Superfund Consent Decrees Are Forever

As one Potentially Responsible Party in Wisconsin recently discovered, Superfund consent decrees are the gift that requires you to keep giving.  In US v. Wauconda Sand & Gravel Co., a PRP which thought it was extinguishing its liability by signing a consent decree in 1994, received a demand from EPA a decade later to perform additional work.  The PRP balked, claiming that it believed it had completed its obligations under the consent decree.  The court, however, reached the opposite conclusion.  According to the court, the consent decree obligated the PRP to perform or pay for additional testing and remediation in the event that there was any exceedance of groundwater standards.  Because the groundwater standard for vinyl chloride had been exceeded in the area of the site, albeit a decade later, the court concluded that the PRP’s obligation to perform or pay for additional groundwater testing and remediation had been triggered.  Parties entering into Superfund consent decrees should take seriously the breadth of the “additional work” provision since courts are likely to.