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August 22, 2023

EPA’s National Enforcement and Compliance Initiatives for 2024-2027 Include Addressing PFAS and Chemical Accident Risk Reduction

Lynn L. Bergeson Carla N. Hutton

The U.S. Environmental Protection Agency (EPA) announced on August 17, 2023, its National Enforcement and Compliance Initiatives (NECI) for 2024-2027, “including for the first time initiatives to mitigate climate change, address exposure to [per- and polyfluoroalkyl substances (PFAS)] contamination, and protect communities from cancer-causing coal ash.” To advance the Biden Administration’s commitment to protect disadvantaged communities, EPA states that it also will integrate environmental justice considerations into each of its NECIs. The NECIs include:

  • Addressing Exposure to PFAS (new): According to the August 17, 2023, memorandum on the NECIs, due to the toxicity and persistence of PFAS, and the breadth and scope of PFAS contamination throughout the country, the Office of Enforcement and Compliance Assurance (OECA) selected Addressing Exposure to PFAS as a new NECI. The memorandum notes that OECA “has already taken a number of enforcement actions to ensure compliance with existing statutes, including action to address an imminent and substantial endangerment to communities.” OECA will increase those efforts, particularly where necessary to protect drinking water supplies, as part of this new initiative. In addition, if EPA designates perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), this NECI would focus on implementing EPA’s PFAS Strategic Roadmap “and holding responsible those who significantly contribute to the release of PFAS into the environment, such as major manufacturers and users of manufactured PFAS, federal facilities that are significant sources of PFAS, and other industrial parties.” If PFOA and PFOS are listed as hazardous substances, the memorandum states that “OECA does not intend to pursue entities where equitable factors do not support CERCLA responsibility, such as farmers, water utilities, airports, or local fire departments, much as OECA exercises CERCLA enforcement discretion in other areas.”

    The key goals of the PFAS NECI are to achieve site characterization, control ongoing releases that pose a threat to human health and the environment, ensure compliance with permits and other agreements to prevent and address PFAS contamination, and address endangerment issues as they arise. Initial goals include:
    • Identifying and characterizing the extent of PFAS contamination near PFAS manufacturing/use facilities, using authorities such as CERCLA, the Resource Conservation and Recovery Act, the Clean Water Act, and the Safe Drinking Water Act;
    • Performing oversight of PFAS characterization and control activities at federal facilities to ensure these facilities meet all environmental obligations and serve as a model for the regulated community; and
    • Continuing to address violations and imminent and substantial endangerment situations by major PFAS manufacturers, federal facilities, and other industrial parties that significantly contributed to the release of PFAS contamination into the environment.

Beginning in fiscal year (FY) 2025, EPA will build upon these initial goals by taking additional enforcement actions where appropriate. Activities under this NECI may expand if additional regulations are promulgated.

  • Chemical Accident Risk Reduction (continued from prior cycle): OECA selected Chemical Accident Risk Reduction as an initiative to continue into the next cycle. This initiative seeks to reduce risks to human health and the environment by decreasing the likelihood of chemical accidents. The memorandum states that OECA has found that many facilities regulated under the Risk Management Program (RMP) of Section 112(r) of the Clean Air Act “are neither adequately managing the risks they pose nor ensuring the safety of their facilities to protect workers, first responders, and surrounding communities (nearly half of which are communities with environmental justice concerns).” Failure to implement required risk management plans at facilities handling extremely hazardous substances can result in catastrophic accidents that cause fatalities and serious injuries, evacuations, and shelter-in-place orders. According to the memorandum, work will focus on inspecting and addressing noncompliance at facilities using two extremely hazardous substances that pose high risk to communities: anhydrous ammonia and hydrogen fluoride. OECA “will use all available enforcement tools to address violations of risk management requirements, including holding entities criminally responsible.”