NEWMOA Announces Draft PFAS Prevention Model Act

In May 2023, the Northeast Waste Management Officials’ Association (NEWMOA) released a draft PFAS Prevention Model Act (Draft Model Act), model legislation for states to use in advancing the reduction of the use of polyfluoroalkyl substance (PFAS). NEWMOA is a non-profit interstate organization composed of the state environmental agency directors of hazardous waste, solid waste, waste site cleanup, emergency response, pollution prevention, and underground storage tank programs in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.

NEWMOA seeks to reach the goal of the “virtual elimination of the environmental releases of PFAS into the environment. NEWMOA outlined the following six main goals of this initiative:

  • Reduce/eliminate the use of PFAS in consumer products to the extent feasible.
  • Identify and implement source reduction programs.
  • Ensure that the substitutes for PFAS in products are safer and that there is no regrettable substitution.
  • Coordinate product disclosure, labeling, bans, phase-outs, source reduction, and end-of-life collection on a multi-jurisdiction basis.
  • Help consumers identify products containing PFAS and learn how to properly handle them.
  • Provide regulated entities with regulatory certainty.

To achieve these goals, NEWMOA has put forth what it refers to as a “menu of policy options” that legislators can weigh in their efforts to address PFAS contamination and exposure. By choosing from these options, NEWMOA purports states can adopt more consistent approaches to regulating PFAS-containing products.

The Draft Model Act contains 18 sections, beginning with relevant definitions developed by adapting definitions provided in the Toxics in Packaging Clearinghouse’s model legislation and existing PFAS laws.

The most unique aspect of the Draft Model Act is Section 4, which proposes the creation and implementation of a multijurisdictional clearing house. The role of the clearing house would be to “assist in carrying out the requirements of this Act and to help coordinate collection and reviews of the manufacturers’ notifications regarding PFAS-added products, applications for phase-out exemptions, the collection system plans, applications for alternative labeling/notification systems, education and outreach activities, and other related functions.” The clearinghouse would additionally be responsible for maintaining a database of “all products containing PFAS, including PFAS-added products; a file on all exemptions granted by the participating jurisdictions; a file on alternative labeling plans; and a file of all the manufacturers’ reports on the effectiveness of their collection systems.”

Additional notable provisions include:

  • Requiring PFAS-product manufacturers to provide notice to the relevant agency before the sale of the product in the relevant jurisdiction; if products are sold without the notification, a ban will be placed on the product.
  • Banning the sale of PFAS-added products in the relevant jurisdiction unless the relevant agency has determined that the use of the product is “currently unavoidable” (defined as whether the product is determined to be beneficial to the environment or protective of public health or protective of public safety; there is no technically feasible alternative that has less risk to human health or the environment to use of PFAS in the product; and there is no comparable non-PFAS-added product available at a reasonable cost”).
  • PFAS-added products that qualify for sale under a “currently unavoidable” use must have a label stating that the product contains PFAS.
  • Manufacturers must have an extended producer responsibility plan for a PFAS-containing product collection system, which will require approval from the relevant agency.

NEWMOA has accepted written public comment on the Draft Model Act and aims to finalize the model legislation by the end of summer 2023.