Environmental Enforcement To Focus On Climate Change And PFAS – Climate Change

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The Environmental Protection Agency (EPA) has published its National Energy and Efficiency Initiatives (NECIs) for the fiscal years 2024-2027. The EPA is proposing to include two new enforcement areas: reducing climate change and addressing per- and polyfluoroalkyl substances (PFAS) pollution. Those working in the oil and gas industry, and those involved in refrigeration, should take note. Interested parties have until March 13, 2023 to provide comments to the EPA on the proposed changes.

What are NECIs?

NECIs, formerly known as national compliance initiatives (NCIs), represent EPA’s areas of focus. EPA selects the NECI every four years. When selecting NECIs, EPA considers the following factors:

  • The need to address serious and widespread environmental issues and major violations affecting human health and the environment, especially in overburdened and vulnerable communities;

  • Areas where federal action can help ensure national stability, promote stability, and achieve consensus; and

  • Compliance with the Agency’s Strategic Plan. The EPA stated that it intends to align existing and future NECIs with two goals of the strategic plan: Goal 1: Combat Climate Change and Goal 2: To Take Positive Action to Advance Environmental Justice.

Currently, there are six NECIs in effect for FY 2020–2023:

  1. Creating Clean Air for the Community by Reducing Excessive Emissions of Hazardous Pollutants

  2. Reducing Risks of Hazardous Discharges to Industrial and Chemical Waters

  3. Reducing Noncompliance is Critical to the National Pollution Elimination Program (NPDES)

  4. Reducing Noncompliance with Drinking Water Standards in Public Water Supplies

  5. Reducing Toxic Air Emissions from Hazardous Waste Facilities

  6. Aftermarket Suspension Kits for Cars and Engines

Proposed changes to NECIs for FY 2024–2027

EPA proposes to continue initiatives #1–4 from the list above for FY 2024–2027. In addition, EPA is proposing to remove initiatives #5 and #6 from the list and replace them with two new initiatives: mitigating climate change and addressing PFAS contamination.

Increasing Climate Change Mitigation and Addressing PFAS as New Actions

The climate change mitigation NECI would focus on reducing (i) non-compliance with the American Chemicals and Chemicals Act, which regulates the import, production, use and sale of hydrofluorocarbons; (ii) excess emissions from municipal waste facilities and oil and natural gas production facilities; and (iii) non-compliance with methane regulations. The EPA says that while it has tried to incorporate climate change considerations into existing plans, this NECI will provide new considerations for climate mitigation, rather than climate resilience.

As for dealing with PFAS, EPA wants to continue implementing the 2021-2024 PFAS Strategic Map. PFAS NECI would focus on identifying PFAS exposures that pose a threat to human health and the environment. EPA intends to pursue enforcement against parties responsible for such exposures. The EPA says it will focus enforcement efforts on PFAS manufacturers and government facilities that may be the largest source of PFAS contamination. The EPA also indicated that it is “not willing to pursue agencies where the facts do not support it
[Comprehensive Environmental Response, Compensation, and
Liability Act] accountability.”1

Returning Two Steps to the Core Implementation Program

EPA is proposing to send initiatives #5 (toxic emissions from hazardous waste facilities) and #6 (vehicle defeat devices) back to the original action plan. The EPA says it has made significant progress in reducing pollution from hazardous waste facilities through compliance training and enforcement cases and has resolved the worst cases of the facility through enforcement. This does not mean that activity in these areas will end. When an initiative is removed from the NECI list, it returns to what EPA calls its “primary program” of action. The EPA can be expected to continue to pursue major violations in these areas, but we can expect to see fewer cases going forward.

What about Environmental Justice?

EPA does not recommend independent NECI to promote environmental justice. However, the EPA says it has “fully incorporated environmental justice considerations into every existing and proposed NECI.”2

It Has Requested Public Comments

EPA is asking the public for comments on the following:

  • What current national initiatives should continue in the FY 2024–2027 cycle, as amended or modified, or be returned to the “core” operational program at the end of FY 2023?;

  • Proposed addition of two new NECIs to address PFAS and mitigate climate change;

  • Whether additional new NECIs will be added to address combustible coal pollution and/or to reduce exposure to lead pollution; and

  • Whether there are other areas that EPA did not identify in the proposed rule that should be considered NECIs.

Parties interested in commenting on the proposed NECIs may submit public comments identified by Docket ID No. EPA-HQ-OECA-2022-0981. All comments must be received on or before March 13, 2023. For more information about the public comment process or the effects of the NECIs on your business, please contact Jonathan D. Brightbill (Partner, White Collar, Regulatory Defense & Investigations/Environmental). Cases), Madalyn Brown (Friend, Environment), or your Winston relations attorney.


1. 88 Fed. Reg. 2096 (January 12, 2023).

2. Id. in 2094.

The content of this article is intended to provide general guidance on the subject. Professional advice should be sought regarding your particular circumstances.

POPULAR TOPICS: Environment from the United States


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