Commercial Property Acquisitions and PFAS Risk

March 20, 2018

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Commercial Property Acquisitions and PFAS Risk

Recommendations for acquiring commercial properties and avoiding risks with evolving regulatory landscape of PFAS

 

We frequently assist clients who acquire and divest properties.  These clients are adept at evaluating the potential of a property to enhance their portfolio.  Factors such as location, traffic, condition of the property, structures, and mechanical systems, compliance with building codes and zoning, and the environmental setting and potential for the presence of hazardous materials are all part of the equation of the due diligence process.  Until recently, the presence of a car wash on the property or nearby may not have raised significant concerns from an environmental due diligence perspective – that thinking has changed.

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PFAS Contamination from Car Washes

 

Environmental practitioners are now looking carefully at the operation of car washes and adding the analysis of Per- and Polyfluoroalkyl Substances (PFAS) - sometimes referred to as perfluorinated chemicals (PFCs) - to groundwater and drinking water samples. What are PFAS and what has prompted this change?

 

What are PFAS?

 

PFAS have many uses and are found in familiar products. PFAS are sold under brand names such as Teflon™, Gore-Tex®, Scotchgard®, and Stainmaster®. Commercial products that contain PFAS include cookware, food packaging, personal care products, stain resistant chemicals for apparel and carpets, firefighting aqueous film-forming foam, rubber and plastics, and car wash solutions. PFAS have long been praised for their strong properties that help make products water resistant / oil resistant. These same properties are what make them difficult to break down in the environment. Only in recent years has science been able to show the potential negative impacts they are making on the population’s health, hence the new focus of regulations.

PFAS are commonly found in car wax, making car washes a likely target for local environmental regulatory agencies as they try to identify potential sources of PFAS environmental impacts. Other targets for PFAS include landfills, active hazardous waste sites, sites with historic industrial process using PFAS, and crash sites or fire training areas like airports, where fire fighting foam has been sprayed.

 

In the News

 

Since 2015, Southern New Hampshire and Vermont has become the center of news regarding the detection of PFAS across wide-spread areas. The area impacted around the Saint-Gobain facility in Merrimack, New Hampshire is as large as 30 to 40 square miles. The area of groundwater contamination is unlike any other in New Hampshire given the number of private and public water supplies impacted.

The Coakley Landfill, located in North Hampton, New Hampshire, has been in the news as having PFAS detected in groundwater and from samples collected from nearby water supply wells that serve North Hampton, Hampton, and Rye. The New Hampshire Department of Environmental Services (NHDES) has been investigating properties between the landfill and the water supply wells. In November 2017, the NHDES reported that PFAS were detected in groundwater samples collected from a nearby car wash located 3,300 feet from the well that was shut down as a result of impacts. Levels of two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctyl sulfonate (PFOS), were detected (9,000 parts per trillion [ppt]) well above the NHDES Ambient Groundwater Quality Standard (AGQS) of 70 ppt. The car wash does not discharge into a sanitary sewer or holding tank, but to an on-site leach field. The result of this finding will only increase regulatory interest of car washes as potential PFAS sources.

 

PFAS Regulations in New England

 

The environmental regulations regarding PFAS are rapidly evolving. The United States Environmental Protection Agency (USEPA) issued drinking water lifetime health advisories for two out of several PFASs being investigated, PFOA and PFOS, on May 19, 2016. However, national standards have yet to be established, and State and local agencies are rushing to created strict standards that protect the public and businesses that have been relying on these compounds for years.

In New England, each State varies, and regulations are a moving target. Vermont took a strict stance, quickly establishing a 20 ppt detection limit and a preventative action limit of 10 ppt. New Hampshire established AGQSs of 70 ppt for PFOA and PFOS and 70 ppt for PFOA plus PFOS where these chemicals are encountered together. However, as of January 2018, there are several new bills being evaluated in the New Hampshire legislature that could decrease these levels and/or require AGQSs for additional PFASs. Connecticut established detection limits for five PFASs (versus the more standard PFOA/PFOS).

 

PFAS Testing: Selecting a Laboratory and Proper Sampling Protocols are Critical

 

Because of the potential presence of PFAS in common consumer products and in equipment typically used to collect groundwater samples, and the low detection limits associated with laboratory PFAS analysis, special handling and care must be taken when collecting samples for laboratory analysis.

It is important to utilize a laboratory with experience in PFAS analysis. Make sure that the laboratory reportable detection limits meet the project-specific goals and/or current regulatory standards. Always order sampling containers directly from the laboratory conducting the analysis. Once containers have arrived, check the order and keep bottles in packaging from the laboratory.

Prior to sampling, ensure that “prohibited” items (those that could contain PFASs) should not brought to the site and not used during mobilization or sampling. Avoid waterproof/treated paper or field books, plastic clipboards, non-Sharpie® markers, Post-It® notes, and other adhesive paper products. Clothing or boots made with Gore-Tex®, or other synthetic water resistant and/or stain resistant materials (Tyvek®), should be avoided.

Staff performing the sampling are advised to wear synthetic or cotton material, previously laundered clothing at least six times without the use of fabric softeners.

 

Recommended actions as part of your commercial real estate due diligence process

 

If you are considering an acquisition, the following are a few recommended additions to your due diligence protocol:

  • Check with your local regulatory agency for updates on regulatory limits. Each State has its own limits, and this regulatory scene is changing rapidly.
  • If there is a car wash on-site or nearby, evaluate the operational history. Was there an on-site discharge prior to the use of a municipal sewer system? If so, add the appropriate PFAS to your analytical suite to establish baseline conditions.
  • If there is an on-site water supply well and a car wash either on-site or nearby, be sure to sample the supply well. Carefully examine the piping components to evaluate if possible sources of PFAS contamination, such as Teflon™ tape, are located prior to water supply system sampling ports.
  • Request that your consultant utilize sampling protocols that eliminate the possibility of cross-contamination resulting in detections that may not be accurate or reflective of actual conditions.

Although there are some regulatory standards, the response to PFAS detections from regulators is not entirely clear because the science and regulations are rapidly evolving. Given the uncertainty in the extent and cost of potential response actions, establishing baseline conditions prior to an acquisition and limiting future liability through the transactional documents is advised.

 

About the Author

 

Brian D. Kisiel, P.G. is the President of GeoInsight, Inc. For over 30 years, Kisiel has been providing environmental consulting services to solve the challenges faced by clients throughout New England.

 Get in Touch with Brian

BDKisiel@GeoInsight.com | 800.217.1953