2023 -- S 0016

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LC000573

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO HEALTH AND SAFETY -- COMPREHENSIVE PFAS BAN ACT OF 2023

     Introduced By: Senators Kallman, DiMario, Euer, Miller, LaMountain, Pearson,
Valverde, Britto, Gu, and Ujifusa

     Date Introduced: January 18, 2023

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 18.18

COMPREHENSIVE PFAS BAN ACT OF 2023

     23-18.18-1. Short title.

     This act shall be known and may be cited as the "Comprehensive PFAS Ban Act of 2023".

     23-18.18-2. Legislative intent.

     It is the intent of the legislature to ban all uses of PFAS by December 31, 2032, unless the

use of PFAS in a product is considered unavoidable.

     23-18.18-3. Definitions.

     For purposes of this chapter, the following definitions shall apply:

     (1) "Adult mattress" means a mattress other than a crib mattress or toddler mattress.

     (2) "Apparel" means any of the following:

     (i) Clothing items intended for regular wear or formal occasions. This includes, but is not

limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits,

saris, scarves, tops, leggings, school uniforms, leisurewear, everyday swimwear, formal wear,

onesies, bibs, diapers, and footwear, apparel, costumes, accessories (including handbags and

backpacks) and everyday professional uniforms; and

     (ii) Clothing items intended primarily for outdoor activities. This includes, but is not

limited to, clothing intended for hiking, camping, skiing, climbing, bicycling, boating and fishing.

"Outdoor apparel" means clothing intended to be worn over common apparel including, but not

limited to, jackets, coats, snow pants, ski pants, etc. "Outdoor apparel" does not include professional

uniforms. Apparel does not include professional uniforms that are worn to protect the wearer from

health or environmental hazards.

     (3) "Bisphenols" means any member of a class of industrial chemicals that contain two (2)

hydroxyphenyl groups. Bisphenols are used primarily in the manufacture of polycarbonate plastic

and epoxy resins.

     (4) "Carpet or rug" means a fabric marketed or intended for use as a floor covering.

     (5) "Class B firefighting foam" means foams designed for flammable liquid fires.

     (6) "Cookware" means durable houseware items that are used in homes and restaurants to

prepare, dispense, or store food, foodstuffs, or beverages. "Cookware" includes pots, pans, skillets,

grills, baking sheets, baking molds, trays, bowls, and cooking utensils.

     (7) "Cosmetic" or "cosmetic product" means any personal care product intended for

cleaning or cleansing any part of the body, or beautifying, promoting attractiveness or altering the

appearance such as the skin and hair, and including but not limited to, hair shampoo, hair

conditioner, soap, bath gels and other bath products. The term "personal care product" shall not

include any product for which a prescription is required for distribution or dispensation.

     (8) "Fabric treatment" means a substance applied to fabric to give the fabric one or more

characteristics, including but not limited to stain resistance or water resistance.

     (9) "Feasible and available" means a safer alternative that is:

     (i) Available in the marketplace; or

     (ii) Used or marketed for the application of interest in a product or a similar application; or

     (iii) Identified by a scientific or governmental agency as a safer alternative to PFAS in a

product, similar product or analogous product; or

     (iv) Is already used in similar or analogous products to achieve a similar function.

     (10) "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 designed exclusively for fighting fires.

     (11) "Intentionally added PFAS" means PFAS that a manufacturer has intentionally added

to a product and that have a functional or technical effect in the product, including the PFAS

components of intentionally added chemicals and PFAS that are intentional breakdown products

of an added chemical that also have a functional or technical effect in the product.

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     (12) "Juvenile product" means a product designed for use by infants and children under

twelve (12) years of age, including, but not limited to, a baby or toddler foam pillow, bassinet,

bedside sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and

aircraft, co-sleeper, crib mattress, floor playmat, highchair, highchair pad, infant bouncer, infant

carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot,

nursing pad, nursing pillow, playmat, playpen, play yard, polyurethane foam mat, pad, or pillow,

portable foam nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib,

stroller, and toddler mattress. "Juvenile product" does not include any of the following:

     (i) A children's electronic product, including, but not limited to, a personal computer, audio

and video equipment, calculator, wireless phone, game console, handheld device incorporating a

video screen, or any associated peripheral such as a mouse, keyboard, power supply unit, or power

cord;

     (ii) Any medical device as defined in subsection (h) of Section 321 of Title 21 of the United

States Code; or

     (iii) An adult mattress.

