New PFAS/PFOS Regulations May Reopen Sites

by Mitchell J. Klein

Environmental practitioners are well aware of the astonishing breadth and scope of the impacts resulting from the investigations into the ubiquitous presence of the so-called “forever chemicals”, including the significant efforts being expended at both the State and Federal level on regulating their use and establishing remedial standards.

But PRPs, landowners, and water utilities are not just faced with tort claims and enforcement actions resulting from newly discovered PFAS/PFOS contamination, they are looking at the very real potential for many of the sites and situations they had thought were resolved long ago becoming reopened, and are now facing additional liability and costs on matters for which they had closed their books and removed their reserves.

While efforts at listing these chemicals as CERCLA hazardous substances or using RCRA to determine their hazardous nature are currently the subject of significant litigation and legislative efforts, there seems no doubt that at some time soon, at least some of the thousands of related compounds will become regulated in some way. And the fallout will not be limited to newly discovered sites.

For decades, many PRPs have resolved CERCLA and RCRA claims (and their State analogues) with the government by entering into Administrative Orders or Judicial Decrees. Once the Respondent has completed its obligations, be it merely the payment of money or the completion of investigative and/or remedial work, that respondent has likely received some sort of notice saying it has resolved the allegations and obligations, and then closed its files.

But the vast majority of those Orders and Decrees contain standard boiler plate language, which state something to the effect that the government reserves its rights to pursue additional claims for any unknown violations, and additional language limiting the scope of the release to only those matters addressed within some defined scope. Together, these types of provisions are usually called “reopeners”.  Because the government did not know about the potential environmental harms from PFAS/PFOS and was unaware of their presence (unless some unusually broad testing was done and reported at the time) and because it was not regulated at the time of the resolution, it is highly likely that the government will begin dusting off some of these old settlements and start declaring that the site has been reopened and demanding that the respondent return to the scene to perform additional testing and, depending on the results, additional remediation. Companies who thought they had finished their obligations at a site long ago are likely in for some very rude awakenings, and the Orders and Decrees will need to be carefully reviewed to determine if the obligations at the site regarding the soon to be regulated PFAS/PFOS compounds are going to require significant and unreserved expenses.