Navigating PFAS “Reopening” Responsibilities | Maron Marvel Bradley Anderson & Tardy LLC
There has been no shortage of articles and lectures on the coming wave of PFAS litigation in recent years, and for good reason. The scrutiny and tightening of regulations by the USEPA, the ever-increasing AFFF MDL, and the likely listing of PFOA and PFOS as “hazardous substances” make discussion warranted. Among all the explanations of what PFAS are and the risks of litigation, one issue that certainly needs to be considered is the implications of new CERCLA responsibilities and “reopening” responsibilities once PFOA and PFOS are designated as hazardous substances.
When CERCLA was passed in 1980, it did not originally address the purpose of regulations for cleaning up contaminated sites. Some early settlements provided complete release from CERCLA’s future liability, but that changed within a few years. In the 1986 Amendments to CERCLA, Section 122(f)(6), 42 USC § 9622(f)(6)(1) permanently changed to require “re-openings” in all circumstances, except a few.
Because of these “re-opening” provisions, parties who have settled CERCLA claims with the EPA have had to live with the risk that new claims may be asserted to meet new cleanup demands resulting from unknown site conditions or regulatory changes. Reopenings can be triggered in many ways, including new chemical testing and detection methods, new risk assessment standards, newly discovered waste, natural disasters, and perhaps the chemicals of greatest concern. important, new and emerging, such as PFAS.
Any of these changes may lead the EPA to consider triggering the “reopening” provisions of a consent decree, and with PFOA and PFOS on track to be listed as CERCLA “hazardous substances” in As 2023 progresses, reopenings based on the presence of these substances seem increasingly inevitable. In cases where reopening liability is triggered at a site, there are many steps private parties and insurers can take to protect their interests and meet reopening liability requirements, such as:
- Review the consent decree and reopening language: Although required after the 1986 CERLCA reviews, the reopening language is not the same in all CERCLA settlement documents. In recent years, the EPA has required parties to the agreement to agree to standard reopening language in model administrative orders and consent decrees, but historically there has been more discretion in some cases. For example, in the 1980s and 1990s, there was a little more leeway to negotiate reopening clauses that were more limited in scope. This leaves room for arguments to limit a party’s potential liability even when the EPA alleges a reopening has been triggered.
- Assess a “severability” defense with a lawyer: Among the important findings in Burlington Northern and Santa Fe Railway v. United States, 556 US 599 (2009) included the finding that joint and several liability for conditions at an NPL site is not automatic. For reopeners, this means that a party can argue that the substances and conditions that give rise to a reopened liability claim are attributable to others. For example, if the detection of certain PFAS, e.g. PFOA, is the only reason for a remedial action/feasibility study (and costs associated with IR/FS), then a party that does not whoever did not supply substances to APFO has the opportunity to prove his “innocence”, leaving others to bear the risk of further liability from CERCLA. Therefore, knowing which substances or materials are brought to a site by a party takes on increased importance and should be determined as soon as the possibility of a reopening for PFAS, or any other substance for that matter, is considered.
- Re-engage existing parties to the agreement: The parties and attorneys involved in the original settlement at a contaminated site may have changed over time. This is especially true for sites where the consent decree was made in the 1980s and 1990s. Those that are still viable and active can use their historical knowledge to work together, forming an organized and efficient team to handle liability claims. reopened. For others, investigating corporate name changes, mergers, transfers of liability by other means, and even the bankruptcy status of prior contracting parties becomes a critical part of allocating liability among liable parties.
- Take the time to review bankruptcy press releases: Invariably, over time, some of the parties to a CERCLA site’s settlement will have filed for bankruptcy. For parties to the settlement who are found to be bankrupt, the terms of any bankruptcy discharge order must be assessed. The discharge of environmental responsibilities, which is often accomplished through the bankruptcy process, cannot be taken for granted. It is important to review discharge orders to determine if liability for reopening CERCLA has been discharged.
- Preservation of insurance coverage: Finally, if a responsible party has not exhausted insurance coverage at a particular site for the event, timely notification to the carrier is an essential step in securing coverage that can help fund the CERCLA liability of the part. It is also possible that a new CERCLA claim and special notice letter from the USEPA triggered by a reopening event will, in many cases, trigger new coverage. Therefore, old and new policies should be reviewed for potential coverage.
The widespread use of PFAS over several decades, along with the growing likelihood that PFOA and PFOS will be listed as CERCLA “hazardous substances”, it is very likely that a series of reopenings to investigate and remediate these substances is almost the. Indeed, at some sites, the USEPA is already requesting that PFAS be investigated as part of ongoing investigations. Knowing that reopenings for PFOA and PFOS remediation are likely to happen, knowing what action to take when a reopening notice arrives will be critical and can lead to cost saving measures for responsible parties, as Costly remediation plans need to be put in place.