CERCLA Liability and Reopened Superfund Sites: PRP Impact, Settlement Consequences, Insurance Considerations
Course Details
- smart_display Format
Live Online with Live Q&A
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Environmental
- event Date
Tuesday, June 3, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will address the implications of ongoing CERCLA liability for potentially responsible parties (PRPs) given the EPA's 2024 guidance indicating that closed Superfund sites may be reopened (1) to address PFAS contamination and (2) due to reduced screening levels for lead-contaminated soil. The panel will address remedial measures that PRPs may want to take in advance of possible site reopening and discuss methods of mitigating risk including insurance considerations and language in consent decrees.
Mr. Van Osselaer is an insurance coverage and environmental litigator who represents clients in disputes with their insurers, environmental agencies, and other parties. In his insurance coverage practice, Mr. Van Osselaer represents policyholders across all lines of commercial insurance, including environmental liability, professional liability, property, and D&O. In the environmental space, Mr. Van Osselaer’s practice runs the gamut from defending clients in enforcement actions based on alleged water, air, and waste violations, to litigating private causes of action, including under RCRA and CERCLA. In addition to being well versed in more-traditional environmental issues, like groundwater contamination, vapor intrusion, and issues arising from recycling and disposal operations, Mr. Van Osselaer’s repertoire is uniquely augmented by his insurance coverage experience. His double disciplinary approach makes him indispensable in environmental emergencies and disasters where coverage is critical to clean up, paying claims, and restoring operations. He is a frequent speaker and author on subjects pertaining to insurance coverage and environmental law, including matters related to PFAS and other emerging contaminants. Mr. Van Osselaer is Co-Chair of the Environmental & Energy Subcommittee of the ABA Insurance Coverage Litigation Section and a planning committee member for the Texas Bar’s Environmental Superconference.
Ms. Teel advises clients on environmental issues that arise in the litigation, transactional, and regulatory contexts. She has extensive knowledge of state and federal requirements, particularly as they relate to landfills/solid waste, hazardous substances, agriculture, and oil and gas. Ms. Teel has represented clients in environmental negotiations/enforcement actions with federal and state agencies and assisted with litigation of environmental claims in administrative, state, and federal courts, including Superfund and odor nuisance class actions. She regularly analyzes real estate deals and tax credit projects for environmental risks and provides strategies for minimizing those risks. Recent regulatory experience includes a focus on emerging contaminants such as PFAS and dealing with technologically enhanced naturally occurring radioactive materials (TENORM).
In 2024, EPA leadership indicated that the classification of certain PFAS chemicals as hazardous substances under CERCLA could lead to the agency's reopening of closed Superfund sites to address lingering PFAS contamination. Federal RD/RA judicial consent decrees now include reopener provisions that may be invoked to address PFAS contamination. The EPA conducts five-year reviews of consent decrees, potentially leading to additional remediation requirements. This increases the financial obligations for parties to consent decrees if reopeners are invoked due to PFAS regulations.
Additionally, in guidance that lowers recommended screening levels for investigating and cleaning up lead-contaminated soil in residential areas, the EPA stated that the guidance, effective Jan. 17, 2024, "should be considered for all residential lead sites subject to CERCLA [. . .] including those previously addressed and/or deleted from the National Priorities List."
The reopening of closed Superfund sites raises liability concerns for new PRPs who may be identified for those reopened sites and who may have little to no experience dealing with CERCLA liability and for previously identified PRPs who believed their liabilities were resolved. There are also insurance considerations where current policies may have certain environmental exclusions or where payouts have already occurred in prior settlements.
Counsel should understand the implications of reopened Superfund sites on their clients, remedial steps their clients may want to take in advance of any reopening, and possible measures to mitigate the impact through insurance coverage and consent decree terms.
Listen as our expert panel discusses the EPA's authority to reopen closed Superfund sites and under what circumstances it may do so. The panel will address the potential impact of reopening sites on former and new PRPs and offer best practices to mitigate risk.
I. Overview of CERCLA liability and settlement process
II. EPA's authority to reopen closed Superfund sites
A. PFAS hazardous substances designation
B. Reduced lead screening levels
III. Reopener liability
A. Consent decrees and reopener provisions
B. Five-year reviews and additional remediation requirements
C. Impact on PRPs
IV. Strategies
A. Insurance considerations
B. Consent decrees
C. Others
V. Practitioner takeaways
The panel will review these and other important issues:
- Under what circumstances may the EPA reopen closed Superfund sites? What recent developments may prompt reopening sites?
- How may reopened Superfund sites impact former PRPs? New PRPs?
- What remedial measures may PRPs take in advance of possible reopening?
- What insurance considerations should counsel and their clients examine when faced with the possibility of a reopened Superfund site?
- What are best practices for limiting liability and mitigating risk?
Related Courses
CERCLA Liability and Reopened Superfund Sites: PRP Impact, Settlement Consequences, Insurance Considerations
Thursday, April 10, 2025
1:00 p.m. ET./10:00 a.m. PT