NEWMOA Releases Draft PFAS Prevention Model Act
Kelley Drye Client Advisory
In recent months, state legislatures have introduced numerous regulations restricting the sale of consumer products containing per- and polyfluoroalkyl substances (PFAS) and adopting legal drinking water standards for the compounds. These regulations follow studies highlighting harm to humans and the wildlife posed by these “forever chemicals,” which are known for their environmental persistence and years-long degradation process. State PFAS laws have varied in stringency, particularly in the Northeast, where Maine, Vermont, Massachusetts, New Hampshire, New York, and Rhode Island, like many other states, have passed or proposed PFAS legislation.
On May 2, 2023, the Northeast Waste Management Officials’ Association, Inc. (NEWMOA) released its the Draft PFAS Prevention Model Act (“Draft Model”). The Draft Model offers a uniform but flexible package or “menu” of policy options for state policy makers to consider to address PFAS contamination and exposure. Among these policies include a total ban on most PFAS-containing consumer products within three years, as well as a new multi-jurisdictional “clearinghouse” to assist state environmental agencies with compliance and enforcement of the act.
While much of the Draft Model seeks to unify differing state legislation, the “clearinghouse” proposal is truly groundbreaking. The clearinghouse would oversee a producer responsibility program to take back PFAS-added products. Like other producer responsibility programs, Section 9 of the draft legislation requires manufacturers of PFAS-containing products to support a public education element or performance goal for collection of PFAS-added products and requires appropriate management of PFAS containing materials for disposal. Further, Section 4 of the draft legislation authorizes implementing state agencies to
[P]articipate in the establishment and implementation of a multi-jurisdiction clearinghouse 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 any other related functions.
In addition, the Draft Model has language allowing the clearinghouse to “maintain 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.”
NEWMOA stated that the overarching goal of the Draft Model is to enable “virtual elimination of the environmental releases of PFAS into the environment.” For example, like pending or enacted laws in several states, the Draft Model targets disclosure and reduction of “intentionally added PFAS.” The Draft Model defines intentionally added PFAS as:
[T]he PFAS added to a product or one of its product components, or PFAS or precursors added to a product during its manufacture, processing, packaging, or storage. “Intentionally added PFAS” also includes any degradation by- products of PFAS. The use of PFAS or precursors as a processing agent, mold release agent or any other source of PFAS in the product that is reasonably known to be present is considered intentional introduction for the purposes of this Act.
The Draft Model features the following notable provisions:
Sections 1-3 contain definitions of key terms in the subsequent sections, including the above “intentionally added PFAS.”
Section 4: Interjurisdiction Clearinghouse – Under this section, relevant agencies would be authorized to participate in the establishment and implementation of a multi-jurisdiction clearinghouse. The clearinghouse would maintain a database of all products containing PFAS, including PFAS-added products.
Section 5: Notification – Under this section, no PFAS-added product  shall be sold in the relevant jurisdiction after two years from the effective date of the legislation, without prior notification in writing by the manufacturer of the product to the named agency. Products containing PFAS that are sold without such notification will result in a ban of sale.
Section 6: Restrictions on Sale of PFAS-added Products – Under this section, no product with PFAS-added (in any amount) shall be sold in the relevant jurisdiction within three years of the adoption of such legislation, unless the named agency has determined the addition of PFAS to be a currently unavoidable use of PFAS. Considerations to determine if a use is “currently unavoidable” included the following: 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.
Section 7: Certificate of Compliance – Upon request by the named agency, a Certificate of Compliance stating that the product is in compliance with the requirements of this Act shall be furnished by its manufacturer or supplier.
Section 8: Labeling of PFAS-added Products – No product that has been determined to have a currently unavoidable use of PFAS may be sold in the relevant jurisdiction unless that product is labeled as containing PFAS by the manufacturer.
Section 9: Extended Producer Responsibility for PFAS-containing Products – Within three years, no product that has been determined to have a currently unavoidable use of PFAS shall be sold in the relevant jurisdiction unless the manufacturer submitted a plan for a convenient and accessible collection system for consumers when products are discarded. Within a year of the jurisdiction’s approval of the collection system plan, the manufacturer shall ensure the plan is in full operation. Two years after the implementation of the system, the manufacturer shall be required to submit a report on the effectiveness of the collection system, including the amount of PFAS that was diverted, and the capture rate for the PFAS-added products. The collection system plan shall include a public education program.
Section 10: Jurisdiction Procurement Preferences for Non-PFAS-Added Products – Within three years of the effective date of this section, the jurisdiction procurement administrator shall give priority and preference to the purchase of equipment, supplies, and other products that contain no PFAS-added compounds or components, unless there is no economically feasible non-PFAS-added alternative that performs a similar function.
Sections 11-13 create space for jurisdictions to add provisions for Rulemaking, civil penalties for violations of the preceding sections, and Public Notification and Review.
Section 14: Jurisdiction Review – the agency shall review the effectiveness of this Act in consultation with the Interjurisdiction Clearinghouse four and eight years after its adoption, and provide a report based on the effectiveness of the programs, and recommendations.
Sections 15-18 account for a severability clause, effective date, administrative fees and regulations, and appropriations provisions.
NEWMOA clarified that they do not view the Draft Model as a set of provisions that must all be enacted together or at the same time.
At a public hearing last week, questions were posed regarding the Draft Model’s definition of “intentionally added” PFAS, and how the legislation will impact pending PFAS bills such as those in Maine and Massachusetts. In response, NEWMOA emphasized that they are seeking written public comment on the Draft Model until June 29, 2023, through which they urge stakeholders to raise questions and concerns. The group also noted that the timeline for the finalized model legislation is expected around the close of summer 2023, depending on the volume of comments.
We would be glad to answer any questions you have about this model legislation. For more information, please contact Steven Humphreys, Andrew Homer, Bill Jackson, Joseph Green, Sabrina Morelli or Zachary Lee.