Title 23
Health and Safety

Chapter 18.18
Consumer PFAS Ban Act of 2024.

§ 23-18.18-5. Ban in firefighting foam.

(a) For the purposes of this section, the following terms shall have the following meanings:

(1) “Class B firefighting foam” means foams designed for flammable liquid fires.

(2) “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.

(3) “Local government” means any county, city, town, fire district, regional fire protection authority, or other special purpose district that provides firefighting services.

(4) “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.

(b) Beginning January 1, 2025, a person, local government, or state agency may not discharge or otherwise use for training purposes class B firefighting foam that contains intentionally added PFAS chemicals.

(c) Beginning January 1, 2025, a manufacturer of class B firefighting foam may not manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use or use in this state class B firefighting foam to which PFAS have been intentionally added.

(d) The restrictions in subsections (b) and (c) of this section do not apply to any manufacture, sale, or distribution of class B firefighting foam where the inclusion of PFAS chemicals are required by federal law, including, but not limited to, the requirements of 14 C.F.R. §  139.317, as that section existed as of January 1, 2022. In the event that applicable federal regulations change after January 1, 2022, to allow the use of alternative firefighting agents that do not contain PFAS chemicals, the restrictions set forth in subsection (b) of this section shall apply.

(1) A person that uses class B firefighting foam containing PFAS chemicals pursuant to subsection (d) of this section shall report the use of the foam to the state fire marshal within five (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.

(2) A person that uses class B firefighting foam containing PFAS chemicals pursuant to subsection (d) of this section shall do all of the following:

(i) Allow no release directly to the environment, such as to unsealed ground, soakage pits, waterways, or uncontrolled drains;

(ii) Fully contain all releases onsite;

(iii) Implement containment measures such as bunds and ponds that are controlled, impervious to PFAS, and do not allow firewater, wastewater, runoff, and other wastes to be released to the environment, such as to soils, groundwater, waterways, or stormwater;

(iv) Dispose of all firewater, wastewater, runoff, and other wastes in a way that prevents releases to the environment;

(v) If there is a release to the environment, report the identity of the foam, the quantity used, the total PFAS concentration, and the form of any waste that contains PFAS chemicals that is released into the environment to the state fire marshal within five (5) business days of the release; and

(vi) Document the measures undertaken pursuant to this subsection. In investigating compliance with this subsection, the attorney general, a city attorney, or a city or town solicitor may request the documentation.

(e) A person operating a terminal after January 1, 2025, 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 shall not exceed one year. The department of environmental management, in consultation with the department of health, may grant an exemption under this subsection if the applicant provides:

(1) Clear and convincing evidence that there is not a commercially available alternative that:

(i) Does not contain intentionally added PFAS; and

(ii) 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; and

(4) An explanation of how:

(i) All releases of class B firefighting foam containing intentionally added PFAS shall be fully contained at the terminal; and

(ii) Existing containment measures prevent firewater, wastewater, runoff, and other wastes from being released into the environment, including into soil, groundwater, waterways, and stormwater.

(f) Nothing in this section shall prohibit a terminal from providing class B firefighting foam in the form of aid to another terminal in the event of a class B fire.

(g) A manufacturer of class B firefighting foam restricted under subsection (c) of this section must notify, in writing, persons that sell the manufacturer’s products in this state about the provisions of this chapter no less than one year prior to the effective date of the restrictions.

(h) A manufacturer that produces, sells, or distributes a class B firefighting foam prohibited under subsection (c) of this section shall recall the product and reimburse the retailer or any other purchaser for the product by March 1, 2025, and shall reimburse the retailer or any other purchaser for the product. A recall of the product shall 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 attorney general, or city or town solicitor upon request.

(i) The department may request a certificate of compliance from a manufacturer of class B firefighting foam, or firefighting personal protective equipment sold in this state. A certificate of compliance attests that a manufacturer’s product or products meets the requirements of this chapter. If the department requests such a certificate, the manufacturer shall provide the certificate within thirty (30) calendar days after the request is made.

(j) The department shall assist state agencies, fire protection districts, and other local governments to avoid purchasing or using class B firefighting foams to which PFAS chemicals have been intentionally added.

(k) A manufacturer of class B firefighting foam in violation of this chapter is subject to a civil penalty not to exceed five thousand dollars ($5,000) for each violation in the case of a first offense. Manufacturers, local governments, or persons that are repeat violators are subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each repeat offense.

(l) Beginning January 1, 2025, 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 any PFAS. 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.

(m) The department shall assist state agencies, fire protection districts, and other local governments to give priority and preference to the purchase of firefighting personal protective equipment that does not contain PFAS.

(n) 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 (3) years from the date of the transaction. Upon the request of the department, a person, manufacturer, or purchaser must furnish the notice, or written copies, and associated sales documentation to the department within sixty (60) days.