Several key developments in federal environmental regulation in 2024 were the designation of two PFAS compounds as hazardous substances by the U.S. Environmental Protection Agency (hereinafter EPA) and the establishment of the first legally enforceable drinking water standards for several PFAS compounds, both individually and in mixtures.1 With the new PFAS hazardous substances regulations in place, parties to EPA consent decrees should examine the potential use of generally included reopener provisions that may allow the EPA to require further PFAS testing and remediation at previously closed superfund sites undergoing the agency's five-year review process.
Lee Zeldin was appointed by President Trump to be the EPA Administrator and recently received Senate confirmation. Although some think tanks have recommended policy priorities for the EPA that include revising "groundwater cleanup regulations and policies to reflect the challenges of omnipresent contaminants like PFAS" and revisiting "the designation of PFAS chemicals as 'hazardous substances' under CERCLA", it is far from clear that the second Trump administration will pursue a reversal of the PFAS regulations put in place by the Biden administration in 2024.2 Indeed, Mr. Zeldin, during his service in the U.S. House of Representatives, supported legislation that never became law regulating PFAS in drinking water.3 In addition, President Trump's first administration pursued PFAS regulation to a different degree than the Biden administration yet nevertheless held itself out as "aggressively addressing per- and polyfluoroalkyl substances (PFAS)" as an "active and ongoing priority" of the EPA.4 In accordance with President Trump's January 20, 2025 Executive Order issuing a regulatory freeze, the Trump administration withdrew an EPA rule that was under review and set forth proposed limits on PFAS in wastewater.5 The full extent of the Trump administration's policies on PFAS will become apparent as the new administration continues to take shape.
This legal update provides insight into EPA's enforcement priorities as indicated in an April 2024 EPA PFAS Enforcement Discretion and Settlement Policy (hereinafter "EPA PFAS Enforcement Policy") and explains the reopener risk that parties to judicial consent decrees at CERCLA sites may face if EPA aggressively pursues PFAS enforcement through the use of reopener provisions. While President Trump's administration may revise the April 2024 PFAS Enforcement Policy, it is unlikely that the basic principles that underlie it, which include focusing on entities that have manufactured and released PFAS, will significantly change.
Designation of PFAS Substances as Hazardous Substances and EPA's Enforcement Policy
Effective July 8, 2024, EPA expanded the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) list of hazardous substances to include two per- and polyfluoroalkyl substances, which are collectively referred to herein as PFAS.6 In the relevant final rule, the EPA acknowledged that "[p]otential liability for response costs for addressing PFOA and PFOS releases or threatened releases is an indirect effect . . ." of the rule.7 In addition, in April 2024, the EPA announced the final National Primary Drinking Water Regulation addressing specified PFAS.8 There is currently pending litigation in the United States Court of Appeals for the District of Columbia Circuit seeking review of the EPA PFAS final rule and the EPA National Primary Drinking Water Regulation.9
PFAS, known colloquially as "forever chemicals," have gained significant attention in recent years due to their environmental persistence. The molecules that make up the PFAS group of chemicals are extremely stable and resist naturally occurring degradation in the environment. Further, they are small enough to pass through most environmental and biological membranes. Since PFAS are found in many cleaning products, non-stick cookware, cosmetics and other consumer goods, PFAS chemicals have accumulated within waste sites.10
The designation of PFAS as a hazardous substance allows the EPA to use the full strength of its authority under CERCLA to address PFAS contamination. CERCLA provides the EPA with authority to compel investigations and cleanups of sites contaminated by certain hazardous substances. CERCLA also allows potentially responsible parties (PRPs) to negotiate with the EPA to enter into either administrative settlements or judicial consent decree settlements. Through consent decrees, landowners, generators, and transporters may be released from liability in exchange for financial contributions.
EPA has broad enforcement and settlement discretion under CERCLA. Pursuant to its PFAS Enforcement Policy, the EPA intends to ". . . focus on holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties."11 Those parties are referred to as major PRPs.12 EPA also intends to pursue federal agencies and federal facilities that are responsible for PFAS contamination.13 EPA indicated that, in settlements with such parties, it will seek to require the settling parties to waive their rights to sue non-settling parties that satisfy certain equitable requirements.14
EPA also does not currently intend to pursue, based on equitable factors, the following PRPs: community water systems and POTWs (publicly owned treatment works), municipal separate storm sewer systems (MS4s), publicly owned or operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms that apply biosolids to lands.15 EPA also stated that it will exercise its discretion and consider fairness and other equitable factors when deciding whether to pursue PFAS actions based on a number of criteria, including whether the entity performs a public service role in activities that include, for example, the handling of municipal solid waste and treating or managing stormwater or wastewater.16 An aspect of EPA action to monitor is how a "public service role" is defined when the EPA applies its enforcement discretion with regard to municipal solid waste treatment.
