The Northeast Waste Management Officials’ Association (NEWMOA), a non-profit interstate association composed of members from environmental agencies in seven northeastern states[1], recently published draft model legislation that aims to provide a comprehensive framework for addressing the production, sale, and disposal of products containing “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS.” This model legislation seeks to encourage a consistent approach to addressing PFAS and PFAS containing products among the member states and nationally. NEWMOA is currently accepting public comments for the Draft Model Legislation until June 29, 2023, midnight Eastern. Public comments and suggestions may be submitted to publiccomments@newmoa.org.

According to NEWMOA, the goals of this draft model legislation are to:

• 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 are no regrettable substitutes;
• Coordinate product disclosure, labeling, bans, phase-outs, source reduction, and end-of-life collection on a multi-state basis;
• Help consumers identify products containing PFAS and learn how to properly handle them; and
• Provide regulated entities with regulatory certainty.

This is the first example of regional model legislation addressing PFAS comprehensively and describes itself as a “menu of policy options for state policy makers to consider.” The legislation draws “most of [its] elements” from enacted non-PFAS legislation and regulations in various states, including:

• Establishment of an Interstate Clearinghouse: Modeled after the Toxics in Packaging Clearinghouse (TPCH) enacted laws in 19 states, the Interstate Mercury Education and Reduction Clearinghouse (IMERC) and the Interstate Chemicals Clearinghouse (IC2).
• Notification Requirements: Modeled after mercury reduction legislation enacted in Connecticut, Louisiana, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont and the Maine’s PFAS law[2].
• Restrictions on Sale of PFAS-added Products: Modeled after the Toxics in Packaging Clearinghouse (TPCH) enacted or proposed and mercury reduction legislation product bans and phaseouts enacted by many states. No product that falls outside of the enumerated “unavoidable” uses may be sold in the jurisdiction, and manufacturers must notify retailers of the restriction and its takeback program.
• Labeling of PFAS-added Products: Modeled after mercury labeling legislation enacted in CT, LA, ME, MA, MN, NH, RI, and VT. Products determined to have a currently unavoidable use of PFAS must bear labels that are clearly visible, inform the purchaser of its PFAS contents, and remain legible for the product’s useful life, unless one of the statutory alternatives is met.
• Producer Responsibility for PFAS containing products: Modeled after other Extended Producer Responsibility (EPR) laws. This provision requires manufacturers to create or participate in a comprehensive collection program to address disposal of its PFAS-containing products.

The draft model legislation also requires purchases by the state or “by others with jurisdiction funds” to give preferential treatment to “equipment, supplies, and other products that contain no PFAS-added compounds or components” unless there is no “economically feasible” alternative that performs a similar function. If there is no alternative, preference is still given to the products with the “least amount” of PFAS necessary to achieve required product performance.

Elsewhere, the draft model legislation provides comprehensive definitions of the terms “PFAS,” “PFAS-added product,” “intentionally added PFAs,” “manufacturer” and “retailer,” the meaning and scope of which can often vary from state to state and are often the subject of stakeholder confusion:

“Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means: all members of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

“PFAS-added product” means: (1) a product, commodity, chemical, or a product component that was manufactured after the effective date of this act; and (2) that contains PFAS intentionally added to the product, commodity, chemical, or product component. These products include formulated PFAS-added products, packaging, and fabricated PFAS-added products.

“Intentionally added PFAS” means: the 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.

“Manufacturer” means: any person, firm, association, partnership, corporation, organization, combination, or joint venture which produces a PFAS-added product, or an importer or domestic distributor of a PFAS-added product produced in a foreign country. In the case of a multi- component PFAS-added product, the manufacturer is the last manufacturer to produce or assemble the product. If the multi-component product is produced in a foreign country, the manufacturer is the importer or domestic distributor.

“Retailer” means: a person who sells a PFAS-added product in the Jurisdiction through any means, including a sales outlet, a catalogue, the telephone, the Internet, or any electronic means.

As states across the country continue to enact legislation focused on addressing the production, sale, and disposal of PFAS and PFAS-containing products, this draft model legislation could be the first of many attempts at regional cohesion and collaboration in establishing a legislative and regulatory framework. NEWMOA conducted a webinar discussing the draft model legislation that can be found on the NEWMOA website.

As previously stated, the public comment period for the Draft Model Legislation is open until June 29, 2023, midnight Eastern. Public comments and suggestions may be submitted to publiccomments@newmoa.org.

[1] The agencies involved include the Connecticut Department of Energy and Environmental Protection (CT DEEP), the New Hampshire Department of Environmental Services (NH DES), the Massachusetts Department of Environmental Protection (Mass DEP), the New Jersey Department of Environmental Protection (NJ DEP), the New York State Department of Environmental Conservation (NYSDEC), the Rhode Island Department of Environmental Management (RI DEM) and the Vermont Department of Environmental Conservation (VT DEC).

[2] An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, Public Law c. 477 (July, 15, 2021). Maine DEP also issued a “concept draft” of proposed regulations that build upon the state legislation’s notice requirements.