     (13) "Local governments" means any city, town, fire district, regional fire protection

authority, or other special purpose district that provides firefighting services.

     (14) "Manufacturer" means any company, entity or person that manufactures a product or

whose brand name is affixed to the product. In the case of a product imported into the United States,

"manufacturer" includes the importer or first domestic distributor of the product if the person that

manufactured or assembled the product or whose brand name is affixed to the product does not

have a presence in the United States. For the purposes of this subsection, "importer" means the

owner of the product at the time the product is brought into the United States.

     (15) "Manufacturer of fire prevention products" means any person, firm, association,

partnership, corporation, organization, joint venture, importer, or domestic distributor of

firefighting agents or firefighting equipment.

     (16) "Ortho-phthalates" means any member of the class of organic chemicals that are esters

of phthalic acid containing two (2) carbon chains located in the ortho position.

     (17) "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS" means substances that

include any member of the class of fluorinated organic chemicals containing at least one fully

fluorinated carbon atom.

     (18) "Priority product" means a product the department of environmental management has

identified as a priority product pursuant to the provisions of § 23-18.18-4(a)(i).

     (19) "Product" means an item manufactured, assembled, packaged or otherwise prepared

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for sale to consumers, including its product components, sold or distributed for personal,

residential, commercial or industrial use, including for use in making other products. Product does

not mean used products offered for sale or resale.

     (20) "Product component" means an identifiable component of a product, regardless of

whether the manufacturer of the product is the manufacturer of the component.

     (21) "Safer alternative" means an alternative that is less hazardous to humans or the

environment than PFAS. A "safer alternative" includes a chemical substitute or a change in

materials, function or design that eliminates the need for PFAS. A safer alternative shall not be a

PFAS chemical.

     (22) "Sensitive population" means a category of people that is identified by the department

of environmental management that may be or is disproportionately or more severely affected by

PFAS including but not limited to:

     (i) Men and women of childbearing age;

     (ii) Infants and children;

     (iii) Pregnant women;

     (iv) Communities that are highly impacted by toxic chemicals;

     (v) Persons with occupational exposure; and

     (vi) The elderly.

     (23) "Sensitive species" means a species or grouping of animals that is identified by the

department of environmental management that may be or is disproportionately or more severely

affected by PFAS.

     (24) "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.

     (25) "Textile" means any item made in whole or part from a natural or synthetic fiber, yarn,

or fabric. Textile includes, but is not limited to, the following: leather, cotton, silk, jute, hemp,

wool, nylon, or polyester.

     (26) "Textile furnishings" means textile goods of a type customarily used in households

and businesses. Textile articles include, but are not limited to, draperies, floor coverings,

furnishings, beddings, towels, and tablecloths.

     (27) "Unavoidable" means a use of PFAS that the department of environmental

management has determined by rule under this chapter to be essential for health, safety or the

functioning of society and for which safer alternatives are not feasible and available at the time of

assessment or in the foreseeable future.

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     (28) "Upholstered furniture" means any article of furniture designed to be used for sitting,

resting, or reclining that is wholly or partly stuffed or filled with any filling material.

     23-18.18-4. Authority to ban PFAS.

     (a) The department of environmental management shall use the following procedure to ban

the use of PFAS in all products:

     (1) No later than January 1, 2025, and at least every three (3) years thereafter, the

department of environmental management shall by rule, identify priority products by category or

use that may not be manufactured, sold, offered for sale or use or distributed for sale in this state if

they contain intentionally added PFAS. The department of environmental management shall

consider the following factors in prioritizing products:

     (i) Whether there is the potential for exposure to PFAS to sensitive populations or sensitive

species when the product containing PFAS is manufactured, used, disposed of, or has decomposed;

     (ii) Whether there is the potential for PFAS to contaminate the outdoor environment, with

priority given to surface water, groundwater, marine waters, sediments, and other ecologically

sensitive areas, when the product containing PFAS is used, disposed of, or has decomposed;

     (iii) Whether there is the potential for the PFAS to contaminate an indoor environment

including presence in indoor air or dust;

     (iv) The volume of PFAS used in a product or product category;

     (v) Whether the use of PFAS in a product is currently unavoidable; and

     (vi) Whether other states or nations have identified or taken regulatory action to restrict or

otherwise regulate PFAS in the product.