Reopener Liability Under CERCLA as a Result of PFAS Regulations
It is notable that the EPA's settlement authority, exercised through the entry of consent decrees, features prominently in the EPA PFAS Enforcement Policy. Importantly, federal RD/RA judicial consent decrees in accordance with Section 122(f)(6) of CERCLA include "reopener provisions."17 These provisions allow the EPA, under specific circumstances, to retroactively reopen and renegotiate a consent decree to supplement a previous settlement with additional obligations. It is anticipated that such reopener provisions may be invoked, at the EPA's discretion, in the implementation of the new PFAS regulations.
EPA provides a Model RD/RA Judicial Consent Decree as a template for negotiation, and the model consent decree includes the following reopener provision:
Notwithstanding any other provision of this Decree, the United States reserves, and this Decree is without prejudice to, the right to issue an administrative order or to institute proceedings in this action or in a new action seeking to compel Settling Defendants . . . to perform further response action to the Site, to pay the United States for additional costs of response, or any combination thereof. The United States may bring a claim under this reservation only if, at any time, conditions at the Site previously unknown to EPA are discovered, or information previously unknown to EPA is received, and EPA determines, based in whole or in part on these previously unknown conditions or information, that the Remedial Action is not protective of public health or welfare or the environment.18
Under Section 122(g)(1)(A) of CERCLA, the EPA may enter into settlement agreements with certain de minimis parties for which more expeditious settlements may be reached because only a minor portion of the response costs at the facility are involved and certain specified conditions are met.19 Covenants not to sue may be included in de minimis settlements, and the EPA will typically include reopeners in such settlements,20 examples of which can be found in the model de minimis consent decree. An excerpt of one reopener provision in the model de minimis consent decree is as follows:
Notwithstanding any other provision in this Consent Decree, the United States reserves, and this Consent Decree is without prejudice to, the right to institute proceedings against any individual Settling Defendant in this action or in a new action or to issue an administrative order to any individual Settling Defendant seeking to compel that Settling Defendant . . . to perform response actions relating to the Site, and/or to reimburse the United States for additional costs of response, if: information is discovered that indicates that such Settling Defendant . . . contributed hazardous substances to the Site in such greater amount or of such greater toxic or other hazardous effects that such Settling Defendant . . . no longer qualifies as a de minimis party at the Site because [insert volume and toxicity criteria from Section I, Paragraph C.3, e.g.: Settling Defendant . . . . contributed greater than ___% of the hazardous substances at the Site, or contributed hazardous substances that are significantly more toxic or are of significantly greater hazardous effect than other hazardous substances at the Site].21
While this reopener is differently configured than the reopener typically included in the Model RD/RA Judicial Consent Decree, it could be triggered by a de minimis party's PFAS contributions that were not taken into consideration at the time the party qualified as a de minimis party. In addition to this reopener, de minimis consent decrees must include a reopener that "claims for natural resource damages will be 'expressly reserved unless the Federal natural resource trustee has agreed in writing' to the settlement"22 and may also contain a reopener related to a situation in which the total cost incurred or to be incurred at a site exceeds a certain threshold.23
Many federal consent decrees are reviewed by the EPA on a five-year basis, providing an opportunity for the EPA to realize the need to reopen a consent decree and require additional remediation.24 Should a consent decree be reopened, the PRP may ultimately have additional liability and increased financial obligations that would be imposed long after the initial settlement. In summary, reopeners are used as tools for the EPA to confront cleanup demands that may arise from unknown site conditions, ineffective remediation methods, or future scientific advancements and therefore may be used by the EPA with regard to the designation of PFAS as a hazardous substance.
PFAS and the Risk of Reopener Liability
Considering the ubiquity of PFAS in many different types of products and industrial usages, the designation of certain PFAS as hazardous substances raises the possibility of reopening existing consent decrees in order to address PFAS contamination. As enforcement of the EPA PFAS regulation expands, the EPA's use of reopener provisions may begin to be observed more frequently in enforcement trends.25 In 2025, the EPA is set to conduct approximately 100 five-year reviews, providing ample opportunity for trends in reopener liability to become apparent.26
As the 2024 PFAS regulations combined with the possibility of reopener liability and five-year reviews demonstrate, consent decrees with the federal government settle important issues yet most consent decrees remain open to revision for further remediation requirements when a hazardous substance present at a previously closed superfund site is officially designed through EPA rulemaking.
Indeed, the reopener issue is relevant to sites even where the site has not been "closed." Many sites are in a groundwater monitoring phase and thus still active. The PFAS issue would present the same issues to the PRPs at those sites.
Buchanan's environmental and energy attorneys are prepared to proactively assist clients in evaluating consent decrees to ensure that they understand the reopener risk associated with the EPA's potential enforcement of the 2024 PFAS regulations.
Footnotes
1. The EPA also took other actions on PFAS that are summarized on the following website: Key EPA Actions to Address PFAS, https://www.epa.gov/pfas/key-epa-actions-address-pfas (last accessed Jan. 16, 2025).
2. Mandy M. Gunasekara, Environmental Protection Agency, in The Heritage Foundation, Mandate for Leadership: the Conservative Promise – Project 2025, 431 (Paul Dans and Seven Groves, eds. 2023).
