Understanding PFAS: The Emerging Contaminant Challenge for Property Owners
Per- and polyfluoroalkyl substances (PFAS), commonly called "forever chemicals," have rapidly become one of the most significant environmental issues affecting commercial real estate. With new federal and state regulations emerging regularly, property owners, developers, and lenders in New York and New Jersey must understand PFAS risks and incorporate appropriate due diligence measures.
What Are PFAS and Why Do They Matter?
PFAS are a family of more than 14,000 synthetic chemicals characterized by strong carbon-fluorine bonds that make them extremely persistent in the environment. They have been used since the 1950s in numerous applications:
Common PFAS Sources
- Aqueous film-forming foam (AFFF) – Firefighting and fire training facilities
- Manufacturing processes – Electronics, textiles, paper products
- Airports and military bases – Firefighting operations
- Landfills – Leachate from disposed consumer products
- Wastewater treatment plants – Discharge and biosolids
- Industrial facilities – Plating, coating, and chemical production
Why PFAS Are Problematic
- Environmental persistence – Do not break down naturally
- Mobility – Travel easily in groundwater
- Bioaccumulation – Build up in organisms over time
- Health effects – Linked to cancer, thyroid disease, immune suppression, and developmental effects
- Widespread detection – Found in drinking water, soil, and blood samples nationwide
Regulatory Landscape: What's Changing in 2024-2025
Federal Developments
- EPA MCLs for drinking water – Maximum Contaminant Levels of 4 ppt for PFOA and PFOS
- CERCLA hazardous substance designation – PFOA and PFOS now listed, triggering Superfund liability
- RCRA hazardous waste listings – Proposed regulations for PFAS waste handling
- TSCA reporting requirements – Manufacturers must report PFAS uses
New York State
- Drinking water MCLs – 10 ppt for PFOA, PFOS, and 1,4-dioxane
- Groundwater standards – Proposed cleanup levels for affected sites
- Emerging contaminant list – Expanded PFAS compounds under review
New Jersey
- Aggressive MCLs – Among the strictest in the nation
- Groundwater quality standards – PFOA (14 ppt), PFOS (13 ppt), PFNA (13 ppt)
- Site remediation requirements – PFAS investigation mandatory for contaminated sites
- LSRP guidance – Specific PFAS sampling and analysis protocols
PFAS Due Diligence for Property Transactions
Phase I ESA Considerations
Under ASTM E1527-21, environmental professionals must consider PFAS as potential Recognized Environmental Conditions when:
- Historical uses include firefighting, fire training, or AFFF storage
- Manufacturing operations used PFAS-containing materials
- The property is near airports, military facilities, or landfills
- Known PFAS contamination exists in the vicinity
- Groundwater is used for drinking water supply
When to Conduct PFAS Sampling
- Triggered Phase II investigations – When Phase I identifies PFAS concerns
- Pre-acquisition due diligence – For properties with high-risk historical uses
- Refinancing requirements – Lenders increasingly requiring PFAS assessment
- Portfolio screening – Proactive evaluation of property holdings
- Regulatory compliance – NJDEP or NYSDEC directives
PFAS Sampling Considerations
- Specialized protocols – PFAS-free sampling equipment required
- Analytical methods – EPA Method 533, 537.1, or SW-846 8327
- Laboratory selection – Accredited labs with low detection limits
- Compound selection – Which PFAS to analyze based on site history
- Media sampling – Groundwater, soil, and potentially indoor air
Risk Management Strategies for Property Owners
Portfolio Screening
- Identify properties with high-risk historical uses
- Review proximity to known PFAS sources
- Assess groundwater use and pathways
- Prioritize properties for investigation
- Develop response plans for identified risks
Transaction Due Diligence
- Enhanced Phase I scope – Request PFAS-specific historical review
- Contingent Phase II – Budget for PFAS sampling if warranted
- Indemnification provisions – Address PFAS liability in purchase agreements
- Environmental insurance – Consider Pollution Legal Liability coverage
- Representations and warranties – Seller disclosure of PFAS knowledge
Ongoing Property Management
- Monitor regulatory developments affecting your properties
- Maintain records of historical uses and environmental assessments
- Respond promptly to regulatory inquiries
- Consider proactive investigation before regulations mandate it
PFAS Remediation Approaches
When PFAS contamination is identified, remediation options include:
Groundwater Treatment
- Granular activated carbon (GAC) – Adsorption-based removal
- Ion exchange resins – Effective for shorter-chain PFAS
- High-pressure membrane systems – Nanofiltration and reverse osmosis
- Emerging technologies – Destructive methods under development
Soil Remediation
- Excavation and disposal – Limited disposal capacity exists
- Stabilization – Reducing mobility in place
- Soil washing – For certain soil types
- Thermal treatment – High-temperature destruction
CERCLA Liability Implications
EPA's 2024 CERCLA designation of PFOA and PFOS as hazardous substances creates significant liability exposure:
- Potentially Responsible Party (PRP) liability – Past and present owners/operators
- Strict liability – No fault required
- Joint and several liability – Full costs from any PRP
- Retroactive application – Historical releases now actionable
Important: EPA has stated enforcement discretion for certain parties, but liability framework remains concerning for property transactions.
Envicon Group's PFAS Services
Our team provides comprehensive PFAS support:
- PFAS screening assessments – Identify potential exposure sites
- Phase II PFAS investigations – Specialized sampling and analysis
- Regulatory compliance – Navigate evolving NY/NJ requirements
- Remediation design – Treatment system engineering
- Transaction support – Due diligence and risk allocation guidance
Questions about PFAS at your property? Contact our emerging contaminants team for a consultation.