Perhaps unsurprising to those entrenched in PFAS issues, the EPA issued a memorandum today in which it clearly delineates PFAS EPA enforcement as a priority of the agency for the remainder of 2023 and into 2024. While the last couple of years have seen unprecedented regulatory and legislative initiatives related to PFAS, enforcement by the federal EPA has thus far been relatively limited with respect to PFAS to Toxic Substances Control Act and Clean Water Act pursuits against a select few companies. This should not be a surprise, as the federal Safe Drinking Water Act, CERCLA, and RCRA regulations (among others) related to PFAS are all in proposal stages. Nevertheless, today’s memorandum by the EPA clearly shows that the EPA intends to use its broadest possible power to bring increasing PFAS EPA enforcement actions against companies. It should be noted that such enforcement actions likely will include both PFAS manufacturers and companies that merely used or discharged (knowingly or unknowingly) PFAS into the environment.

The EPA noted in its memorandum that addressing PFAS issues is a “significant priority for EPA.” EPA emphasized in particular its goal of finalizing a rule to designate PFOA and PFOS as “hazardous substances” under CERCLA, which would then lead to EPA “…focus[ing] 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.” EPA’s memo does note, in line with its public comments, that it does not intend to “pursue entities where equitable factors do not support [Superfund] responsibility, such as farmers, water utilities, airports, or local fire departments, much as OECA exercises [Superfund] enforcement discretion in other areas.” This final statement is all the more reason for downstream users and dischargers of PFAS to understand their true PFAS risk picture as soon as possible, before true PFAS EPA enforcement action begins.