PFAS & Environmental Due Diligence – The New Standard of Care

On April 19, 2024, the U.S. EPA designated perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Although the U.S. EPA had originally considered nine PFAS compounds to be listed as hazardous substances due to their potential toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms, U.S. EPA elected not to include those other seven PFAS compounds at this time.  The U.S. EPA’s designation aims to protect public health and the environment from potential exposure to these chemicals and provides a mechanism to hold those determined to be responsible parties accountable for clean-up costs for PFOA and PFOS. 

The CERCLA hazardous substances designation has a direct impact on the due diligence industry under the Phase I Environmental Site Assessment (ESA) ASTM E1527-21 Standard. To meet the Standard, PFOA and PFOS must be included in the assessment.  

Why is it important? 

Entities are required to immediately report new and ongoing releases of PFOA and PFOS that exceed the reportable quantity of 1 pound. Note: past releases do not need to be reported if they are not active. 

Under CERCLA, Federal entities must provide notification to any interested parties if PFOA and/or PFOS were stored, released, or disposed of prior to a property transfer or divestiture of the property. 

How to Identify PFAS Uses: 

The challenge in reporting lies in identifying current or past uses of PFAS (also known generically as fluorochemicals) at a facility. Safety Data Sheets (SDSs) rarely identify PFOA or PFOS, especially since PFAS was not widely known by regulators until the early 2000s. Here are some strategies: 

1. Know Your PFAS Chemistry: 
   • Understand that there are eight different definitions of PFAS, and there are thousands (>7 million by one definition) of PFAS.
   • While the designation is limited to PFOA and PFOS as hazardous substances, identifying other PFAS structures, naming conventions, and groupings is crucial in understanding if PFOA and PFOS are present or could potentially be converted from precursors.
2. Historical Records:
   • Check if any current or past usages correspond to the 13 NAICS codes listed in Table 1 of the 64 NAICS codes listed in Table 2 of the ASDWA PFAS Source Water Assessment Mapping Guide.
   • Review historical records, permits, and other facility documentation for any mention of fluorochemicals use, storage, or disposal.
   • Investigate records related to the use of firefighting foam, stain repellents, or industrial processes where fluorochemicals might have been used.
3. Subject Property History and Activities:
   • Research the Subject Property history, including operations, processes, and activities.
   • Interview long-term, and, if retired, applicable employees.
4. Visual Clues: 
   • Inspect the Subject Property for common fluorochemical-containing materials, such as fire-suppression systems, stain-resistant coatings, or chemical storage areas.
   • Look for legacy equipment or containers associated with PFAS use.

Investigating PFAS at the Subject Property 

Historical documentation of the use of fluorochemicals is typically limited, but the use of these compounds is ubiquitous. Before proceeding with Phase II investigation work, consider:  

• Whether doing so negates any existing contractual or regulatory risk mitigation 
• Source areas (known or suspected)  
• Potential reporting obligations that may be triggered from the sampling event 
• Worker exposure
• Investigation-derived soil or water waste disposal requirements 

1. Nearby Documented PFAS Sources/Contamination:
   • Utilize the U.S. EPA’s PFAS Analytic Tool to identify known PFAS contamination and usages in the neighboring area.
   • Review all available data from nearby surface water or groundwater sampling. Elevated PFAS levels in these samples could indicate a historical discharge or release.
2. Regulatory PFAS Reporting Under TSCA: 
   • The Toxic Substance Control Act (TSCA) Section 8(a)7 requires manufacturers or importers of PFAS or PFAS-containing articles since 2011 to electronically report information regarding PFAS use, production volumes, disposal, exposures, and hazards to the U.S. EPA.
   • Chemical Data Reporting (CDR) mandates that manufacturers and importers submit information on the production and use of certain chemicals.

Take Aways for Environmental Due Diligence

As newly designated hazardous substances, PFOA and PFOS are subject to existing and new regulatory and industry standard reporting and diligence obligations. Gathering and updating Subject Property information requires some time and research. Before embarking on invasive investigations or sampling events, owners/operators should understand whether there are real regulatory triggers or obligations to do so and what requirements they may be subject to.  

How Montrose Can Help  

Montrose Environmenntal’s professionals recognize that evaluating the historical use of fluorochemicals can be challenging. Spending upfront, quality time and effort on research during due diligence is critical.  

Montrose Environmental brings decades and a variety of PFAS experience and knowledge. Our colleagues include due diligence experts, chemists, process engineers, toxicologists, scientists, research specialists, and historians.