Criminal vs. Civil PFAS Liability
Most PFAS enforcement to date has been civil — regulatory compliance orders, civil penalties, and civil litigation for damages. Criminal prosecution requires proof of knowing or willful violation of environmental laws — a higher standard that is difficult to meet when contamination results from historical activities that were legal at the time. However, as knowledge of PFAS risks has solidified and internal company documents revealing early awareness have emerged through litigation, the factual basis for criminal charges has strengthened.
The Clean Water Act, RCRA (Resource Conservation and Recovery Act), and CERCLA all contain criminal provisions with significant penalties including imprisonment. DOJ’s Environment and Natural Resources Division prosecutes environmental crimes in coordination with EPA’s Criminal Investigation Division.
Precedent Cases and DOJ Priorities
Several criminal prosecutions involving PFAS-adjacent conduct have tested the boundaries of environmental criminal law. Cases involving illegal discharge of AFFF to waterways, knowing falsification of discharge monitoring reports, and obstruction of EPA inspections at PFAS-using facilities have resulted in criminal charges and convictions.
DOJ’s emphasis on individual executive accountability — announced in the 2021 Monaco Memo — increases the risk of personal criminal exposure for corporate officers who approve or permit PFAS violations. The combination of mandatory environmental compliance programs and heightened individual accountability is changing the risk calculus for executives at PFAS-using companies.
Emerging Criminal Exposure Areas
The areas of greatest criminal exposure in PFAS enforcement include: illegal disposal of AFFF at unauthorized sites; knowing concealment of PFAS contamination from regulators; falsification of environmental monitoring reports for PFAS; and obstruction of EPA or state remedial investigation activities.
As PFAS becomes a designated hazardous substance under CERCLA, the criminal provisions of that statute — which include penalties for knowing violation of cleanup orders and obstruction of remediation activities — become directly applicable to PFAS site management. Companies receiving cleanup orders for PFAS sites face criminal exposure if they knowingly violate those orders.