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Do PFAS and PFOA Change the World of Due Diligence?
By Nick Albergo, P.E., DEE, D. WRE, F. ASCE, F. EWRI
Nick Albergo is a Senior Advisor with a GHD and a faculty member in the Department of Civil and Environmental Engineering at the University of South Florida. He was one of several authors of the first ASTM E1527 Standard on Due Diligence in 1993, the former ASTM E50.02 Subcommittee Vice Chair on Real Estate and Management, and a contributor to every revision of the Standard since its inception.
Per- and poly-fluoroalkyl substances (PFAS) are a group of highly inert and heat-resistant manufactured chemicals known for their water and grease-resistant properties. PFAS have been widely used in the food packaging and manufacturing industries since the 1940s, including non-stick cookware, waterproofing and firefighting foam.
Recent evidence has led to the U.S. Environmental Protection Agency (EPA) proposing the listing of nine PFAs, along with their salts and their structural isomers, as hazardous constituents subject to the Resource Conservation and Recovery Act (RCRA). This list includes perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), which the EPA has now designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).1
DOES THIS CHANGE HOW A PHASE I ENVIRONMENTAL SITE ASSESSMENT IS PERFORMED?
The answer is no.
In summary, a recognized environmental condition occurs when there is a CERCLA release (or likely release) of any of the 800+ hazardous substances or petroleum products to the environment on the subject property. Since 1993, when the EPA issued guidance on the use of authority under section 104(a), the agency has taken the position that the phrase “release into the environment” (CERCLA §101(22)) refers to the location of the release itself and does not address the location of the hazard (i.e., contamination) that the release poses.2
Compliance with the ASTM International Standard Practice means that PFOA and PFOS should only be considered in those instances wherein a source has been identified on the subject property or adjoining properties or comment/opinion is requested by the person requesting the report. This could include, for example, a manufacturing facility with evidence of these compounds or a current or former area where use of aqueous film-forming foam (AFFF) may have been applied to address flammable liquid.
Still, the mere presence of such facilities (i.e., the source of PFOS/PFOA) is not enough. Rather, there must be compelling lines of evidence of a release from the source to the subject property. This applies to RCRA and CERCLA.
The EPA’s April 19 PFAS Enforcement Discretion and Settlement Policy Under CERCLA memorandum makes clear that the agency will focus on holding entities responsible that “significantly contributed to the release of PFAS into the environment.” These include parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities and other industrial parties (i.e., source locations) rather than commercial parcels that have received PFOS/PFOA through diffuse means such as atmospheric deposition.
The federal government and most states do not have maximum contaminant levels (MCLs) other than that for community drinking water systems (4 parts per trillion), and that’s for only six PFAS compounds of the more than 6 million unique compounds in this group. Otherwise, at this point, there is only cleanup guidance – at least in Florida. And again, the April 19 EPA memo states that the EPA does not intend to pursue entities where “equitable factors do not support seeking response actions or costs under CERCLA.”
If they are not seeking costs here, they are certainly not seeking costs from a commercial property in Howey-in-the-Hills with no defined source.
Currently, efforts are directing that if EPA does not finalize its standards for PFAS in drinking water, groundwater and soil by Jan. 1, 2025, the Florida Department of Environmental Protection (FDEP) must adopt statewide cleanup target levels (CTLs) using the risk-based corrective action criteria in existing law.3
To aid in the assessment and remediation of PFAS contamination in Florida, FDEP has derived provisional groundwater CTLs. Persons responsible for site rehabilitation also have the option to propose alternative CTLs for PFOA and/or PFOS. Currently, the provisional CTLs for groundwater is 70 ng/L (ppt) for total PFOA and PFOS. For soil, the CTLs are 1.3 mg/kg (residential) and 25 mg/kg (commercial/industrial).
HOW WILL THE FDEP LIKELY REGULATE DIFFUSE ANTHROPOGENIC POLLUTION IN THE FORM OF PFOS/PFOA?
The implications of third-party liability – and liability for cleanup – have caused consternation among responsible parties and their legislative representatives in Florida, even more so since there are currently no extant technologies that will remediate a PFAS source or plume to the FDEP’s CTL if it were to become law.
Current remedial responses consist of filtering PFAS from groundwater prior to human consumption (ex-situ) or the installation of filtering technologies designed to hinder the advancement of a PFAS plume (in-situ). Still, no chemical or biological technology is currently available in situ that will break down these compounds into their elemental components.
Consider the 2024 regular legislative session. Bills CS/ SB 1692 (Brodeur) and HB 1665 (Gossett-Seidman) were submitted to establish a PFAS and 1,4-dioxane pretreatment initiative within the FDEP for the purpose of coordinating wastewater facility industrial pretreatment programs. These bills would require wastewater facilities with an industrial pretreatment program to complete and provide to FDEP with just an inventory of industrial users to identify probable sources of PFAS or dioxane by July 2025.
These bills failed, which signals that establishing PFAS Law in any form is several years away as we wrestle with the ramifications. Even once such a law is established, it remains uncertain whether commercial properties with no history of a PFOS/PFOA source (or migration from a source) will be compelled to clean up such contaminants.
WHERE DOES THAT LEAVE PARTIES CONCERNED ABOUT PFOS/PFOA?
Following a Phase I site assessment and should a party seek additional assessment, such efforts would be based on a conceptual model or representation of hypothesized current site conditions, which focus on the likely distribution of target analytes that might have resulted from a known or likely source. Unless there is some compelling reason for the investigation (i.e., a nearby source), there would be no need to seek out PFOS/PFOA.
Considering benzo(a)pyrenes (BaPs) and benzo(a) pyrene-equivalents (BaP eqs), it is clear that the FDEP’s appetite and extent to which they are willing to seek enforcement have limits. It is not unusual to encounter BaP, a polycyclic aromatic hydrocarbon (PAH) and hazardous substance on many commercial properties. After all, it has both petrogenic (relating to the origin or formation of rocks) and pyrogenic (relating to byproducts of combustion and predominantly emitted to the atmosphere by burning fossil fuels) origins.
Skilled professionals can distinguish the difference through the analysis of the distribution of PAHs and the parent versus the alkylated PAH distributions. When such analysis confirms a pyrogenic release not attributed to the discharge of petroleum products, the FDEP has been satisfied issuing a Site Rehabilitation Completion Order releasing the Party (or parties) from any further obligation to conduct site rehabilitation at the facility.
In the interim and in instances where comprehensive site assessment activities have not occurred but where there is no obvious indication of a source or release to the subject property, parties to a real estate transaction may consider obtaining a comfort letter from the FDEP. The EPA maintains a “comfort/status letter policy” that provides recommendations and model letters for EPA Regions to use when responding to parties interested in reusing and/or redeveloping contaminated, potentially contaminated, and formerly contaminated property.4
www.govinfo.gov/content/pkg/FR-2022-09-06/pdf/2022-18657.pdf
Memorandum from Henry L. Longest, II, OSWER Directive 9360.3-12 (Aug. 12)., 1993
376.91 - Statewide cleanup of perfluoroalkyl and polyfluoroalkyl substances.
Superfund Memorandum of Agreement Between the Florida Department of Environmental Protection and the U.S. Environmental Protection Agency, Region 4, December 2, 1999
