EPA Announces New Enforcement Priorities on Climate Mitigation and PFAS; Solicits Public Comment and Recommendations

Last week, the Environmental Protection Agency (EPA) announced its proposed National Enforcement and Compliance Initiatives (NECIs) for fiscal years 2024-2027. 88 Fed. Reg. 2093 (Jan. 12, 2023). The proposal describes the six current initiatives for fiscal years 2020-2023, announces the EPA’s intention to continue some of those initiatives through the next cycle, introduces two new initiatives, and proposes an end to the agency’s focus on two initiatives.

New Priorities

The new enforcement priorities are: (1) mitigating climate change and (2) addressing poly-fluoroalkyl substances (PFAS) contamination. The first new item, climate mitigation, is consistent with the focus of the Biden Administration and EPA political leadership. It leaves open a number of significant questions as to how EPA’s Office of Enforcement and Compliance Assurance (OECA) will implement this potential new priority in practice.

The proposal suggests the climate change initiative will direct EPA resources toward reducing non-compliance with illegal import, production, use, and sale of hydrofluorocarbons (HFCs); excess emissions from sources within certain industrial sectors, including municipal solid waste landfills and oil and natural gas production facilities; and non-compliance with “other requirements such as mobile source, fuels, and methane regulations.” 88 Fed. Reg. 2096. The proposal asserts that enforcement in this area will “reduce climate disruption and the increases in global temperatures that are likely to occur without enforcement of the EPA’s climate mitigation regulations.” Since EPA only recently adopted rules to phase down HFCs under the AIM Act, we would anticipate that enforcement efforts will take time to develop and evaluate the effectiveness of the new regulations’ compliance program. Regarding excess greenhouse gas emissions, we would anticipate that EPA will seek to maximize “bang for the buck,” focusing first on the most significant cases, especially involving methane, which has much greater near-term climate impacts than equivalent mass emissions of carbon dioxide.

Beyond those industries specifically identified in the proposal, the scope of potentially impacted regulated parties is extremely broad and includes numerous regulatory programs, including the Renewable Fuel Standard (RFS) program and the greenhouse gas (GHG) emissions standards applicable to vehicles.

The proposal states that potential action to address PFAS contamination would focus on the commitments EPA made as part of the agency’s 2021-2024 PFAS Strategic Roadmap (Roadmap). Under the Roadmap, EPA’s main goals are to better understand PFAS via increased research, to comprehensively restrict PFAS through regulations and voluntary programs, and to broaden and accelerate cleanup of PFAS contamination. Under a PFAS enforcement and compliance initiative, EPA likely would focus first on identifying exposures that pose the greatest threat to human health and the environment, and then pursue enforcement against those responsible for those exposures. Relatedly, EPA recently proposed a rule that would designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as CERCLA Hazardous Substances. 87 Fed. Reg. 54415. Should that rule be finalized, EPA would likely use its new authority under CERCLA to target remediation of PFOA and PFOS contamination. In addition, EPA recently took enforcement action under the Toxic Substances Control Act to address PFAS contamination in plastic containers used to store pesticides (see USA v. Inhance Technologies LLC, 2:22-cv-05055, E.D. Pa). Enforcement focused on PFAS could be wide-ranging and pursuant to all laws under EPA’s jurisdiction.

Continuing Priorities

The proposal suggests continuation of four of the six currently active enforcement initiatives that prioritize reducing excess emissions of harmful pollutants, reducing risks of accidental releases at industrial and chemical facilities, reducing non-compliance in the National Pollutant Discharge Elimination System (NPDES), and reducing non-compliance with drinking water standards in community water systems.

De-Emphasis on Defeat Devices and Toxics From Hazardous Waste Facilities

EPA proposed to return the initiatives focused on defeat devices and toxic air emissions from hazardous waste facilities to the standard “core” enforcement program. The defeat device initiative focused enforcement resources on stopping the manufacture, sale, and installation of defeat devices on vehicles and engines used on public roads, as well as on nonroad vehicles and engines.

Since the program’s inception in 2020, the EPA has been clamping down on companies that manufacture and sell hardware and software designed to defeat required emissions controls on vehicles and engines in order to curb excess pollution. Over the last three years, the EPA has resolved approximately 130 cases, addressing over 460,000 violations, and in 2022 alone, levied over $19 million in civil penalties. 88 Fed. Reg. at 2096. The California Air Resources Board, which also regulates motor vehicle and engine emissions, has not announced similar intentions to shift focus away from defeat device enforcement and, thus, it is unclear to what extent this shift will impact the industry.

The EPA’s initiative focusing on reducing hazardous air emissions from hazardous waste facilities began in 2017. The goal of this program was to ensure that treatment, storage and disposal facilities, and large quantity generators comply with Resource Conservation and Recovery Act requirements. In the 6 years that the EPA has been prioritizing this effort, it has concluded 362 addressing actions, including 101 enforcement cases, and prevented the release of over 120 million pounds of total air pollutants to the environment. 88 Fed. Reg. at 2096. Through this program, the EPA has provided training to states and the industry in order to improve future compliance. The EPA has maintained that it will continue to build state capacity despite concluding the initiative.

A proposed return to the “core” enforcement program does not mean that the EPA will no longer seek to enforce regulations relating to the initiative. Rather, it indicates that the agency is shifting resources away from the formerly prioritized initiatives, but will continue to address those issues by enforcement and compliance assurance measures, as appropriate.

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The public is invited to comment on the new priorities and the continuing and de-emphasized priorities, as well as propose any other areas for consideration as NECIs. Comments must be received on or before March 13, 2023.

* Rayne Ellis contributed to this blog. Ms. Ellis is a graduate of New York University School of Law and is employed at Arnold & Porter's New York, NY office. Ms. Ellis is not admitted to the practice of law in New York.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.