Researcher: KLM Page 1 6/8/21
OLR Bill Analysis
sSB 837 (File 126, as amended by House "A" and Senate "A")*
AN ACT CONCERNING THE USE OF PERFLUOROALKYL OR
POLYFLUOROALKYL SUBSTANCES IN CLASS B FIREFIGHTING
FOAM.
SUMMARY
This bill generally prohibits (1) using class B firefighting foam with
intentionally added perfluoroalkyl or polyfluoroalkyl substance
(PFAS) and (2) offering for sale or promotional purposes food
packaging with PFAS intentionally introduced during manufacturing
or distribution. Under the bill, class B firefighting foam is used to
extinguish flammable liquid fires and PFAS is a class of fluorinated
organic chemicals containing at least one fully fluorinated carbon
atom.
With respect to the foam, the bill prohibits, upon passage, any
person, local government, or state agency from using class B
firefighting foam with intentionally added PFAS in any amount for
training purposes or testing purposes (i.e., calibration, conformance,
and fixed system testing). Beginning October 1, 2021, it also prohibits
anyone from using this foam for vapor suppression or firefighting
purposes, unless the fire is flammable liquid-based and the
Department of Energy and Environmental Protection (DEEP)
commissioner does not identify an alternative to the foam by July 1,
2021.
The bill also exempts from the ban on using the foam for vapor
suppression or firefighting (1) anyone required by federal law to use it;
(2) certain facility operators who obtain a limited extension of time for
compliance; and (3) until October 1, 2023, airport-related entities with
systems that prevent its release into the environment.
For packaging, the bill prohibits (1) by December 31, 2023,
manufacturers and distributors from offering for sale or promotional 2021SB-00837-R02-BA.DOCX
Researcher: KLM Page 2 6/8/21
purposes food packaging or packaging components with intentionally
introduced PFAS and (2) using a material that replaces a chemical
regulated by the state packaging and packaging components law in an
amount or way that creates an equal or greater hazard than the
regulated chemical (see BACKGROUND).
The bill expands on the current procedure to show that a package or
packaging component complies with the law’s restrictions (i.e.,
certificates of compliance), which applies to existing restrictions on
lead, mercury, cadmium, and hexavalent chromium and the bill’s
PFAS ban. It applies existing civil and criminal penalties for violating
the packaging and component law to the ban on PFAS in food
packaging, including those for making false statements in certificates
of compliance (see BACKGROUND).
The bill requires the DEEP commissioner, by October 1, 2021, to
develop or identify a take-back program for municipally owned class B
firefighting foam with PFAS that applies best management practices
for its disposal.
Lastly, it makes minor, technical, and conforming changes.
*Senate Amendment “A” principally (1) expands the general ban on
using class B firefighting foam with PFAS to include testing, rather
than only training, purposes; (2) forwards the dates associated with,
and adds three exemptions to, the ban on using the foam for
firefighting, and also adds using the foam for vapor suppression to this
ban; (3) limits the municipal take-back program to class B firefighting
foam with PFAS, rather than any municipal source of PFAS; (4) adds
the provisions on food packaging with PFAS; and (5) adds the
provision on substitute chemical hazards in packaging.
*House Amendment “A” (1) extends the effective date of the ban on
PFAS in food packaging from July 1, 2021, to October 1, 2021, and (2)
eliminates the provision that considers using PFAS as a processing
agent, mold release agent, or intermediate to be an intentional
introduction when it is detected in the final package or component. 2021SB-00837-R02-BA.DOCX
Researcher: KLM Page 3 6/8/21
EFFECTIVE DATE: Upon passage, except that the provisions on
PFAS in food packaging and packaging components are effective
October 1, 2021.
§ 1 — FIREFIGHTING FOAM
Firefighting and Vapor Suppression Use Exemptions
Beginning October 1, 2021, the bill generally prohibits using class B
firefighting foam with intentionally added PFAS for vapor suppression
or firefighting purposes. However, the bill allows the foam to be used
when:
1. the fire is a flammable liquid-based fire and the DEEP
commissioner does not identify an alternative by July 1, 2021, or
2. federal law requires someone to use the foam, but only until the
earlier of (a) a change in federal law prohibiting the foam’s use
or (b) one year after federal law no longer requires its use.
The bill also allows the foam to be used by (1) certain facility
operators who obtain a limited extension of time for compliance from
the DEEP commissioner and (2) until October 1, 2023, an airport-
related entity with a fire suppression system that uses the foam has
measures to prevent its release into the environment (see below).
Extension of Time to Comply. Under the bill, the operator of a
chemical plant; oil refinery; or flammable liquid terminal, storage, or
distribution facility may apply to the DEEP commissioner for an
extension of time to comply with the restrictions on using the foam for
vapor suppression or firefighting purposes. The extension request
must specify (1) why the extension is necessary and (2) what
containment, treatment, and disposal measures will be used to prevent
releases of the foam into the environment until compliance can occur.
The bill allows the commissioner to grant an extension, for no
longer than two years, if she determines that it is needed to remove or
repurpose a fire suppression system containing the foam.
Airport Entities. The bill exempts, until October 1, 2023, fire 2021SB-00837-R02-BA.DOCX
Researcher: KLM Page 4 6/8/21
suppression systems containing the foam that are used by airport-
related entity facilities as long as, by the date of the bill’s passage, the
system uses mitigation measures to prevent releases of the foam into
the environment. These measures must include implementing plans
and physical features designed to prevent the releases by containment,
treatment, and disposal, even when the foam is used in its intended
manner. By October 1, 2023, the bill requires the suppression systems
to be removed entirely or repurposed so that the foam is removed
from them.
