2021 New York Laws
GBS - General Business
Article 26 - Miscellaneous
391-U*2 - Restrictions on the Sale and Use of Firefighting Equipment Containing Pfas Chemicals.

* §  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