It's Time to Talk about Per- and Polyfluoroalkyl Substances (PFAS) in Your Due Diligence Reports
Per- and Polyfluoroalkyl Substances (PFAS) are emerging contaminants that are garnishing a lot of sudden, focused attention. Most recently, cities across California with at-risk water supplies from military, fire-fighting, and airport operations were directed to begin testing their municipal water for the most common PFAS.
Action levels for PFAS are undergoing development and environmental sampling and remediation of impacted source areas can be expensive and cumbersome. If you are looking to purchase a commercial property, you may be wondering: how does this impact your environmental due diligence?
Why are PFAS a Concern?
Not all types of PFAs have been studied extensively, but for those compounds that have had the most focus in research (PFOS, PFOA, PFHxS and PFNA), animal studies have found that those exposed to PFAS at high levels resulted in changes in liver, thyroid, and pancreas function as well as hormone levels.
PFAS may affect growth, learning, and behavior of infants and children; interfere with fertility and natural hormones; increase cholesterol levels; impact the immune system; and increase cancer risk.
Sources of PFAS
PFAs originate from a variety of manufacturing, military, and industrial processes. They are present in many everyday products that are domestically manufactured, which expands the likelihood of their presence in the commercial real estate sector.
Specific industries include those involved in manufacturing non-stick cookware and ovens, paint and sealant, wrappers/box and grease-resistant paper, water-resistant clothing, stain-resistant coatings, cleaning products, non-natural toiletries, personal care products, and cosmetics, as well as firefighting foam manufacturers. Additionally, areas where a fire has occurred and foam may have been used to extinguish the flames (e.g., airports, industrial fires), as well as firefighting and military training facilities are susceptible to PFAs contamination.
How to Identify Potential Property Risk
Conducting a thorough Phase I Environmental Site Assessment (ESA) is the first step to identifying risk. The Phase I ESA provides a review of historical use and risk back through a property's first development. This review should reveal any prior manufacturing or industrial activities that have a likelihood of hazardous substances or petroleum products use. As part of this assessment, PFAS should be addressed in the same way chlorinated solvents, petroleum products, and other high-risk materials and chemicals are evaluated. Regulatory restrictions for PFAS stand to increase in the future as further research determines risk factors and cleanup goals.
In addition to historical records and agency records reviews that will capture typical hazardous substances uses, I think it is best practice to include a review of newspaper articles and an conduct an in-depth assessment of building records to determine if historical fires occurred at the property that may have resulted in the use of firefighting foam. This extra step provides insight not only on PFAS, but on other contaminants such as dioxins that result from these incidents. A review of surrounding properties for historical military, airport, and fire station facilities is also imperative to identify potential PFAS risk. PFAS are a material where a release report or environmental case may not have been filed or opened if a spill occurred based on the historical lack of regulation, and they do not degrade in nature. A spill from a fire or neighboring property from 30 years ago likely still impacts the subsurface.
We should treat the use and risk of use of PFAS in the same manner that we address historical industrial and petroleum operations prior to regulatory oversight- as a recognized environmental condition.