Enforcement
The bill authorizes the DEEP commissioner to enforce the
restrictions on using class B firefighting foam with intentionally added
PFAS within available appropriations.
§§ 2-4 — PACKAGING AND PACKAGING COMPONE NTS
PFAS in Food Packaging
The bill prohibits, as soon as feasible but no later than December 31,
2023, manufacturers and distributors from offering for sale or
promotional purposes food packages with PFAS that was intentionally
introduced during manufacturing or distribution. It also prohibits
using a material to replace PFAS or any other chemical regulated by
the packaging and packaging component law that, either in amount or
manner, equals or exceeds the hazard created by the regulated
chemical. (Although the bill adds PFAS, existing law allows the DEEP
commissioner to report to the governor and the legislature on other
toxic substances to which the packaging and packaging component
law should apply (CGS § 22a-255m(a)).)
Under the bill, “food packaging” is a package or packaging
component applied to or in direct contact with food or beverage.
Additionally, the bill considers the act of “intentionally introducing”
PFAS to be deliberate use to make a package or component where
PFAS is wanted in the final product for a specific characteristic,
appearance, or quality.
However, the bill also specifies that it is not considered “intentional 2021SB-00837-R02-BA.DOCX
Researcher: KLM Page 5 6/8/21
introduction” to use some amounts of PFAS in the recycled materials
portion of post-consumer recycled materials as feedstock for
manufacturing new packaging materials, so long as the new package
or packaging component complies with the packaging and packaging
component law. Under the bill, “post-consumer recycled material” is
household-generated material or a material generated by commercial,
industrial, and institutional facilities as end-users of the product,
which can no longer be used for its intended purpose, including
returns of material from the distribution chain. It does not include
refuse-derived fuel or other material destroyed by incineration.
Certificate of Compliance
Current law allows package and packaging component
manufacturers and distributors to show that they comply with the
law’s composition restrictions by providing a certificate of compliance
stating that they relied on the written assurance from the manufacturer
about the package’s or component’s content. The provision applies to
the following four metals: lead, cadmium, mercury, and hexavalent
chromium.
Under the bill, upon request by either a packaging or packaging
component purchaser or the DEEP commissioner, a manufacturer or
distributor must provide a certificate of compliance, signed by an
authorized official, stating that it meets the law’s content requirements
for either PFAS or the four metals current law covers. If the package or
component meets one of the existing exemptions that generally apply
to the restricted metals, the certificate must state the specific reason it
applies.
Under the bill, a request must be in writing and specific as to the
requested package or component information. The manufacturer or
distributor, as applicable, must respond to the request within 60 days
after receiving it.
Manufacturers and suppliers must keep copies of their certificates
on file, but they may make the certificates available on their websites
or through an authorized representative, such as a packaging 2021SB-00837-R02-BA.DOCX
Researcher: KLM Page 6 6/8/21
clearinghouse.
Amended Certificates
If a package or packaging component manufacturer or distributor
reformulates or creates a new package or component, the bill requires
it to amend the applicable certificate of compliance for the
reformulated or new product.
Suspected Violation
Under the bill, if the commissioner has grounds to suspect that a
package (but not a packaging component) is offered for sale in
violation of existing law and the bill, she may ask its manufacturer or
distributor to provide a certificate of compliance within the next 30
days.
The bill requires the manufacturer or distributor to (1) give the
commissioner the certificate attesting that the package complies with
the law or (2) notify anyone selling the package in Connecticut that
doing so is prohibited and give the commissioner a copy of the notice
with the names and addresses of those sellers who received it.
BACKGROUND
Packaging and Components
Under existing law, a “package” is a container used to market,
protect, or handle a product and includes a unit package, intermediate
package, and shipping container. It also includes an unsealed
receptacle, such as a crate, cup, tray, wrapper, or bag, among other
things. “Packaging components” are package parts such as interior or
exterior blocking, bracing, cushioning, weatherproofing, exterior
strapping, coating, closure, ink, label, dye, pigment, adhesive,
stabilizer, or another additive (CGS § 22a-255h).
Penalties
By law, anyone who violates the packaging and packaging
component law is subject to a civil penalty of up to $10,000 per offense,
which the court sets. A violation includes making a false statement in a
certificate of compliance. The law makes each violation, and each day a 2021SB-00837-R02-BA.DOCX
Researcher: KLM Page 7 6/8/21
violation continues, a separate and distinct offense.
Knowingly violating this law, including false statements in
certificates of compliance, is punishable by a fine of up to $50,000, up
to one year in prison, or both. Each false statement is subject to the
possible fine.
The law also allows the DEEP commissioner to ask the attorney
general to seek an injunction to stop someone from continuing a
violation. It requires the attorney general, if asked by the
commissioner, to take court action to recover a civil penalty a court
imposes for a violation of these laws (CGS § 22a-255l).
Related Bill
sSB 926 (File 452), favorably reported by the Environment
Committee, generally prohibits, beginning October 1, 2023, offering for
sale or promotional purposes packages or packaging components with
detectable PFAS or PFAS that was introduced during manufacturing
or distribution.
COMMITTEE ACTION
Environment Committee
Joint Favorable Substitute
Yea 32 Nay 0 (02/26/2021)