The Environmental Protection Agency (EPA) announced it is seeking public comment on its proposal to address environmental justice, climate change and per- and polyfluoroalkyl substances (PFAS) contamination in its National Enforcement and Compliance Initiatives (NECIs). Every four years, the EPA selects specific and widespread environmental problems in which it believes federal enforcement can make a difference. The EPA then focuses its compliance enforcement resources on these environmental issues by developing and implementing national program initiatives. The goal of NECIs is to protect human health and the environment by holding polluters responsible for their actions through enforcement and assisting regulated entities to return to compliance.

The NECIs for fiscal years (FY) 2024–2027 will be evaluated using three criteria:

1. The need to address serious and widespread environmental problems and significant violations affecting human health and the environment, particularly in overburdened and vulnerable communities
2. The need to use federal enforcement to ensure national consistency and compliance
3. Alignment with the EPA’s overall strategic priorities

Of the six current national initiatives, the EPA proposes continuing four:

1. Creating cleaner air for communities by reducing excess emissions of harmful pollutants
2. Reducing risks of accidental releases at industrial and chemical facilities
3. Reducing significant noncompliance in the National Pollutant Discharge Elimination System (NPDES) Program
4. Reducing noncompliance with drinking water standards at community water systems

Additionally, the EPA proposes to add two new NECIs in the FY 2024–2027 cycle:

1. Mitigating climate change

Climate change poses a substantial risk to public health and safety, water resources, agriculture, infrastructure and ecosystems. The potential climate NECI would seek to combat climate change through a focus on reducing noncompliance with the import, production, use and sale of hydrofluorocarbons (HFCs) pursuant to the American Innovation and Manufacturing Act of 2020, excess emissions from sources within certain industrial sectors, and noncompliance with other requirements such as mobile source, fuels and methane regulations.

2. Addressing PFAS contamination

PFAS are a group of man-made chemicals that have been widely used in a variety of consumer products due to their desirable chemical properties. In 2022, the EPA indicated that it would take a more aggressive stance on PFAS. It developed a strategic roadmap for 2021–2024, setting timelines by which it plans to take specific actions, identifying three main directives: 1) research PFAS exposure; 2) restrict PFAS from entering the environment; and 3) remediate PFAS releases. The EPA has taken several actions toward this directive, most recently proposing a PFAS NECI.

The proposed PFAS NECI emphasizes the EPA’s intention to identify and pursue potentially responsibility parties for PFAS contamination, including under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In enforcing the initiative, the EPA would work in conjunction with states, where appropriate, to supplement PFAS enforcement efforts already performed by state entities across the country. If implemented, the PFAS enforcement initiatives could pose considerable consequences to companies that currently use, manufacture, or dispose of PFAS or PFAS containing materials, along with those that previously did so.

The EPA’s actions in 2022 and early 2023 demonstrate that the agency is prioritizing the regulation of PFAS. Those potentially affected companies should be proactive by identifying and, when feasible and appropriate, implementing measures to reduce their potential PFAS footprint, particularly in environmental justice communities, consistent with the company’s environmental, sustainability and governance objectives. Finally, keeping in mind the EPA’s stated intent to evaluate CERCLA “equitable facts” as part of PFAS enforcement efforts, companies should begin preparing their equitable defenses to possible EPA enforcement action relating to PFAS.

The EPA has invited the public to comment on and propose any other areas for consideration as it moves forward in its decision-making process. Public comments on the proposal are due by March 13, 2023. As the situation progresses, we will continue to provide updates concerning potential impacts on future litigation and measures companies can take to reduce potential liability.