Those in the real estate business are familiar with the environmental due diligence process. Understand the site – the site history, the
current use, the abutters etc. – and if warranted and based on that understanding, develop a testing program to determine if past or current activities have resulted in a release of contaminants that could affect the property of interest. If a property is or was a gas station you look for petroleum contaminants. If a property was a plater, you might look for metals. Transformers? Look for PCBs.
It is important to tailor what you are testing for to what contaminants you might expect to see. But deciding what to look for also means deciding what NOT to look for – what analyses will not be performed and therefore what possible contaminants might be missed. It would be cost prohibitive, and in most cases unnecessary, to test for all conceivable contaminants at every testing location so investigations are tailored what we might expect to find.
But that thought process might be amended when it comes to PFAS compounds.
A recent study at the Florida Department of Environmental Protection looking at releases from dry cleaning operations established a correlation between chlorinated solvent plumes and the presence of PFAS in groundwater. The working theory is that PFAS compounds, used to waterproof clothing among myriad other uses, comes off clothes during the cleaning process and become part of the dry-cleaning waste. If that waste is somehow released to the environment, then the PFAS compounds are also released. Drycleaners and the improper disposal of dry-cleaning waste has long been a concern with respect to releases of chlorinated solvents but now the concern is that PFAS compounds may also be contaminants of concern.
What does this mean for due diligence?
PFAS/PFOA compounds were widely used in hundreds of applications and processes and as a result there are lots of ways they can get into the environment. In some cases, they are so ubiquitous that once found, definitively identifying a source for the detected PFAS can be a challenge. They are an emerging contaminant with regulators struggling to understands the risk and come up with cleanup standards. They are persistent compounds that do not break down and are generally difficult to remediate. Discovering PFAS/PFOA compounds throws an additional wrench in evaluating sites.
So, what do we recommend?
We believe that the breadth of analysis recommended during due diligence should come from an understanding of the site and site-specific concerns. That approach will not change. But this new information means that we need to improve our understanding of industrial practices, chemical usage and possible release mechanisms so that we can make informed decisions about what to look for and when. Further, as regulators make decisions and develop notification and cleanup standards for these emerging contaminants, we all need to stay abreast of regulations and treatment technologies so that in the event we find a contaminant we understand the implications and can make informed recommendations about what to do next. As for what we recommend? Stay tuned but do not be surprised if this as a consideration during your next due diligence effort.
A member of the REBA Environmental Law Section, Sam Butcher is an LSP with Connecticut-headquartered Loureiro Engineering’s Rockland office. He has directed numerous environmental investigations, remedial action planning and implementation, and permitting projects. Sam’s email address is swbutcher@loureiro.com. He thanks Dianne Phillips of Holland & Knight for bringing this issue to his attention.