3. Bobby Magill, Trump Era Pick Seen Supporting PFAS Limits, Revising Water Rules, Bloomberg Law News, Nov. 13, 2024.
4. U.S. Env't Prot. Agency, Trump EPA Continues to Aggressively Address PFAS on the Federal, State, and Local Level (July 28, 2020), https://www.epa.gov/newsreleases/trump-epa-continues-aggressively-address-pfas-federal-state-and-local-level.
5. See Ass'n of State Drinking Water Adm'r, OMB Withdraws EPA's PFAS Effluent Limitation Guidelines and Standards Proposed Rule, https://www.asdwa.org/2025/01/24/omb-withdraws-epas-pfas-effluent-limitation-guidelines-and-standards-proposed-rule/ (last accessed Jan. 26, 2025); Executive Order on Regulatory Freeze Pending Review of President Donald J. Trump (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/regulatory-freeze-pending-review/ (last accessed Jan. 26, 2025).
6. Hazardous Substances And Reportable Quantities, 40 C.F.R. § 302.4 (2024). The substances designated by this rule include perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). See Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 89 Fed. Reg. 39,124 (EPA May 8, 2024).
7. See Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 89 Fed. Reg. 39,124, 39,128 (EPA May 8, 2024).
8. See 40 C.F.R. §§ 141, 142. See also: PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. 32,532 (EPA April 26, 2024); PFAS National Primary Drinking Water Regulation, Correction, 89 Fed. Reg. 49,101 (EPA June 11, 2024).
9. Chamber of Com. of the U.S. et. al., v. EPA et. al., No. 24-1193 consolidated with Nos. 24-1261, 24-1266-24-1271, and 24-1272 (D.C. Cir.) (seeking review and challenging the EPA's final rule designating PFAS as a hazardous substance); American Water Works et. al. v. EPA et. al., No. 24-1188 consolidated with Nos. 24-1191 and 24-1192 (D.C. Cir) (seeking review and challenging the EPA's final rule entitled "PFAS National Primary Drinking Water Regulation").
10. U.S. Env't Prot. Agency, Our Current Understanding of the Human Health and Environmental Risks of PFAS, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas.
11. U.S. Env't Prot. Agency, PFAS Enforcement and Discretion and Settlement Policy under (CERCLA), 2-3 (April 19, 2024), https://www.epa.gov/enforcement/pfas-enforcement-discretion-and-settlement-policy-under-cercla.
12. Id. at 3.
13. Id.
14. Id.
15. Id. at 6-8.
16. Id. at 8. The full list of factors considered for enforcement discretion is as follows: "[w]hether the entity is a state, local, or Tribal government, or works on behalf of or conducts a service that would otherwise be performed by a state, local, or Tribal government", whether the entity performs specified public service roles, "[w]hether the entity has manufactured PFAS or used PFAS as part of an industrial process", and "[w]hether, and to what degree, the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS."
17. See 42 U.S.C. § 9622(f)(6)(a) (providing "[e]xcept for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned.");
18. See U.S. Env't Prot. Agency: Model Remedial Design/Remedial Action Consent Decree, 508 Compliant Version, July 2024 at ¶ 71(a), https://cfpub.epa.gov/compliance/models/view.cfm?model_ID=81.
19. See 42 U.S.C. § 9622(g)(1)(A)-(B) (indicating that de minimis settlements can be reached if "(A) Both of the following are minimal in comparison to other hazardous substances at the facility: (i) The amount of the hazardous substances contributed by that party to the facility," and "(ii) The toxic or other hazardous effects of the substances contributed by that party to the facility"or if "(B) The potentially responsible party - (i) is the owner of the real property on or in which the facility is located; (ii) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and (iii) did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission." In addition, "[t]his subparagraph (B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.")
20. Peter L. Gray, The Superfund Manual: A Practitioner's Guide To CERCLA Litigation 182 (American Bar Association 2016).
21. See U.S. Environmental Protection Agency: Model Consent Decree Section 122(g)(4) de minimis contributor consent decree, March 2023 at § IX, ¶ 16(a).
22. Gray, supra note 20 at 182.
23. See U.S. Environmental Protection Agency: Model Consent Decree Section 122(g)(4) de minimis contributor consent decree, March 2023 at § IX, ¶ 16(b).
24. See 42 U.S.C. § 9621(c) (providing that "[i]f the President selects a remedial action that results in any hazardous substances, pollutants, or contaminants remaining at the site, the President shall review such remedial action no less often than each 5 years after the initiation of such remedial action to assure that human health and the environment are being protected by the remedial action being implemented."); see also 40 C.F.R. § 300.430(f)(4)(2) (indicating that "[i]f a remedial action is selected that results in hazardous substances, pollutants, or contaminants remaining at the site above levels that allow for unlimited use and unrestricted exposure, the lead agency shall review such action no less often than every five years after initiation of the selected remedial action.")
25. Although this analysis focused on the federal PFAS regulations, states have diverse PFAS regulations, which could potentially result in reopeners of consent decrees or other settlement agreements on the state level.
26. Jeffrey Talbert, Are Superfund Sites Ever Really Closed?, N.Y. L.J., Oct. 30, 2024.
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