By Tiffany-Linn Vincent
PFAS is currently a hot topic in the environmental community, and with the help of a few high-profile corporate lawsuits and the film “Dark Waters,” has gained more widespread publicity. On December 2, 2019, the US House Committee on Energy and Commerce passed the PFAS Action Act of 2019 (H.R. 535), which, if approved by the Senate, would officially designate all PFAS compounds as pollutants under the Environmental Protection Agency’s Clean Air Act and as hazardous substances under the Clean Water Act, and therefore subject to all appropriate inquires during due diligence. What does all of this mean for you, your existing property or investment, and your environmental responsibility? Is it the end of the world if PFAS is found on your property?
If you own or are buying industrial sites, warehouses, or are investing or developing around military bases, you should be aware of this growing issue. The article below provides essential background information on PFAS, and the latest regulatory and technology updates.
What is PFAS?
Per- and polyfluoroalkyl substances (PFAS) are comprised of synthetic organic molecule “chains,” most notably Perfluorooctanoic acid (PFOA) and Perfluorooctanesulfonic acid (PFOS), among others. PFAS are ubiquitous in industrial and post-industrial societies around the world and have been found in air, soil, and water. PFAS is extremely useful for a wide range of manufacturing and industrial applications due to its resistance to heat, water and oil, and inability to biodegrade easily. It has been used in food packaging, household products (Teflon, Scotchgard and other stain repellants, cleaning products, etc.), industrial or production facilities, fire-fighting foams, and other general workplaces. Like other substances that have made life easier, we are now realizing that the disadvantages of PFAS outweigh the benefits. Disadvantages include evidence that certain PFAS can accumulate and persist in the human body and exposure to PFAS can lead to adverse health conditions.
Although PFAS is referred to as an ‘emerging contaminant,’ oversight of its use does have a history. An earlier form of PFAS known as “long-chain PFAS” was removed from use in the U.S. market in the early 2000s. In 2006, the EPA invited eight of the leading companies in the PFAS industry to join a global stewardship program. The intention was to reduce facility emissions by 2010. and work toward the elimination of the chemicals from emissions and products by 2015. These goals were met, and we seem to be on our way toward eliminating PFAS in the United States.
Regulatory Updates and Due Diligence
Ground and surface water contamination, as well as human exposure to PFAS, is currently a large concern throughout the U.S. In May of 2016, the EPA issued a lifetime health advisory of 70 parts per trillion for long-term exposure to PFOA and PFOS in drinking water, and in February of 2019, they published their PFAS Action Plan. The Action Plan outlines essential tools that the EPA is developing to assist states, tribes, and communities in addressing PFAS.
On a state-level, PFAS regulation is still a bit of a moving target—standards have not yet been legally enforced—however regulatory Case Managers are communicating that they are evaluating PFAS and they are requesting PFAS consideration with specific sites. Drinking water sampling is of high focus, but general groundwater investigation sampling is becoming increasingly more common. In states that have adopted Licensed Site Remediation Professional (or similar) programs, such as New Jersey, there is the expectation that PFAS is being considered and addressed, as appropriate. As of April 1, 2019, the NJDEP has proposed maximum contaminant levels of 14 parts per trillion for PFOA and 13 parts per trillion for PFOS.
Other states, like Massachusetts and Michigan, have instituted sampling guidance and advisor committees towards eventual enforceable standards by State regulatory agencies. California’s State Water Resources Control Board has announced plans to order owners and operators of more than a thousand facilities to conduct environmental investigations for PFAS.
As part of a standard transactional due diligence assessment, it might be in your best interest to ask your consultant to conduct research to assess if these ‘emerging contaminants’ may be present and affecting your property. Because of its long-time use in fire-retardant foams and military training exercises, properties near airports, military bases, and other known PFAS manufacturing facilities are particularly vulnerable to historical contamination. Additionally, industrial properties and warehouses may have processed PFAS-containing materials in high volume.
Should you already own a property impacted by PFAS, expect to include this consideration during any future environmental investigations or remediation liability. It’s worth noting that PFAS sampling is a newer technology and, due to its prevalence in many everyday items, it requires special consideration and particular field sampling protocols are necessary. Furthermore, reporting limits are 1,000 times more stringent than average groundwater contaminant reporting limits (parts per trillion versus parts per billion).
If you are looking at investing in or if you already have a property where PFAS contamination is present, there are options available for its remediation. Products like CETCO’s proprietary, NSF-certified FLUORO-SORB® adsorbent material effectively binds the entire spectrum of PFAS. It can be used in place of granular activated carbon (GAC) as a flow-through treatment for groundwater (much like a standard water filtration system), as an in-situ treatment, or even included in a geotextile mat for capping. Because of FLUORO-SORB®’s higher adsorption properties and density it requires fewer change-outs than GAC, resulting in a substantially reduced total cost of ownership with better adsorbent results than standard GAC.
Chemists are currently working on designing additional new non-clogging adsorbents that target and “swallow” PFAS, ion-exchange resins that filter out clean water while binding PFAS molecules to an organic backbone, and on treatment methods that can completely degrade the molecules into manageable pieces that can then be easily eradicated. Many of these methodologies are already being tested in the laboratory and could be implemented within the next decade.
PFAS has been widely used for decades, and we are now reckoning with the resulting consequences, along with increased scientific consensus. Five years ago, what may have seemed like an environmentally clean property may now require PFAS assessment. In the future, previously “cleared” sites may require retroactive cleanup or containment measures. There is never a better time than during your due diligence period to determine if this is something that will require future remediation. Even if you are not currently in a state on the crest of the PFAS wave, it is worth knowing that a national regulatory wave will eventually come.
PFAS is not something to be afraid of, but should be considered and planned for appropriately, like every other potential environmental liability. If you are looking at investing in, or if you already have a property where PFAS contamination is present, know that there are options.
Tiffany-Linn Vincent is a Senior Project Manager with Partner Engineering and Science, Inc.
Paul Bubny serves as Senior Content Director for Connect Commercial Real Estate, a role to which he brings 13-plus years’ experience covering the commercial real estate industry and 30-plus years in business-to-business journalism.
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