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On May 10, 2023, the Northeast Waste Management Officials’ Association, Inc. (NEWMOA) held a webinar to provide an overview and discuss the provisions of its PFAS Draft Model Legislation (draft model) that is intended to reduce the use of per- and polyfluoroalkyl substances (PFAS) in consumer products. Viewers had the opportunity to ask questions and provide comments regarding the draft. NEWMOA invites the submission of public comments until June 29, 2023, via publiccomments@newmoa.org.
Background
NEWMOA is a non-profit, non-partisan, interstate association whose membership is composed of the state environment agency programs from the northeast that address pollution prevention, toxics use reduction, sustainability, materials management, hazardous waste, solid waste, emergency response, waste site cleanup, underground storage tanks, and related environmental challenges. The PFAS Workgroup (Workgroup) that developed the draft model includes representatives of the Connecticut Department of Energy and Environmental Protection, Massachusetts Department of Environmental Protection, New Hampshire Department of Environmental Services, New Jersey Department of Environmental Protection, New York State Department of Environmental Conservation, Rhode Island Department of Environmental Management, and Vermont Department of Environmental Conservation.
In drafting the model, the Workgroup reviewed the latest information on PFAS, including exposure pathways to the environment and the impacts of PFAS on public health and the environment. The Workgroup considered both existing laws and current legislative proposals to address PFAS in consumer products. The Workgroup also relied on pieces of legislation previously implemented successfully in the states, such as rules on toxics in packaging passed starting in the early 1990s, mercury in production legislation passed starting in the early 2000s, and other bills related to high-priority chemicals of concern passed throughout the 2000s.
The draft model includes provisions and concepts that reflect current efforts to reduce PFAS use and minimize PFAS releases. NEWMOA states that the goals of the 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, phaseouts, source reduction, and end-of-life collection on a multi-jurisdiction basis;
- Help consumers identify products containing PFAS and learn how to handle them properly; and
- Provide regulated entities with regulatory certainty.
The draft legislation presents a menu of policy options for state policy makers to consider. The draft model includes provisions and concepts that reflect current efforts to reduce PFAS use and minimize PFAS releases. NEWMOA notes that “[t]he designers do not view the model as a set of provisions that must all be enacted together or at the same time. The model is designed to present a flexible set of concepts/options from which the jurisdiction policy makers can choose those that meet their jurisdictional priorities.” NEWMOA states that it is important that jurisdictions implement their efforts as consistently as possible for each option implemented, however. While NEWMOA developed this document and included policy concepts for consideration by the jurisdictions in the northeast, these concepts may also be useful as models for other jurisdictions and for efforts at the national level.
Overview of the Draft PFAS Model Act
The draft model defines PFAS and related concepts broadly and in a way that aligns with the Organization for Economic Cooperation and Development (OECD) definition of PFAS. According to that definition, more than 10,000 PFAS would be banned under the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation. More information regarding the latest developments in the European Union PFAS restriction proposal can be found in Bergeson & Campbell, P.C.’s (B&C®) April 7, 2023, memorandum.
According to NEWMOA, PFAS is defined as “all members of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” “PFAS-added product” is defined as “(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.” These definitions capture a significant number of PFAS and PFAS-containing products.
The draft model proposes to create an interstate clearinghouse, modeled after the Toxics in Packaging Clearinghouse (TPCH), the Interstate Mercury Education and Reduction Clearinghouse (IMERC), and the Interstate Chemicals Clearinghouse (IC2). The clearinghouse would help coordinate activities under the draft model. The clearinghouse may also maintain a database of all products containing PFAS, including PFAS-added products.
The draft model would implement a notification requirement that would take effect two years after adoption. All products containing PFAS would have to be notified if sold in a jurisdiction adopting laws based on the draft model. Failure to notify would result in a ban of the product in the jurisdiction.
As currently proposed, three years after adoption, all PFAS-added products would be banned, unless there is a determination of unavoidable use. Manufacturers could apply for an unavoidable use determination by demonstrating that:
- The product benefits the environment, public health, or public safety;
- There is no technically feasible alternative with less risk to human health or the environment; and
- There is no comparable non-PFAS-added product at a comparable cost.
The manufacturers of products that were granted an unavoidable use determination would have to continue complying with notification and labeling requirements, according to the draft model. Manufacturers would also have to apply for a renewal of the unavoidable use determination every two years.
The draft model would allow state agencies or downstream manufacturers in the supply chain to request a certification of compliance modeled after the certifications of compliance under the toxics in packaging laws. Manufacturers would be required to update the certification if they reformulate their products.
PFAS-added products or components that have been granted an unavoidable use determination would have to be labeled. The label would have to be visible prior to sale and affixed to the product in a manner that will last for the lifetime of the product. Similar to the mercury labeling requirements, the draft model provides that a state may approve alternative labeling plans.
Manufacturers of products that have been granted an unavoidable use determination would have to join a producer responsibility organization (PRO) for the take-back of PFAS-added products. The PRO would have to establish performance goals for the collection and appropriate management of PFAS-containing materials and would have to implement public education programs.
The draft model provides that four and eight years after its adoption, the state agency of the state that adopted legislation based on this draft model, in consultation with the interjurisdiction clearinghouse, would have to review the effectiveness of the act and would have to provide a report based upon that review to the Governor and the legislature. As part of this review, the state agency would evaluate the effectiveness of the collection systems for PFAS-containing products and would evaluate the need for additional incentives for manufacturers to phase out PFAS-added products that were granted an exemption from the ban.
Commentary
This is the first version of a draft model law, proposed by an interstate non-profit organization of northeastern states, and likely not the last. The goal is an ambitious project, and many are expected to comment, making any projection of timing or content uncertain. NEWMOA does not expect to publish a revised and final version of the draft model before fall 2023, a date that seems entirely optimistic.
The draft model proposes to regulate PFAS by definition, instead of by specific listing. A significant number of PFAS would be captured by the proposed definition. During the webinar, commenters voiced concern that such a broad definition would, according to some, indiscriminately ban many types of PFAS for which their utility outweighs any identified hazards and for which no feasible alternatives are known.
This approach to PFAS regulation is shared by a notable number of states. NEWMOA comprises representatives from eight northeastern states. These states have passed and are proposing some of the strictest and broadest legislation in the United States, imposing bans, restrictions, and reporting requirements for PFAS. Maine, a NEWMOA member, already enacted in July 2021 “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” Under the Act, manufacturers of products with intentionally added PFAS must report the presence of the intentionally added PFAS in those products beginning January 1, 2023. Beginning January 1, 2030, any product containing intentionally added PFAS may not be sold in Maine unless the use of PFAS in the product is specifically designated as currently unavoidable. More information regarding Maine’s PFAS legislation and February 14, 2023, proposed rule regarding notification requirements and sales prohibitions can be found in B&C’s February 17, 2023, memorandum. Comments on Maine’s proposed rule are due May 19, 2023, by 5:00 p.m. (EDT).
As NEWMOA representatives indicated during the webinar, the public is encouraged to provide comments on the draft model until June 29, 2023. Companies should consider commenting and submitting any information they consider useful to NEWMOA. If this draft model is an indicator of the direction in which PFAS bans are developing in the United States, then a broad range of products and industries will be impacted in the upcoming years.