Following our post on CERCLA laws and liabilities, this week the EBI blog focuses on contaminants of emerging concern and possible impacts on environmental due diligence.
There are nearly one hundred different chemicals currently scheduled for further assessments by the EPA per the Toxic Substances Control Act (TSCA), the results of which could affect environmental due diligence testing. If the chemical is determined to have a higher or lower risk threshold, or has a newly implemented testing requirement, these could affect site testing standards. Similarly, these changes could affect the outcomes of future testing on a site during refinance or transfer of the property, if a chemical no longer meets current standards for acceptable levels.
Different states may already have their own regulations and research on these chemicals as they attempt to curb contamination, rather than waiting on the EPA’s findings. Below are three contaminants of emerging concern which are being reviewed by the EPA, and are already facing some state-level interventions.
Per- and Polyfluoroalkyl Substances (PFAS)
[i] PFASs have been the big name in contaminants of emerging concern, drawing national attention as levels considered to be dangerous have been discovered in drinking water in several states. PFASs are manmade chemicals used since the 1950s in nonstick or water resistant goods, packaging materials, fire retardants, and electronics manufacturing among other products. They do not break down in the environment and are highly mobile through water, which is the main source of exposure for most people. There are several PFAS daughter compounds which fall under the same scrutiny, including PFOA, PFOS, PFNA, and PFDA.
Earlier this year, the EPA launched an initiative to address PFAS use, contamination, and remediation. However, no regulations have been proposed. Instead, states like New Jersey, New York, Vermont, and Washington have adopted their own regulations, and eight states (AK, DE, MI, MN, NV, NH, NC, and TX) have developed soil screening levels and protocols. [ii]
1,4-Dioxane is a synthetic industrial chemical used in the manufacture of other chemicals, as a purifying agent in the manufacture of pharmaceuticals, and is a byproduct in the manufacture of polyethylene terephthalate (PET) plastic, among other uses. It is also typically associated with trichloroethane (TCA) because of its widespread use as a stabilizer for chlorinated solvents commonly used in dry cleaning solutions.
Like PFASs, 1,4-Dioxane permeates groundwater rapidly and is relatively resistant to biodegradation. It has been found in drinking water in 45 states which put it as a top priority on the TSCA list of toxins to review, but no regulations or limits have been set by the EPA. [iii] California, Colorado, Massachusetts, New Hampshire, and New Jersey have set groundwater guidelines that are all below 1 ppb of dioxane, but despite public pressure, no actionable measures have been implemented yet.
RDX is a synthetic chemical used primarily as a military explosive and in controlled demolitions. It is commonly found at artillery ranges, munitions testing sites, explosives washout lagoons, demolition areas, and open burn/open detonation sites. It easily migrates through soil and into groundwater where it not only becomes a hazard to drinking water but also to agricultural crops irrigated with the contaminated water. RDX bioaccumulates in plants, so eating crops irrigated with RDX-contaminated water is another route of exposure. Near Salt Lake City, this was the alleged cause of spiked cancer rates investigated in 2004. [iv]
Some states, like Massachusetts, Pennsylvania, and North Carolina established soil guidelines and standards, and a handful more states established groundwater guidelines (CA, IN, ME, MA, MI, NE, NJ, NM, PE, WV). RDX has been added to a top priority list of unregulated contaminants to be reviewed by the EPA. [v]
Impact on Environmental Due Diligence
With improved technology allowing for the detection of many of these chemicals in soil and groundwater where it wasn’t previously feasible, we are seeing greater scrutiny of previously overlooked contaminants. The examples above are just a few among dozens of chemicals being reviewed by the EPA, and though they may not yet be listed as a hazardous material according to CERCLA, there are other liability risks to consider.
Because regulations and standards have not been widely set, many properties with suspected or potential impacts are not required to investigate or address these chemicals at this time. However, as regulators obtain more data on health impacts, more states will assign environmental standards, and eventually the EPA too will set official standards. Since many of these chemicals were rarely investigated in the past, there is potential for contamination at a property, despite previous investigations. Additionally, owners of contaminated property can be vulnerable to personal injury and toxic tort lawsuits claiming that exposure to a chemical or dangerous substance caused injury or disease. [vi] Accordingly, going beyond CERCLA requirements may be in one’s best interest (or necessary, depending on state regulations) if there is suspicion that certain contaminants are present.
Knowing the historic and current uses of a property is the first step in determining the possibility or likelihood of certain contaminants to be found. For instance, sites where paper goods were or are manufactured are potential sources of PFASs, and sites that used certain explosives for demolition or located near military bases have the potential for RDX contamination.
Concerned about Emerging Contaminants on your Property?
A Phase I Environmental Site Assessment is the first step in determining the historic use of a property and neighboring properties and the likelihood of contamination. EBI Consulting’s team of experts can assess the site and provide a comprehensive analysis, helping you determine next steps, if necessary, and guide you through this emerging regulatory landscape.