New Regulations Impact Environmental Assessments
The Environmental Protection Agency (EPA) recently classified perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the “Superfund” law. This new regulation will significantly affect real estate transactions, introducing stringent reporting requirements and complicating liability and insurance matters related to polyfluoroalkyl substances (PFAS) contamination.
Previously, Phase I property investigations did not have to consider evidence of releases of PFOA and PFOS. However, some did as a business risk similar to asbestos shingles or lead paint on woodwork. Now, environmental professionals must identify and report any releases or likely releases of these hazardous substances, which, in some cases, lead to more Phase II environmental sampling and remediation if significant contamination is confirmed.
Undertaking all appropriate inquiries—a Phase I site assessment—is one of several requirements for real estate purchasers to qualify for Superfund landowner liability protections. Others include complying with any reporting obligations and taking reasonable steps with respect to known contamination. Experienced consultants can help address the technical aspects of these requirements, typically working with experienced attorneys to address the legal aspects.
PFOA and PFOS, widely used in various industries due to their heat, water, and oil resistance, can contaminate commercial or industrial properties from various sources, including firefighting foams and PFAS manufacturing plants. During Phase I environmental assessments, evaluating the property’s historical and current use and nearby properties is crucial to identify potential PFAS sources. This analysis guides further investigations, such as Phase II assessments, where specific sampling and analysis can verify PFAS presence and concentration.
The primary mechanisms and pathways through which PFAS are released at industrial facilities typically include discharges of wastewater and stormwater; disposal of solid wastes on and off the site; accidental occurrences like leaks and spills; and stack and fugitive air emissions. Emissions from stacks can lead to the aerial dispersion of PFAS, depositing these substances onto soil and surface water. In some circumstances, PFAS can leach or otherwise contaminate groundwater and potentially migrate offsite.
Facilities Using PFAS in Processes
Secondary manufacturing facilities often utilize fluoropolymers and PFAS-based materials, which are produced at primary manufacturing sites, as part of their industrial processes. This includes applying coatings to finished products.
Chrome Plating: Facilities use PFAS as mist suppressants to minimize chromium emissions into the air, enhancing air quality and worker safety. Facilities employ PFAS as mist suppressants to reduce chromium emissions into the air, thereby improving air quality and enhancing worker safety. According to the USEPA (2021), half of the 1,339 chromium electroplating facilities in the United States continue to use PFAS-based mist and fume suppressants. Chrome electroplating is identified as the primary industrial process where PFAS is significantly used. In this method, PFAS function as surfactants, lowering the surface tension of the electrolyte solution.
Textiles and Leather Production: Manufacturers of performance fabrics for outdoor gear and military uniforms often use PFAS to provide water, stain, and fire resistance. Similarly, PFAS are applied in the leather tanning process to improve the water and stain resistance of products like furniture and clothing.
Electronics Manufacturing: PFAS are utilized for their heat- and chemical-resistant properties when producing circuit boards and semiconductors, ensuring the longevity and reliability of these components.
Maintenance and Mechanical Areas
Lubricants and Greases: Industries such as automotive and machinery maintenance use PFAS-enhanced lubricants and greases for their ability to withstand extreme temperatures and reduce wear and friction, which are crucial for protecting machinery under harsh conditions.
High-Temperature Applications: PFAS compounds are included in formulations used in industrial ovens, automotive wheel bearings, and several types of valves and pumps to maintain performance under extreme heat.
Commercial and Research Uses
Commercial Properties: Facilities such as kitchens, laundries, and workshops might have used PFAS-containing products like sealants and adhesives, leading to potential soil or groundwater contamination from spills or improper disposal.
Aerospace and Defense: Beyond firefighting foams, these sectors may use PFAS in applications like coated fabrics and specialty hydraulic fluids.
Research Facilities: These may experience contamination from PFAS due to spills or disposal practices during experimental or development phases.
Special Applications and Adjacent Properties
Hydraulic Fluids and Special Equipment: PFAS are crucial in applications requiring non-reactivity and thermal stability, such as in hydraulic systems of aircraft and high-temperature industrial settings, or in vacuum pumps.
Adjacent Contamination: Properties neighboring PFAS-utilizing facilities can also become contaminated through runoff or subsurface water flow, highlighting the need for comprehensive environmental assessments.
Paints, Varnishes, and Inks: PFOS-related chemicals are utilized in several ways within paints and varnishes. They serve as wetting, leveling, and dispersing agents and are also used to enhance gloss and antistatic properties. Furthermore, these chemicals are employed as additives in both dyes and inks.
Architectural Fabrics: PFAS, including fluoropolymers such as PTFE, are used in the manufacture of architectural fabrics, such as those used in the construction of roof domes, including large stadiums and transportation facilities.
Enforcement Discretion
EPA is aware that many public institutions, such as municipal landfills and wastewater treatment plants, do not have a choice when they receive household waste containing PFAS. EPA’s PFAS Discretion Memo lists several factors the EPA will consider when determining not to pursue an entity for PFAS response actions or costs under CERCLA. PFAS Discretion Memo
The widespread use and environmental persistence of PFAS underscore the importance of thorough environmental assessments to identify potential contamination sources. Understanding the extensive applications and potential pathways of PFAS contamination is crucial for effective management and remediation strategies in environmental assessments.
Reach SCS at .
Additional Resources:
Authorized under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA), the Toxics Release Inventory (TRI) tracks the management of certain toxic chemicals that may pose a threat to human health and the environment.
Manufacturers, including food and beverage, electric utilities, and mining facilities, may need extra time this year to comply with recent rule changes related to per- and polyfluoroalkyl substances (PFAS).
TRI reporting is a two-step process, and covered facilities with at least ten full-time equivalent employees must complete the first step to evaluate whether a report is required each year. For each chemical that exceeds a reporting threshold, EPA requires the facility to calculate releases to the air, wastewater, and stormwater and the amount of the chemical recycled or treated on-site or sent off-site for treatment during the previous calendar year.
TRI Reporting Unscrambled and No-Strings Attached
SCS Engineers presents an on-demand educational video with complimentary articles and additional resources to get you started. Cheryl Moran, a senior project manager with decades of experience in regulatory compliance, sustainable practices, and chemical management, covers what you need to know to get started and what has changed that may require your facility or business to start reporting:
Additional TRI Resources
