The Environmental Protection Agency (EPA) is proposing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances. The proposed rule published in the Federal Register designates two per- and polyfluoroalkyl substances (collectively, PFAS) constituents as CERCLA Hazardous Substances. While this is a small subset of PFAS constituents, PFOA and PFOS are reportedly the most commonly used and likely to be detectable. Additional PFAS compounds are certainly on the horizon for consideration by EPA and, in fact, an Advance Notice of Proposed Rulemaking was issued by EPA in April of 2023 to seek input for seven additional compounds for hazardous substance designation.
What Could This Mean For Property Transactions and Real Estate Development?
When the CERCLA hazardous substance rule becomes final (anticipated in 2023 or 2024), it will be mandatory to consider these PFAS constituents when performing Phase I Environmental Site Assessments (ESAs) to identify Recognized Environmental Conditions (RECs) in connection with a property. Because of the ubiquitous use of PFAS, often called “forever chemicals,” in residential, commercial, and industrial products, some Environmental Professionals are concerned that PFAS-related RECs will be commonplace.
In their recent paper, “How Will EPA’S Proposed CERCLA Hazardous Substance Designation of PFOA and PFOS Impact the Environmental Due Diligence Practice?” Jeff Marshall, PE, and Mike Miller, CHMM, discuss the anticipated impacts of the PFAS rule on environmental due diligence. Depending on the former uses, the number of RECs, and ESA results, some sites are more likely to feel the impact on the potential value of a property.
As our PFAS knowledge continues to evolve, so will applying this knowledge to the environmental due diligence practice and, ultimately, real estate conditions. Read the technical paper to understand the terminology and types of properties more likely at risk.
Jeffrey D. Marshall, PE – Vice-President. Mr. Marshall is a Vice President and the practice leader for the Environmental Services Practice for SCS offices in the mid-Atlantic region. He is also the SCS National Expert for Innovative Technologies and Emerging Contaminants. His diversified background is in project engineering and management, with an emphasis on the environmental chemistry and human health aspects of hazardous materials/waste management, site investigations, waste treatment, risk-based remediation and redevelopment, and environmental compliance/permitting issues. He has over 40 years of environmental experience and directs and manages environmental due diligence projects in the mid-Atlantic. He is a chemical engineer, Professional Engineer (VA, MD, WV, NC, and SC) and meets the credentials of an Environmental Professional.
Michael J. Miller, CHMM – Vice President. Mr. Miller is a Vice President and the practice leader for the Environmental Services Practice for SCS offices in the Central region. He also serves as an SCS National Expert for Environmental Due Diligence. He supports firm operations throughout the United States related to Phase I and II Environmental Site Assessments and the completion of large portfolios and complex site assessments. A Certified Hazardous Materials Manager (CHMM) since 2009, Mike has more than 28 years of experience in environmental management and consulting with an extensive background in RCRA-related matters and industrial compliance, planning, and permitting.
Additional Real Estate Resources:
Environmental justice is integrated into State and Federal environmental agency policy-making, thus impacting inspections and enforcement across the nation. While specifics are evolving quickly in each state, staying abreast of these basic requirements for the key environmental permits and plans listed here is best, especially if you have multiple facilities in multiple states.
We recommend this quick read to run through a checklist to decide if your facility is ready or may need an internal audit. For this article, we’re using Illinois and standard Federal requirements.
Being well-prepared for an inspection saves time and expense but will also support your company’s relationship with the regulatory agency and promote better outcomes and reduced risk of enforcement actions.
Deficiencies noted during an inspection can be a catalyst for additional inspections among non-EJ-located facilities.
Manufacturers in environmental justice areas denoted within each state can prepare for regulatory review and inspection by conducting internal or external audits of key environmental permits and plans to evaluate compliance with state and local regulations.
Additional Information:
The Maryland Department of the Environment (MDE) reminded all stakeholders that enforcing the state’s new food diversion regulations begins April 1, 2023. The law governing these regulations, entitled “Solid Waste Management – Organics Recycling and Waste Diversion – Food Waste,” was enacted on January 1, 2023.
Diversion reduces waste at final disposal sites, such as landfills and incinerators. Food residuals include edible and nonedible materials derived from pre- and post-consumer vegetables, fruits, grains, dairy products, and meats.
A facility must implement food diversion techniques if it generates at least two tons of food residuals per week. Affected facilities include businesses, public and private schools, supermarkets, and government-run cafeterias.
