Are Your Due Diligence Activities “Emerging” With The Times?

For years environmental due diligence has focused primarily on adverse impacts from contaminants like volatile and semi-organic compounds, metals, asbestos, lead, etc.  However, in recent years a new threat to certain real estate transactions has emerged. Emerging contaminants are synthetic or naturally occurring chemicals that are not commonly monitored in the environment but have the potential to cause known or suspected adverse ecological and/or human health effects. The most common emerging contaminants are per- and polyfluoroalkyl substances (PFAS), which includes the chemical Gen-X found at the Chemours plant in Fayetteville, NC. PFAS include a broad classification of over 5,000 chemicals used for non-stick products (e.g. Teflon), cosmetics, skin care products, water repellent clothing, fire-fighting foam, chrome plating, electronics manufacturing and many other industrial applications. These chemicals are persistent in the environment and in the human body – meaning they don’t break down and they can accumulate over time. There is also evidence that exposure to these chemicals can lead to adverse human health effects. At the present time these chemicals are primarily a concern for surface water and groundwater, but concerns associated with air, soil and plant materials are growing.

Phase I Environmental Site Assessments must be conducted in accordance with 40 CFR Part 312 (or the ASTM E 1527-13 standard) to obtain protection from potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.  To date, PFAS have not been added to CERCLAs list of hazardous substances. So, should you be testing for emerging contaminants in your Phase II ESA studies? First, make sure you have a clear understanding of historical activities at and in the vicinity of the site to determine whether there is a potential for impacts from an emerging contaminant. Second, understand the regulatory climate as it relates to these contaminants because like the contaminants themselves, this is emerging. Third, understand the pros, cons and ramifications of such testing and how it impacts the overall needs of your project. Whether dealing with emerging or traditional contaminants, make sure you are making an informed decision prior to moving from the Phase I to Phase II stage of any project.

 

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