The notice is another step in EPA’s PFAS Strategic Roadmap and emphasizes potential CERCLA enforcement.

By Kegan A. Brown, Gary P. Gengel, Thomas C. Pearce, and Taylor R. West

On January 12, 2023, the US Environmental Protection Agency (EPA) issued a notice to solicit public comments on its National Enforcement and Compliance Initiatives (NECI) for Fiscal Years 2024-2027. The notice proposes a new NECI to address per- and polyfluoroalkyl substances (PFAS) contamination, with a “focus on implementing the commitments to action made in EPA’s 2021-2024 [PFAS] Strategic Roadmap.”[1]

The proposed PFAS NECI emphasizes EPA’s intention to identify and pursue potentially responsible parties for PFAS contamination, including under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

What Are NECIs?

EPA develops NECIs every four years to focus the agency’s resources on “serious and widespread environmental problems where federal enforcement can make a difference.”[2] The primary objective of NECIs is to “protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance.”[3] NECIs reflect EPA’s enforcement efforts on a national scale over and above its standard or “core” enforcement programs.

The NECIs for Fiscal Years 2024-2027 will be evaluated using three criteria: (1) the need to address serious and widespread environmental problems and significant violations impacting human health and the environment, particularly in overburdened and vulnerable communities; (2) the need to use federal enforcement to ensure national consistency and compliance, and (3) alignment with EPA’s overall strategic priorities (i.e., addressing climate change and environmental justice concerns).

The Proposed PFAS NECI

The new PFAS NECI “initially would focus on identifying the extent of PFAS exposures that pose a threat to human health and the environment and pursuing responsible parties for those exposures.”[4] The notice identifies various types of environmental media as well as “product exposures” as potential PFAS exposure routes for “communities and ecosystems.”[5] This effort would be advanced in part by working with EPA’s “State partners,” including by supplementing PFAS enforcement activities already occurring at the state level.[6]

Notably, the notice provides that “to the extent that PFAS cleanup efforts occur under CERCLA” — EPA’s proposed rule to list perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as “hazardous substances” under CERCLA is currently pending — EPA “will develop a CERCLA enforcement discretion and contribution protection settlement policy regarding PFAS contamination.”[7] EPA further “intends to focus enforcement efforts” on “PFAS manufacturers” and “federal facilities” that may be “significant” sources of contamination.[8] Conversely, EPA “does not intend to pursue entities where equitable factors do not support assigning CERCLA responsibility.”[9]

The notice also explains that EPA developed the proposed NECI consistent with EPA’s “emphasis on tackling the climate crisis and promoting environmental justice.”[10] While EPA is addressing climate change mitigation through a separate NECI, “[p]romoting environmental justice, on the other hand, is a core element of all enforcement and compliance work and we are incorporating those considerations in every NECI – existing ones that we propose to retain as well as proposed new initiatives.”[11] In other words, EPA appears to be considering environmental justice in the context of its PFAS NECI.

What Is EPA’s PFAS Strategic Roadmap?

EPA’s PFAS Strategic Roadmap, announced on October 18, 2021, is a multi-year, multi-disciplinary plan to address PFAS. It includes, among other things, a timeline by which EPA will take action to address PFAS contamination, with goals to (1) research and monitor specific PFAS and their potential risks to human health and the environment, (2) restrict the introduction of PFAS into the environment by reducing the frequency and extent of ongoing and potential future releases of PFAS, and (3) remediate PFAS contamination in the environment.

Implications for Companies

The proposed addition of a PFAS NECI demonstrates EPA’s continued focus on addressing PFAS contamination in earnest. Companies that historically or currently manufacture, use, discharge, or dispose of PFAS or PFAS-containing materials could be targeted by EPA to address PFAS contamination.

Potentially affected companies should consider proactively identifying and, when feasible and appropriate, start implementing measures to reduce their potential PFAS footprint, particularly in environmental justice communities, consistent with the company’s environmental, sustainability, and governance objectives. In addition, given EPA’s stated intent to evaluate CERCLA “equitable factors” as part of PFAS enforcement efforts, potentially affected companies should begin preparing their equitable defenses to possible EPA enforcement action relating to PFAS.

This blog post was prepared with the assistance of Chuanyi Qi in the New York office of Latham & Watkins.

Endnotes

[1] 88 Fed. Reg. 2093, 2096.

[2] Id. at 2094.

[3] Id.

[4] Id. at 2096.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.