SCS Engineers advises facility owners and operators to review MDE’S Determination of Applicability to determine if they are subject to enforcement. MDE strongly recommends that facility owners and operators submit a Waiver Application Form if they believe they are not subject to enforcement or cannot comply with the regulations.
Maryland generates an estimated 1.86 million tons of compostable materials and 927,926 tons of food waste annually. Although a major waste component, only a small amount is reused or recycled. What remains ends up being disposed of in landfills or incinerated. Diverting edible foods can help address the 1 in 8 (12.5%) food-insecure Marylanders. Preventing food scrap and organics disposal using methods such as composting or donating to those in need conserves energy and resources, and reduces greenhouse gas emissions.
SCS Engineers periodically prepare SCS Technical Bulletins – short, clear summaries of rules, plans, and standards. In 2021, ASTM International published an updated consensus guidance document for evaluating environmental conditions at properties involved in commercial real estate transactions.
This SCS Technical Bulletin for the revised E1527-21, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process addresses definitions and terminology, clarifies industry practice for the historical records review of the subject and adjoining properties, and provides for updates and additions to appendices, report outlines, and other collateral.
Our updated edition now includes the revised guidance speaks to the business risk associated with emerging contaminants, such as Per- and polyfluoroalkyl substances (PFAS).
Read, share, download the A New Standard Practice for Phase I Environmental Site Assessments Tech Bulletin here.
For more information about Environmental Due Diligence, please visit our website.
USEPA recently issued Effluent Guidelines Program Plan 15, which includes a focus on PFAS discharges from multiple categories. In conjunction with Plan 15, EPA has determined that revisions to the effluent guidelines and standards for the Landfills Category (40 CFR part 445) are warranted. See Section 6.3.3 of the Plan. Here are a few excerpts regarding landfill leachate:
Landfill leachate and wastewater treatment planning and resource information are available here.
On December 24, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published the renewed NPDES General Permit for Discharges of Stormwater Associated with Industrial Activity (PAG-03). This permit covers stormwater discharges from industrial facilities such as manufacturing facilities, landfills, scrap yards, and bus terminals.
The new permit term will cover operations from March 24, 2023 (effective date) to March 23, 2028 (expiration date). If PADEP receives an NOI by March 23, 2023, an existing PAG-03 permittee can continue to discharge under the reissued PAG-03. The application forms and instructions are available from the PADEP eLibrary.
Beginning in 2024, the due date of the Annual Report and NOI fee annual installment payment will be by March 23 each year. For existing permittees, the due date for the NOI fee installment in 2023 and the annual report covering 2022 will be May 1, 2023.
Analytical requirements for monitoring stormwater discharges are established in an appendix to the General Permit for each industrial sector. A monitoring requirement for Total Nitrogen and Total Phosphorous was added to each Appendix. Other changes made are to monitoring and Benchmark Value parameters for individual sectors. Target Quantitation Limits (TQLs) are established for analytical parameters, and permittees must use labs that can meet the TQLs to comply.
The new permit increases response levels for continual exceedances of Benchmark Values, concentrations of pollutants that serve as a threshold for evaluating whether site Best Management Practices effectively control stormwater pollution. Two or more consecutive monitoring period exceedances of Benchmark Values trigger the requirement to develop and submit a corrective action plan, implement additional controls, or apply for an individual permit if notified by PADEP.
Monitoring under the renewed permit commences with the July 1 – December 31, 2023 monitoring period. Until July 1, 2023, permittees should continue monitoring for parameters in their existing General Permit.
These are not the only changes made to the General Permit. Please contact for updates in other states or commonwealths and Denise Wessels at (610) 382-3050 if you need help preparing the NOI to reapply for the permit or to maintain compliance with permit terms in Pennsylvania.
From the USEPA to headlines in the media, coverage of PFAS moving from wastewater to drinking water is a major concern. Furthermore, there are growing concerns about how much PFAS is in by-products that are recycled or reused from waste products. Topping that list is fertilizer.
Retail fertilizer products made from at least 50% biosolids commonly sold to the general public and used in farming contain PFAS, which could get into crops and stock, eating those crops. The Environmental Protection departments in some states are beginning to consider or pass state-level specific regulations on the content of PFAS in biosolids.
The December 2022 USEPA memo to states (pages 4-5) made these recommendations on biosolids as follows:
Tony Kollasch, an environmental consultant specializing in remediation, tells us to use precaution and learn more about what plans are underway in your state. In his Wisconsin Agri-Business article, BIOSOLIDS and PFAS – NUTRIENTS with a SIDE OF CONCERN, he walks readers through the most recent reports and studies using plain language.
