Read the full stored bill text
Legislation Document
SPONSOR:
Rep. Burns & Rep. Carson & Rep. Lambert & Rep. Morris & Rep. D. Short & Sen. Brown
Reps. Cooke, K. Johnson, Morrison, Osienski, Ross Levin, Snyder-Hall; Sens. Hansen, Huxtable, Pettyjohn, Pinkney, Walsh, Wilson
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE SUBSTITUTE NO. 1
FOR
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) “Bulk petroleum facility” means a facility that stores, processes, refines, or transfers crude petroleum or petroleum products in bulk quantities, including refineries.
(3) "Department" or “DNREC” means the Department of Natural Resources and Environmental Contro
l.
(4) "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.
(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 fluorinated organic chemicals containing at least 1 fully fluorinated carbon atom.
§ 6602E. Prohibition of class B firefighting foam that contains intentionally added PFAS chemicals.
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 in this State class B firefighting foam that contains intentionally added PFAS chemicals.
§ 6603E. Bulk petroleum facilities; exemption.
(a) A person operating a bulk petroleum facility after January 1, 2028, and who seeks to purchase, store, distribute and utilize class B firefighting foam containing intentionally added PFAS for the purpose of fighting emergency class B fires, may apply to the Department for a 5-year exemption from the restrictions on the purchase, storage, use, and distribution of class B firefighting foam under § 6602E of this title. At the end of the exemption period, a person operating a bulk petroleum facility may request an extension of the exemption for an additional 2 years. The total exemption period under this section may not exceed 13 years.
(b) The Department, in consultation with the Department of Health and Social Services, may grant an exemption and an exemption extension under subsection (a) of this section, if the applicant provides:
(1) Clear and convincing evidence that there is no compliant, commercially available alternative firefighting foam that
is capable of suppressing a large atmospheric tank fire or emergency class B fire at the bulk petroleum facility.
(2) Information on the amount of class B firefighting foam containing intentionally added PFAS that is annually stored, used, or released at the bulk petroleum facility.
(3) A report on the progress being made by the applicant to transition 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 bulk petroleum facility.
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 bulk petroleum facility from providing class B firefighting foam containing intentionally added PFAS in the form of aid to another bulk petroleum facility, or while providing mutual aid in the event of a class B fire. A bulk petroleum facility providing aid under this subsection may not be liable for fines or penalties associated with the release or containment measures arising from the provision of the class B firefighting foam containing intentionally added PFAS
.
(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 application for which the foam was used, and the duration of the event.
(e) A person at a bulk petroleum facility providing aid in accordance with this section, must report the use of the foam to the Department within 24 hours after the event for which the foam was used, including the identity of the foam, the quantity used, the application for which the foam was used, and the duration of the event.
§ 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, unless the purchaser obtains an exemption under § 6603E of this title, 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 must submit documentation to the Department certifying it is compliant with this subsection.
§ 6605E. Certificate of compliance; state assistance.
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.
§ 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 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.
(d) 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 a bulk petroleum facility, provided that the bulk petroleum facility applies to DNREC for a 5-year exemption. The exemption period may be extended for additional 2-year periods, up to a total of 13 years. If an exempt bulk petroleum facility uses foam containing PFAS chemicals, they must notify DNREC.
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, unless the purchaser is exempt as a bulk petroleum facility. 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 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.
House Substitute 1 to HB 356 differs from HB 356 in the following ways:
(1) It replaces the term “terminal” with the broader term “bulk petroleum facility” which clarifies those facilities that may apply for an exemption under this Act.
(2) Clarifies the definition of PFAS or polyfluoroalkyl substances.
(3) Extends the exemption period for bulk petroleum facilities from 1 to 5 years.
(4) Provides additional 2-year extensions to the 5-year exemption period, so long as the total exemption period does not exceed 13 years.
(5) Permits a bulk petroleum facility to use PFAS-containing firefighting foam to aid another facility.
(6) Removes the requirement that DNREC assist state agencies and local governments in identifying and obtaining class B firefighting foam that does not contain PFAS chemicals.