Written by Jeffrey Porter, Mintz
With all the attention on PFAS over the past few years, you might assume that your standard Environmental Site Assessment would assess the possibility that the property you’re buying has been impacted by PFAS, the “forever chemicals” that are on their way to being regulated by the Federal Government in parts per trillion (and are already regulated in such minute concentrations in many states).
But, as Inside EPA reports, because PFAS are not yet “hazardous substances” according to Federal law, the current ASTM standard for Environmental Site Assessments doesn’t cover them.
That means you need to make sure your site assessment professional adds PFAS to its scope of work.
Examples of properties where one might find PFAS include properties at or in the vicinity of properties where electroplating, semiconductor manufacturing, automobile manufacturing or recycling, waterproofing, stain resisting, or box manufacturing has occurred as well as any property on which fire fighting foam may have been applied.
According to Inside EPA, if the U.S. EPA’s schedule holds, this loophole will be partially tightened this summer when EPA blesses the 2021 version of the Site Assessment standard but careful property owners will still review their site assessors’ scopes of work to make sure their Environmental Site Assessments are doing what they think they are doing.
EPA is moving quickly to adopt a recently revised industry standard that added per- and polyfluoroalkyl substances (PFAS) into its methods for assessing potentially contaminated properties, clearing the way for certain parties to use the standard as they seek to win Superfund liability waivers at brownfield sites under the “all appropriate inquiry” (AAI) rule.
About the Author
With over three decades of litigation and transactional experience, Jeffrey Porter is widely recognized as one of the top environmental lawyers in the country. Clients seek him out to solve complex environmental law challenges. Jeff is Chair of the firm’s Environmental Law Practice. He is a Fellow of the American College of Environmental Lawyers and a Massachusetts Environmental Trustee. He was the Chairman of Boston Harbor Now, a member of the MassDevelopment Board of Directors, and the Chair of The Nature Conservancy’s Trustee Council, having previously served as the Chair and Vice-Chair of The Nature Conservancy in Massachusetts.