The issues and questions that come up are solvable. There are treatments for removing PFAS, and as an environmental engineering and consulting firm, we solve these types of challenges. We encourage the safe use of by-products and urge you to learn more about specific products by joining associations where you can educate yourself – it’s good for business and for understanding pending regulations that may impact your operations. It will help you run your business sustainably by making sound decisions based on human health, the environment, and economic demand.
Additional Resources:
On January 11, 2023, the Illinois Environmental Protection Agency posted the General NPDES Permit for Industrial Storm Water Discharges (NPDES Permit No. ILR00) for public review and comment.
Please note that numerous modifications and additions are proposed for Attachment 1 of the NPDES Permit No. ILR00. The Attachment was just made public by the Illinois Environmental Protection Agency. We are preparing a summary of the changes associated with each subsector.
Modifications and added parts or sections are summarized below:
All comments on the draft permit and requests for a public hearing must be received by the IEPA no later than February 11, 2023.
Our team of Storm Water professionals in Illinois includes Spencer LaBelle and Scott Knoepke, who are ready to answer your NPDES Permit questions and discuss how the proposed modifications to the permit may impact your operation.
Air permitting compliance is a crucial aspect of operating a facility that generates air emissions. The process involves obtaining permits from regulatory agencies that establish requirements to demonstrate that the facility operates within limits set by air quality regulations.
Air permitting is not just for industrial operations but impacts many businesses.
In Miami-Dade County, Florida, the agency responsible for issuing air permits is the Department of Environmental Resources Management (DERM). Businesses that emit air pollutants, such as fine particulate matter (dust), volatile organic compounds, and hazardous air pollutants, or which operate combustion equipment such as ovens, furnaces, boilers, and backup power generators must obtain air permits to operate legally. The Florida Department of Environmental Quality provides state guidance here. These permits are required to ensure that the facility’s emissions are within limits set by air quality regulations and that the facility is taking the necessary steps to control and reduce emissions.
Local business example
In the case of one apparel printing facility in Miami-Dade County, SCS Engineers (SCS) was hired to assist with obtaining the necessary air permits from DERM. The scope of services included reviewing current and proposed operations information, calculating air emission estimates, and preparing the narrative and application forms. SCS also prepared a Request for Information (RFI) to confirm the necessary background information, such as equipment specifications, facility layout, projected usage, and operating records. The deliverables included an Air Construction Permit Application and an Air Operating Permit Application. In this case, SCS could prove that the client did not need a permit even though the regulatory agency thought they might.
What are the steps?
The process of obtaining an air permit can be complex and time-consuming, which is why businesses often hire specialized environmental engineering firms to assist them. In this example, SCS provided DERM with a detailed report and application package, including a process flow diagram, equipment specifications, and actual and potential emissions calculations.
It’s important for businesses operating in Miami-Dade, or any county, to understand the air permitting process and the regulations set by local authorities. Environmental engineering firms can provide more accurate and detailed information, so management understands the specific air quality regulations that apply to their business.
The value is in implementing the practices necessary to maintain compliance with air quality regulations and keeps your reputation with workers and the community stellar. Businesses continuing to operate illegally face administrative and civil violations, court actions, and potential environmental insurance challenges. Another consideration is that the same engineering firm can likely advise you on stormwater and groundwater permits and compliance for your facility.
About the Author: Troy Schick, PE, is a Project Manager based in our Miami, Florida, office. He is a Professional Engineer licensed in Florida and a Qualified Stormwater Management Inspector.
Stormwater and Air Permitting Compliance Resources for Businesses:
On January 11, 2023, the Illinois Environmental Protection Agency posted the General NPDES Permit for Industrial Storm Water Discharges (NPDES Permit No. ILR00) for public review and comment.
Please note that numerous modifications and additions are proposed for Attachment 1 of the NPDES Permit No. ILR00. At the time of authoring this blog, Attachment 1 has not been made public by the Illinois Environmental Protection Agency. Once this document is made available, a follow-up post will be prepared to summarize the changes associated with each subsector.
Modifications and added parts or sections are summarized below:
All comments on the draft permit and requests for a public hearing must be received by the IEPA no later than February 11, 2023.
Our team of Storm Water professionals in Illinois includes Spencer LaBelle and Scott Knoepke, who are ready to answer your NPDES Permit questions and discuss how the proposed modifications to the permit may impact your operation.
Corporate Headquarters
