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Legislation Document
SPONSOR:
Rep. Burns & Rep. Carson & Rep. Lambert & Rep. Morris & Rep. D. Short & Sen. Brown
Reps. Cooke, K. Johnson, Morrison, Osienski; Sens. Hansen, Huxtable, Pettyjohn, Pinkney, Walsh, Wilson
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE BILL NO. 356
AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO PFAS IN FIREFIGHTING FOAM AND EQUIPMENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Part VI, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
Chapter 66E. The Use of PFAS in Firefighting Foam and Equipment
§ 6601E. Definitions.
For purposes of this chapter:
(1) "Class B firefighting foam" means firefighting foam designed for suppressing flammable liquid fires.
(2) "Department" or “DNREC” means the Department of Natural Resources and Environmental Control
.
(3) "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 fire and rescue activities, including jackets, pants, shoes, gloves, helmets, and respiratory equipment.
(4) "Local government" means any county, city, town, regional fire protection authority, or other special purpose district that provides firefighting services.
(5) "Manufacturer" means any person, firm, association, partnership, corporation, organization, joint venture, importer, or domestic distributor of firefighting agents or firefighting equipment.
(6) "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS" means substances that include any member of the class of fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.
(7) “Terminal” means an establishment primarily engaged in the wholesale distribution of crude petroleum and petroleum products, including liquefied petroleum gas from bulk liquid storage facilities.
§ 6602E. Prohibition of class B firefighting foam that contains intentionally added PFAS chemicals.
(a) Except as provided by § 6603E of this title, beginning January 1, 2028, a manufacturer of class B firefighting foam may not manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in the State class B firefighting foam that contains intentionally added PFAS chemicals.
§ 6603E. Terminals.
(a) A person operating a terminal after January 1, 2028, and who seeks to purchase class B firefighting foam containing intentionally added PFAS for the purpose of fighting emergency class B fires, may apply to the Department for a temporary exemption from the restrictions on the manufacture, sale, offer for sale, or distribution of class B firefighting foam for use at a terminal. An exemption may not
exceed 1 year.
(b) The Department, in consultation with the Department of Health and Social Services, may grant an exemption under this section if the applicant provides:
(1) Clear and convincing evidence that there is not a commercially available alternative that is all of the following:
a. Does not contain intentionally added PFAS
.
b. Is capable of suppressing a large atmospheric tank fire or emergency class B fire at the terminal
.
(2) Information on the amount of class B firefighting foam containing intentionally added PFAS that is annually stored, used, or released at the terminal
.
(3) A report on the progress being made by the applicant to transition at the terminal to class B firefighting foam that does not contain intentionally added PFAS
.
(4) An explanation of how:
a. All releases of class B firefighting foam containing intentionally added PFAS shall be fully contained at the terminal
.
b. Existing containment measures prevent firewater, wastewater, runoff, and other wastes from being released into the environment, including into soil, groundwater, waterways, and stormwater.
(c) Nothing in this section prohibits a terminal from providing class B firefighting foam in the form of aid to another terminal in the event of a class B fire.
(d) A person that uses class B firefighting foam containing PFAS chemicals in accordance with this section shall report the use of the foam to the Department within 5 business days of the use, including the identity of the foam, the quantity used, the total PFAS concentration, the application for which the foam was used, and the duration of the fire.
§ 6604E. Manufacturer notification.
(a) A manufacturer that produces, sells, or distributes a class B firefighting foam prohibited under this chapter must notify, in writing, persons that sell the manufacturer's products in the State about the provisions of this chapter by January 1, 2027.
(b) A manufacturer that produces, sells, or distributes a class B firefighting foam prohibited under this chapter must recall the product and reimburse the retailer or any other purchaser for the product by March 1, 2028. A recall of the product must include safe transport and storage, and documentation of the amount and storage location of the PFAS-containing firefighting foam, until the Department formally identifies a safe
disposal technology. The manufacturer shall provide this documentation to the Department.
§ 6605E. Certificate of compliance; state assistance.
(a) The Department may request a certificate of compliance from a manufacturer of class B firefighting foam or firefighting personal protective equipment sold in the State. A certificate of compliance attests that a manufacturer's product meets the requirements of this chapter. If the Department requests a certificate of compliance, the manufacturer must provide the certificate within 30 calendar days after the request is made.
(b) Beginning January 1, 2027, the Department shall assist state agencies and local governments in identifying and obtaining class B firefighting foam that does not contain intentionally added PFAS chemicals.
§ 6606E. Penalties; firefighting foam.
(a) A manufacturer of class B firefighting foam in violation of this chapter is subject to a civil penalty as follows:
(1) For a first occurrence, not more than $5,000, in addition to costs.
(2) For a second occurrence or a subsequent occurrence, not more than $10,000, in addition to costs.
(b) Penalties collected under this chapter must be appropriated to the Department to carry out the purposes of this chapter.
§ 6607E. Personal protective equipment that contains PFAS chemicals.
(a) Beginning January 1, 2027, a manufacturer or person that sells firefighting personal protective equipment containing PFAS chemicals to any person, local government, or state agency must provide written notice to the purchaser at the time of sale that the firefighting personal protective equipment contains PFAS chemicals.
(b) 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.
(c) The Department shall assist state agencies and local governments in identifying for purchase firefighting personal protective equipment that does not contain PFAS chemicals.
(d) The manufacturer or person selling firefighting personal protective equipment must retain the notice on file for at least 3 years from the date of the transaction. Upon the request of the Department, a person or manufacturer must furnish the notice, or written copies and associated sales documentation to the Department within 60 days.
(e)
A manufacturer or person in violation of this section is subject to a civil penalty of $100 per occurrence. Penalties collected under this section must be appropriated to the Department to carry out the purposes of this chapter.
SYNOPSIS
This Act prohibits the sale of class B firefighting foam that contains intentionally added PFAS chemicals starting January 1, 2028. An exception is provided for an establishment engaged in the distribution of crude petroleum and petroleum products, provided that the establishment applies to DNREC for an exemption. The exemption may not exceed 1 year and the establishment must report on progress being made to transition to firefighting foam that does not contain PFAS. If an exempt establishment uses foam containing PFAS chemicals, they must notify DNREC within 5 business days.
Under this Act, a manufacturer must notify its customers in the State regarding the prohibition of firefighting foam containing PFAS chemicals by January 1, 2027. By March 1, 2028, the manufacturer must recall or reimburse purchasers for firefighting foam containing intentionally added PFAS chemicals. The recall must include the safe transport and storage of PFAS-containing firefighting foam until the Department identifies a safe disposal technology.
A manufacturer in violation of this Act is subject to a $5,000 civil penalty for a first offense and a $10,000 civil penalty for a second, or subsequent offense.
Finally, this Act requires that firefighting personal protective equipment (PPE) that contains PFAS chemicals be sold with a written notice that states that the PPE contains PFAS chemicals. The manufacturer or seller of the PPE must retain the written notice on file for at least 3 years from the date of transaction. Failure to provide written notice of PFAS chemicals in PPE will subject the manufacturer or seller to a civil penalty of $100 per occurrence.