On January 19, 2023, the United States Environmental Protection Agency (“EPA”) issued a Press Release announcing that it is seeking public comment on its proposal to address environmental justice, climate change, and per- and poly-fluoroalkyl substances (“PFAS”) contamination in its National Enforcement and Compliance Initiatives (“NECIs”) for fiscal years 2024-2027. (https://www.epa.gov/newsreleases/epa-proposes-add-environmental-justice-climate-change-and-pfas-national-enforcement). The EPA’s announcement is in keeping with tradition, as every four years, the EPA selects national initiatives “to focus resources on serious and widespread environmental problems where federal enforcement can make a difference.”
The EPA proposes to continue four of the six current national initiatives, indicating that it believes those topics remain nationwide issues that need to be further addressed. They are:
- Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants;
- Reducing Risks of Accidental Releases at Industrial and Chemical Facilities;
- Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System (“NPDES”) Program; and
- Reducing Non-Compliance with Drinking Water Standards at Community Water Systems
The key items stirring interest, though, are the EPA’s proposal to address environmental justice concerns in all NECIs, and to add two new NECI’s to the list for the FY2024-2027 cycle:
- Mitigating Climate Change; and
- Addressing PFAS Contamination
According to a January 12, 2023, Federal Register Notice (https://www.federalregister.gov/documents/2023/01/12/2023-00500/public-comment-on-epas-national-enforcement-and-compliance-initiatives-for-fiscal-years-2024-2027), the EPA developed the proposed NECIs in alignment with its continued emphasis on tackling the climate crisis and promoting environmental justice. Since promoting environmental justice by reducing public health impacts and environmental harm in vulnerable and overburdened communities is a core element of all EPA enforcement and compliance work, the EPA has incorporated environmental justice considerations into every NECI rather than promulgating a new stand-alone NECI.
The potential new NECI on climate change seeks the use of available compliance and enforcement tools to, among other things: tackle illegal import, production, use, and sale of hydrofluorocarbons (“HFCs”); reduce excess emissions from sources within specific industrial sectors, including municipal solid waste landfills and oil and natural gas production facilities; and reduce non-compliance with other climate-sensitive requirements (e.g., mobile source and methane regulations). The EPA points out that although it has incorporated climate considerations in the current initiatives, this potential new NECI would be hyper-focused on achieving the EPA’s climate change mitigation goals.
The potential new NECI on PFAS contamination seeks to address the widespread PFAS contamination that is being found exists in all media: drinking water; surface water; groundwater; soil; sediment; and air. There are thousands of PFAS chemicals that are widely used in such common items as fire extinguishing foam, chrome plating, electronics, fast food containers, pizza boxes, microwave popcorn bags, stain and water repellants, paints and varnishes, cleaning products, and non-stick cook wear. All PFAS chemicals are persistent in the environment. As a result, understanding the health concerns of exposure to PFAS and addressing PFAS contamination are priority items to the EPA. The EPA Federal Register Notice explains that EPA proposes to focus on implementing the commitments to action made in the EPA’s 2021-2024 PFAS Strategic Roadmap (https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf). In that Strategic Roadmap, EPA committed to holding polluters and other responsible parties accountable for their actions, ensuring that they assume responsibility for characterization and remediation efforts and prevent future releases of PFAS. The Federal Register Notice also emphasizes that a PFAS NECI 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.”
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Warren A. Koshofer is a Principal in the firm’s Commercial Litigation practice group. Mr. Koshofer focuses his practice on contract matters, intra-company disputes, insurance coverage and defense, toxic tort defense, real estate disputes, and construction-related matters, as well as due diligence and indemnification relating to company mergers and acquisitions. He represents clients—including Fortune 100 companies, partnerships and high-profile individuals — at the state, federal, trial and appellate court levels. He also handles matters before administrative law courts, regulatory agencies, and alternative dispute resolution forums across the country. Mr. Koshofer’s clients expand across many industries, including insurance, manufacturing, financial and hospitality.