14 Oct ASTM Phase I and “Forever Chemicals”: How PFAS has changed the Phase I Environmental Site Assessment
Reading Time: 2 minutes“Forever Chemicals” as Regulated Substances
By now, you’ve undoubtedly heard of per- and polyfluoroalkyl substances, commonly referred to as “PFAS” or “forever chemicals.” Prior to April 2024, PFAS was considered a “federally unregulated emerging contaminant,” making its impact on the due diligence process murky. However, following the USEPA’s April 2024 designation of PFAS as a hazardous substance, PFAS is now recognized as a “major environmental concern.” Consequently, to meet the minimum requirements for Phase Is, every Phase I must now include specific inquiries into the presence and history of PFAS use or disposal at the site. While this will likely increase the cost of getting a Phase I, this article explains why property owners, developers, and the public will ultimately benefit from the change.
How will the Phase I Environmental Site Assessment Change?
Investigating and remediating PFAS can be both difficult and expensive due to their concentrations being measured in the parts per trillion and also because of their extreme toxicity. As such, here’s what you need to know about the changes to expect in Phase I environmental site assessments going forward:
- Phase Is will require more thorough research into the historical operations of a site, particularly if industries known to use PFAS (e.g., firefighting, textiles, and manufacturing) operated on or near the property. In addition, environmental consultants may need to conduct more detailed site visits to identify potential sources of PFAS contamination, including nearby industrial sites and landfills;
- Communities are becoming more aware of PFAS risks, which can influence the due diligence process. Assessors may need to engage with local stakeholders or residents about known contamination issues, thus impacting the assessment process;
- Failure to adequately address PFAS in a Phase I could expose buyers or developers to significant liabilities if contamination is discovered. Properly identifying potential PFAS issues is crucial for informed decision-making;
- If a Phase I indicates potential PFAS contamination, it may lead to a Phase II site investigation to assess the extent of contamination and develop remedial strategies. The potential cost of remediating PFAS can be substantial, influencing investment decisions and project viability.
Evolution and Adaptation
The inclusion of PFAS in Phase I environmental site assessments represents a significant evolution in the process of identifying and managing environmental risks. As awareness and regulations surrounding PFAS continue to develop, assessors will need to adapt their methodologies to ensure thorough evaluations, protect public health, and minimize liability for stakeholders. This shift underscores the importance of comprehensive environmental due diligence in property transactions and development projects.
The Upside of PFAS Regulation
Inevitably, elevating PFAS to “major environmental concern” status will result in longer Phase I turnaround times, increased due diligence pricing, and a heightened level of scrutiny to evaluate current and potential environmental risks at a given property. However, the benefits to public health and safety resulting from these changes cannot be overlooked. Potentially enormous public health impacts associated with PFAS will have a better chance of being avoided. And addressing PFAS issues prior to the sale and development of a property can potentially save untold sums in post-development remediation. Further, the presence of PFAS at a property doesn’t always mean that the owner of the property is the party responsible for the remediation. Ultimately, a Phase I environmental site assessment protects the property owner from liability for environmental impacts they did not cause.