EPA is Lining Up Its Ducks for Aggressive PFAS Enforcement

Hardly a day passes without the newspapers reporting on an EPA action, lawsuit, or governmental proposal regarding PFAS, a diverse group of chemicals used in the manufacture of many consumer, industrial, and commercial products. In some circumstances, PFAS usage can result in soil and groundwater contamination. Addressing PFAS contamination is a clear priority for EPA and enforcement agencies right now and aligns with the Biden Administration’s focus on drinking water issues.[1] Companies need to be aware of what EPA has already done on PFAS—and what EPA has recently signaled is coming.

Signs of Movement: A Roadmap; Civil & Criminal Enforcement Tools; Personnel; Money

In October 2021, EPA published its “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024”[2] outlining its ambitious attempt to develop plans to understand, limit, and remediate PFAS contamination. Notably, one of its goals encourages the use of enforcement tools (e.g., requests for information; inspections; and data collection) to assess potential liability for contamination. Although the “roadmap will not solve our PFAS challenges overnight,” as EPA Administrator Michael Regan stated two years ago, EPA’s actions to date illustrate clear intentions to continue on a pathway towards upstream and downstream restrictions and enforcement.

For example, EPA provided guidance regarding PFAS management in its April 2022 and December 2022 memoranda addressing PFAS discharges in EPA- and state-issued National Pollutant Discharge Elimination System (NPDES) permits.[3]  While the memoranda did not serve as binding federal regulations, NPDES-authorized states could choose to follow this PFAS guidance, setting the stage for future enforcement against unauthorized PFAS discharges in NPDES permits.

Subsequently, EPA could use such state-issued NPDES permits addressing PFAS discharges as a springboard for enforcement actions, and in fact, EPA recently did just that, using state permits as a “tool.” Consider a facility that is discharging industrial process water and stormwater under the terms of such an NPDES permit that includes PFAS limits. If that facility exceeds its permitted PFAS limits, EPA could then pursue enforcement actions regarding the PFAS limitations pursuant to the Clean Water Act - all without having promulgated any federal PFAS regulation. At this stage of PFAS-regulation, not many facilities have effluent limits for PFAS in their state-authorized permits; however, that situation most likely will change. And if or when that happens, EPA may have a direct path for enforcement actions involving PFAS discharges.

EPA is also utilizing its rulemaking authority under CERCLA as another tool to regulate PFAS contamination. In late 2022, EPA proposed to designate twuorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) -- as hazardous substances.[4] Tellingly, in April 2023, EPA requested public comment on a separate proposal to designate additional PFAS compounds or groups of compounds as hazardous substances under CERCLA.[5] If finalized, these rules would permit EPA, under CERCLA’s strict, joint, several, and retroactive liability schemes, to require potentially responsible parties to clean up sites contaminated by these PFAS. Given the extensive use of these chemicals, companies involved in the disposal of PFOA and/or PFOS (or other PFAS that may be designated as hazardous substances), and their successor companies, including water and wastewater utilities, must prepare to address legacy contamination, including remedial investigations and increased reporting requirements in the near future.

In addition to these scenarios, EPA and prosecutors pursuing criminal charges for violations of any federal pollution statutes could employ a frequently used sentencing tool: probationary terms. For instance, prosecutors could seek specific requirements the facility must meet during any sentenced term of probation. This is a powerful enforcement tool that can cross state boundaries. Consider an environmental criminal negligence conviction against a company in connection to actions taken at one of its facilities. A federal court could order, and often does in environmental prosecutions, not only a significant fine but also a term of probation during which the company would be required to provide full access to any of its operating locations for inspection by the federal government. Consider again, the impact this additional enforcement “tool” could have on large, multi-facility companies: the conviction of a company regarding actions taken only at one of its facilities – regardless whether that action involved PFAS contamination - could open the doors to all of its facilities to inspection, potentially without limitation.

Recently this month during an American Bar Association-sponsored presentation on Federal Environmental and Energy Litigation Updates, Stacey Geis, the newly appointed Senior Advisor with EPA’s Office of Enforcement and Compliance Assurance (OECA), confirmed our prediction regarding the potential use of this enforcement tool. Specifically, she highlighted the anticipated use of such a sentencing tool in future enforcement actions in contamination cases against big companies that can be used in future PFAS enforcement actions.

Now let us turn to OECA – the enforcement office that is key in all things PFAS. The office provides policy direction and pursues civil and criminal enforcement for all federal environmental statutes, often targeting entities believed to be the primary cause of pollution hazards. David Uhlmann is slated to head OECA, but his confirmation by the Senate has been stalled. However, the recent appointment of Stacey Geis, as Senior Advisor, signals that the office is positioned to and will aggressively enforce environmental laws, while Uhlmann actively serves as Deputy Assistant Administrator, waiting for confirmation. Geis was a federal prosecutor for over 25 years, most of which she focused on environmental crimes. Uhlmann was a federal prosecutor for ten years, and then served seven years as Chief of DOJ’s Environmental Crimes Section. With these two experienced prosecutors in place, EPA is setting the stage for aggressive enforcement.

Goals and a dedicated commitment only go so far without the resources, primarily financial, to realistically follow through with action. EPA, with the passing of legislation including the Bipartisan Infrastructure Bill in 2021 (also referred to as the Infrastructure Investment and Jobs Act), received more than $50 billion “to make transformational investments in the nation’s drinking water, wastewater, and stormwater infrastructure.”[6] The Bill dedicated another $5 billion to remediate legacy pollution at Superfund and brownfield sites. Overall, the Bill over the next several years, provides the necessary financial resources for EPA to actually move forward and address its PFAS policy action statements.

Key Takeaways

EPA has the roadmap; the funding; the tools; and the key personnel in place to move towards a more organized, aggressive enforcement effort against parties involved on any level of PFAS contamination, administratively, civilly, and criminally, as quickly as possible. In the past, EPA’s resources were limited but that is not the case today, and if the trajectory continues, regulated industries across the board, manufacturing or using products containing PFAS, will need to have their finger on the fast-moving pulse of legislation and enforcement. While EPA continues to build its knowledge base to fully understand the potential risks of PFAS compounds and how to regulate them, it is clear that EPA is equipped to use its enforcement tools now.

Crowell, with its team of experienced energy and environmental regulatory, investigation, and enforcement attorneys, will continue to monitor the stage, remain engaged with EPA, and provide updates on the Administration’s PFAS measures as they develop during this prime time. With this in-depth knowledge and range of corporate and government experience, our attorneys are equipped to provide effective representation and counseling at every step.