     (2) If the department of environmental management determines that the use of PFAS in the

priority product meets any of the following criteria, the department of environmental management

shall commence rulemaking no later than two (2) years after identifying a product as a priority

product pursuant to the provisions of subsection (a)(1) of this section and shall adopt rules to

prohibit the manufacturing, sale, offering for sale or distribution for sale or use in the state,

provided:

     (i) There are similar or analogous products to the priority product that do not contain PFAS;

or

     (ii) There are similar or analogous products to the priority product that uses a safer

alternative to PFAS; or

     (iii) There are safer, feasible available alternatives to PFAS in the priority products; or

     (iv) The use of the PFAS in the product is not necessary for the product to achieve its main

function; or

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     (v) The product is not necessary enough for the safety of human health, environment or

functioning of society so as to justify the use of a hazardous substance.

     (b) Manufacturers may apply to the department of environmental management for an

exemption to the prohibition provided in subsection (a)(2) of this section. The department of

environmental management may approve the exemption if the department of environmental

management determines that the use of PFAS in the priority product is unavoidable. Exemptions

granted by the department shall be governed as follows:

     (1) Exemptions to the rules adopted pursuant to this section shall expire after five (5) years.

     (2) A product manufacturer may renew its exemption for an additional five (5) years if it

can demonstrate that the use of PFAS in the product is still unavoidable.

     (3) The department of environmental management in considering a request for exemptions

shall determine, based on all available information to include market data and information from

product manufacturers whether the use of PFAS in the exempted product or product category is

unavoidable. If the department of environmental management determines that the use of PFAS is

not unavoidable, the exemption will be denied.

     (c) The department of environmental management shall have the authority to require

product manufacturers to submit information on the use of PFAS or safer alternatives in selected

product categories.

     (d) The department of environmental management may establish by rule and assess a fee

payable by a manufacturer upon submission of an exemption request under subsection (b) of this

section to cover the department's reasonable costs in developing rules and administering

requirements under this section. The department may choose to set fees based upon the volume of

PFAS, volume of sales or type of PFAS used in a product or product category.

     23-18.18-5. Disclosure of PFAS in products.

     (a) Beginning January 1, 2026, a manufacturer of a product for sale in the state that contains

intentionally added PFAS shall submit to the department of environmental management a written

notification that includes:

     (1) A brief description of the product;

     (2) The function served by PFAS in the product, including in any product components;

     (3) The amount of each of the PFAS, identified by its chemical abstracts service registry

number, in the product, reported as an exact quantity determined using commercially available

analytical methods or as falling within a range approved for reporting purposes by the department;

     (4) The name and address of the manufacturer, and the name, address and phone number

of a contact person for the manufacturer; and

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     (5) Any additional information established by the department of environmental

management by rule as necessary to implement the requirements of this chapter.

     (b) The department of environmental management may prioritize products subject to

requirements under § 23-18.18-4(a) based on the products that, in the department of environmental

management's judgment, are most likely to cause contamination of the state's land or water

resources if they contain intentionally added PFAS.

     (c) With the approval of the department of environmental management, a manufacturer

may supply the information required in this section for a category or type of product rather than for

each individual product.

     (d) In accordance with rules adopted by the department of environmental management, a

manufacturer shall update and revise the information in the written notification whenever there is

significant change in the information.

     (e) The department of environmental management may waive all or part of the notification

requirement in this section if the department of environmental management determines that

substantially equivalent information is already publicly available. The department of environmental

management may enter into an agreement with one or more other states or political subdivisions of

a state to collect notifications and may accept notifications to a shared system as meeting the

notification requirement under this section. The department of environmental management may

extend the deadline for submission by a manufacturer of the information required under this section

if the department determines that more time is needed by the manufacturer to comply with the

submission requirement.

     (f) The department of environmental management may establish by rule and assess a fee

payable by a manufacturer upon submission of the notification required under subsection (a) of this

section to cover the department's reasonable costs in developing rules administering the

requirements in this section. The department may choose to set fees based upon the volume of

PFAS, volume of sales or type of PFAS.

     (g) This section shall not apply to the sale or resale of used products.

     23-18.18-6. Carpet, upholstered furniture, textile furnishings and after-market

treatments.

     (a) Effective January 1, 2025, no business or person may sell, offer for sale or distribute

for sale in this state a carpet or rug that contains PFAS. This prohibition does not apply to the sale

or resale of a used carpet or rug.

