Environmental Due Diligence

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Q&A from LightBox’s December 2022 PFAS Event: Tips for Talking About PFAS Risk in CRE Due Diligence

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LightBox Insights
January 5, 2023 5 mins

PFAS is an extremely complex topic for environmental due diligence consultants to address in their conversations about environmental property risk with clients given that policies and regulations are still taking shape. To demystify PFAS and give EPs tips for talking to their clients, LightBox hosted a LinkedInLive event, PFAS Due Diligence Park 1: ESA Scoping Strategies on December 14th. Moderated by LightBox’s Dianne Crocker, Alan Agadoni, SVP EDR Solutions, led a technical discussion with two leading PFAS experts:

  • Jon Kitchen, a principal at Civil and Environmental Consultants, Inc. who recently completed an extensive database study of PFAS sites in New England; and
  • Ned Witte, an attorney shareholder in the Environmental Strategies Practice Group of Godfrey & Kahn, a Milwaukee-based law firm. In late 2020, Witte, a nationally-recognized PFAS expert, was selected by the Biden-Harris Agency Review Team for the federal EPA as an outside PFAS consultant.

Below are our responses to the questions raised by attendees during the live event.

Liens/AUL Searches under ASTM E1527-21

Would you anticipate that the simple existence of a previous fire at a property will lead to a known Recognized Environmental Condition (REC)?

Jon Kitchen: It will likely depend on the circumstances. Assuming that some of the PFAS compounds that are present in Aqueous Film Forming Foam (AFFF) become regulated under CERCLA in the future, and are, as such, defined as hazardous substances under the ASTM E1527-21 standard, then at a minimum, we would expect that any fire where AFFF was applied would be considered a REC. Under the scenario mentioned above, if it is not known whether AFFF was applied, then any fire involving fuel or flammable chemicals may be considered a REC.

What if you have a fire and the Fire Department responds? Who then is responsible for addressing any PFAS condition?

Ned Witte: This will be fact-specific and dependent on applicable state law, for now, and ultimately application of federal law. However, a fundamental tenet of legal responsibility for environmental conditions is ownership of the contaminated property, in addition to operation of the same or causal responsibility. So, subject to enforcement discretion and the solvency of an entity that caused the PFAS release, the owner of the property may be in the greater web of liability for PFAS conditions it did not even cause.

When will the US EPA will approve E1527-21?

Dianne Crocker: On December 15th, the day after our live event, the US EPA published notice in the Federal Register officially amending the All Appropriate Inquiries rule to reference ASTM E1527-21 and allow for its use to satisfy the requirements for conducting AAI under CERCLA. EPA’s final action to amend the AAI rule becomes effective on February 13, 2023.

Did the EPA ever explain why they withdrew this summer from the process to accept the 21 standard?

Alan Agadoni: The US EPA explained in the March 2022 Federal Register notice that the action would be withdrawn if there were negative comments received during the comment period. After negative comments were received, the USEPA withdrew the action in May 2022. In the December 2022 Federal Register notice, the agency addressed the negative comments as part of its final rule.

You mentioned integrating data from PFAS databases into EDR reports. Where can we find this information in the reports? Is this PFAS data considered “practically reviewable” at this time?

Alan Agadoni: We search for PFAS data across scores of states and federal databases. You’ll find a summary of the databases in the Map Findings Summary section of the Radius Map PDF and in LBX. When records are found in the search, they are reported in the Executive Summary and Map Findings Detail. Descriptions of the data searched are contained in the Records Searched Section at the end of the PDF and in LBX.

ASTM E1527-21 (Section 3.2.65) states that information is practically reviewable if it “… is provided by the source in a manner and form that…yields information relevant to the subject property without the need for extraordinary analysis of irrelevant data.” The practice goes on to explain that if information is sorted geographically, such as by addresses on or near the subject property and is not so voluminous that it can be feasibly reviewed, then it is practically reviewable. The relevancy and volume of data will vary by project, but it should be practically reviewable in most cases.

If escrow is part of the signing, what are your recommendations for a Phase I ESA? Would you suggest a Phase II ESA to limit the risk and to determine trigger values to get the escrow?

Ned Witte: This will be specific to the deal, and more information would be helpful to form a fuller response, but, in general, the Phase I > Phase II approach sounds sensible.

Is it true that PFAS are in approximately 90% of the municipal water supply?

Jon Kitchen: We are not aware of studies showing detection of PFAS in water supplies at a rate quite that high. One study of the eastern United States by USGS reported the detection of PFAS in 60% of public water wells tested. In any case, the detection of PFAS in drinking water is quite common. Although the database of information is still evolving, the detection of PFAS at concentrations greater than an applicable state or federal standard is less common, but not insignificant.

When the regulatory updates go live, can we limit our assessment to the two PFAS that will be identified by the USEPA as hazardous substances? I realize we still may recommend that clients consider other PFAS that may also be present.

Jon Kitchen: Compliance with ASTM’s E1527-21 standard would relate only to PFAS identified by the USEPA as “hazardous substances.” However, as you note, we would caution that your assessment of other PFAS compounds should be considered, especially in jurisdictions where those compounds are regulated or where regulations are pending. Additionally, precursor compounds which may transform into regulated compounds should also be considered.

Is there an estimate of when the US EPA might have the main PFAS/PFOA COCs being considered and listed as hazardous substances? Big question, but when could be the soonest, logistically?

Ned Witte: The US EPA has targeted the end of 2023 to finalize the proposed identification of PFOA and PFOS as CERCLA hazardous substances. There is obviously momentous industry pushback on the regulation as well as efforts by specific industry sectors (e.g., airports, landfills, and municipal wastewater treatment plants) for fair treatment and perhaps exemptions under the law. It could be that this first-ever process of specifically listing specific substances as hazardous substances could take longer but, for now, US EPA is pushing for the end of 2023. [LightBox will be closely tracking the progress and sharing information on the timing with our clients.


For the full replay of our December 14th LinkedInLive event, including more insights from our panelists on considerations for scoping our PFAS assessments as part of a Phase I ESA project, as well as the legal implications, click here.

To stay abreast of the latest developments and technical resources related to assessing PFAS risk, as well as links to past blogs and webinar replays, visit the LightBox PFAS Resource Center.

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