR THE PRODUCT.
A. 445--A 3
4. (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 CHEMI-
CALS ARE ADDED TO THE EQUIPMENT.
(B) THE MANUFACTURER OR PERSON SELLING FIREFIGHTING PERSONAL PROTEC-
TIVE EQUIPMENT AND THE PURCHASER OF THE EQUIPMENT MUST RETAIN THE NOTICE
ON FILE FOR AT LEAST THREE YEARS FROM THE DATE OF THE TRANSACTION. UPON
THE REQUEST OF THE OFFICE OF FIRE PREVENTION AND CONTROL, A PERSON,
MANUFACTURER, OR PURCHASER MUST FURNISH THE NOTICE, OR WRITTEN COPIES,
AND ASSOCIATED SALES DOCUMENTATION TO THE OFFICE OF FIRE PREVENTION AND
CONTROL WITHIN SIXTY DAYS.
5. THE OFFICE OF FIRE PREVENTION AND CONTROL MAY REQUEST A CERTIFICATE
OF COMPLIANCE FROM A MANUFACTURER OF CLASS B FIREFIGHTING FOAM OR FIRE-
FIGHTING PERSONAL PROTECTIVE EQUIPMENT ATTESTING TO THE MANUFACTURER'S
COMPLIANCE WITH THE PROVISIONS OF THIS SECTION.
6. THE OFFICE OF FIRE PREVENTION AND CONTROL SHALL PROMULGATE REGU-
LATIONS TO PROVIDE GUIDANCE TO STATE AGENCIES, FIRE PROTECTION DISTRICTS
AND LOCAL GOVERNMENTS IN AVOIDING THE PURCHASE OR USE OF CLASS B FIRE-
FIGHTING 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. MANUFACTUR-
ERS, LOCAL GOVERNMENTS, 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.
§ 2. This act shall take effect on the ninetieth day after it shall
have become a law. Effective immediately, the addition, amendment
and/or repeal of any rule or regulation necessary for the implementation
of this act on its effective date are authorized and directed to be made
and completed on or before such effective date.