O F F I C E O F L E G I S L A T I V E R E S E A R C H
P U B L I C A C T S U M M A R Y
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PA 21-191—sSB 837
Environment Committee
AN ACT CONCERNING TH E USE OF PERFLUOROAL KYL OR
POLYFLUOROALKYL SUBS TANCES IN CLASS B FI REFIGHTING
FOAM
SUMMARY: This act 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 act, 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 act 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 generally 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.
Despite this ban, the act allows foam usage for vapor suppression or
firefighting by (1) anyone required to use it under federal law; (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 food packaging, the act prohibits (1) by December 31, 2023,
manufacturers and distributors from offering for sale or promotional 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 act expands the procedures required 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 act’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 act 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. O L R P U B L I C A C T S U M M A R Y
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Lastly, the act makes minor, technical, and conforming changes.
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 act generally prohibits using class B
firefighting foam with intentionally added PFAS for vapor suppression or
firefighting purposes. However, the act 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 act 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) an airport-related entity, until October 1, 2023, if it has a fire suppression
system that uses the foam and has measures to prevent its release into the
environment (see below).
Extension of Time to Comply. Under the act, 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 act allows the commissioner to grant up to a two-year extension if she
determines that it is needed to remove or repurpose a fire suppression system
containing the foam.
Airport Entities. The act exempts, until October 1, 2023, fire suppression
systems containing the foam that are used by airport-related entity facilities as
long as, by the date of the act’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 act requires the suppression systems to be
removed entirely or repurposed so that the foam is removed from them.
Enforcement
The act authorizes the DEEP commissioner, within available appropriations,
to enforce the restrictions on using this firefighting foam.
§§ 2-4 — PACKAGING AND PACKAG ING COMPONENTS O L R P U B L I C A C T S U M M A R Y
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PFAS in Food Packaging
The act 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.
Under the act, “food packaging” is a package or packaging component applied
to or in direct contact with food or beverage. Additionally, the act considers
“intentional introduction” of 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 act also specifies that it is not considered “intentional
introduction” to use some amounts of PFAS in the part 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 act, “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
Prior law allowed product manufacturers and distributors to show that they
complied with the law’s composition restrictions by providing a certificate of
compliance stating that they relied on the written assurance from the manufacturer
about a package’s or component’s content. The provision applied to the following
four metals: lead, cadmium, mercury, and hexavalent chromium.
The act replaces and expands upon these provisions. Under the act, upon
request by either a packaging or packaging component purchaser or the DEEP
commissioner, a manufacturer or distributor must provide a certificate of
compliance, stating that it meets the law’s content requirements for either PFAS
or the four metals. As under prior law, (1) the certificate must be signed by an
authorized official of the manufacturer or distributor and (2) 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 act, such 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 O L R P U B L I C A C T S U M M A R Y
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authorized representative, such as a packaging clearinghouse.
Amended Certificates
If a package or packaging component manufacturer or distributor reformulates
or creates a new package or component, the act requires it to amend the applicable
certificate of compliance for the reformulated or new product.
Suspected Violation
Under the act, 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
act, she may ask its manufacturer or distributor to provide a certificate of
compliance within the next 30 days.
The act 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. Each
violation, and each day a violation continues, is 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 (CGS § 22a-255l).