     (b) Effective January 1, 2025, no business or person may sell, offer for sale or distribute

for sale in this state a fabric treatment that contains PFAS. This prohibition does not apply to the

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sale or resale of a used fabric treatment.

     (c) Effective January 1, 2025, no business or person may sell, offer for sale or distribute

for sale in this state upholstered furniture that contains PFAS. This prohibition does not apply to

the sale or resale of used upholstered furniture.

     (d) Effective January 1, 2025, no business or person may sell, offer for sale or distribute

for sale in this state textile furnishings that contains PFAS. This prohibition does not apply to the

sale or resale of used textile furnishing.

     23-18.18-7. Apparel including outdoor gear and uniforms.

     (a) Beginning January 1, 2025, no business or person shall manufacture, distribute, sell, or

offer for sale in this state any common apparel containing PFAS.

     (b) Beginning January 1, 2026, no business or person shall manufacture, distribute, sell, or

offer for sale in this state any outdoor apparel containing PFAS.

     (c) This section shall not apply to the sale or resale of used products.

     23-18.18-8. Cosmetics.

     (a) Beginning January 1, 2025, no business or person shall manufacture, distribute, sell, or

offer for sale in this state any cosmetic or cosmetic product containing PFAS.

     23-18.18-9. Juvenile products.

     (a) On and after July 1, 2024, a person, including, but not limited to, a manufacturer, shall

not sell or distribute in commerce in this state any new juvenile product that contains PFAS.

     (b) This section shall not apply to the sale or resale of used products.

     23-18.18-10. Cookware.

     (a) Commencing on January 1, 2025, no person shall distribute, sell, or offer for sale in the

state any cookware that contains PFAS.

     (b) This section shall not apply to the sale or resale of used products.

     23-18.18-11. Firefighting foam.

     (a) Beginning January 1, 2024, no person, local government, or state agency may discharge

or otherwise use for training purposes class B firefighting foam that contains intentionally added

PFAS chemicals.

     (b) Beginning January 1, 2026, 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.

     Beginning January 1, 2024, the following shall apply:

     (1) Any person, local government or state agency that uses class B firefighting foam

containing PFAS chemicals shall report the use of the foam to the state fire marshal within five (5)

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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) Any person, local government or state agency that uses class B firefighting foam

containing PFAS chemicals 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 chemicals, 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.

     (vi) Document the measures undertaken pursuant to this section. In investigating

compliance with this section, the attorney general or city/town council, may request all

documentation pertaining to the use or release of any substance regulated by this chapter.

     (c) A person operating a terminal after January 1, 2026, 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 of environmental management 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 attorney general 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

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     (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.

     (d) 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.

     (e) 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.

     (f) A manufacturer that produces, sells, or distributes a class B firefighting foam after the

products production, sale or distribution is prohibited under this chapter shall recall the product and

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 and city/town council

upon request.

     (g) 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.

     (h) Beginning January 1, 2024, the department of environmental management 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.

     (i) A manufacturer of class B firefighting foam in violation of this chapter is subject to a

civil penalty not to exceed five thousand dollars ($5000) 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. Penalties collected

under this section shall be deposited and made available only to the department of environmental

management for remediation efforts and for costs of enforcing the rules and regulations of this

chapter.

     (j) Beginning January 1, 2024, a manufacturer or other person that sells firefighting

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personal protective equipment to any person, local government, or state agency shall provide

written notice to the purchaser at the time of sale if the firefighting personal protective equipment

contains any PFAS chemicals. The written notice shall include a statement that the firefighting

personal protective equipment contains PFAS chemicals and the reason PFAS chemicals are added

to the equipment.

     (k) The department of environmental management 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 chemicals.

     (l) The manufacturer or person selling firefighting personal protective equipment and the

purchaser of the equipment shall retain the notice on file for at least three (3) years from the date

of the transaction. Upon the request of the department of environmental management, a person,

manufacturer, or purchaser shall furnish the notice, or written copies, and associated sales

documentation to the department within sixty (60) days.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- COMPREHENSIVE PFAS BAN ACT OF 2023

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     This act would prohibit the use of perfluoroalkyl and polyfluoroalkyl substances or "PFAS"

in carpets, upholstered furniture, textile furnishings, apparel, cosmetics juvenile products,

cookware and firefighting foam and give authority to the department of environmental management

to regulate the use. The act would provide for some limited and/or temporary exemptions to the

prohibitions.

     This act would take effect upon passage.

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