Delaware restricts PFAS firefighting foam and requires gear notices

Beginning January 1, 2028, manufacturers may not make, knowingly sell, offer for sale, or distribute in Delaware class B firefighting foam with intentionally added PFAS. Class B foam is designed to suppress fires involving flammable liquids. The exemption is for operators of bulk petroleum facilities. Bulk petroleum facility operators may apply to DNREC for an exemption to purchase, store, use, and distribute this foam for emergency class B fires. DNREC may grant or extend an exemption only if the operator provides clear and convincing evidence that no compliant, commercially available alternative can suppress a large tank or emergency class B fire, along with foam-use, transition, and containment information. An exemption lasts 5 years; an operator may request additional 2-year extensions, up to 13 years total. The restriction begins January 1, 2028. An approved exemption lasts 5 years, with possible 2-year extensions up to 13 years total.

Manufacturers must notify State sellers in writing about the chapter's rules and, by March 1, 2028, recall prohibited foam and reimburse its purchaser. These duties cover manufacturers that produce, sell, or distribute class B foam prohibited by the chapter. The recall and reimbursement duty does not apply if the purchaser obtains an exemption under the bulk petroleum facility section. A recall must provide for safe transport and storage and document the foam's amount and storage location until DNREC identifies a safe disposal technology. Manufacturers must send DNREC documentation certifying compliance with the recall requirement. Written notice is due by January 1, 2027; recall and reimbursement are due by March 1, 2028.

Starting January 1, 2027, manufacturers and sellers must give buyers written notice when they sell firefighting protective gear containing PFAS. The notice applies to sales to any person, local government, or State agency. The notice must say the gear contains PFAS and explain why PFAS was added. The seller must keep the notice for at least 3 years from the sale and provide the notice and related sales records to DNREC within 60 days of a request. A violation carries a $100 civil penalty per occurrence. The notice duty begins January 1, 2027; the three-year record period starts on the date of each sale.