PFAS is to Environmental Due Diligence as…
By Joseph Berlin, PE, CP
One could say that the world of environmental consulting has been turned upside down with the emergence of PFAS1 as a concern in conducting Environmental Due Diligence (EDD), especially with its detection in numerous potable water sources and the threshold of concern in the parts per trillion (ppt). Many of us had heard about PFAS as an emerging contaminant, but it came home personally for me when my community and many friends were thrust into the news as the Wolverine House Street PFAS2 issue gained exposure. The fallout from this problem continues to evolve, but the question from an environmental consulting perspective for a Phase I Environmental Site Assessment (ESA) is…would we have identified PFAS as an issue for those identified properties or for the area? What if the report was completed pre-Wolverine? Now? If so, how would PFAS have been identified? What about other potential, new, emerging contaminants?
PFAS and Phase I Environmental Site Assessments (ESAs)
The first question when considering PFAS for the purpose of a Phase I ESA is whether PFAS is recognized as a hazardous substance. As of today, PFAS specifically is not currently listed in CERCLA3 as a hazardous substance. However, as PFAS and related compounds are included on state lists of compounds of concern (e.g. compounds with cleanup criteria developed by state agencies), PFAS is therefore included as a hazardous substance for the purposes of a Phase I ESA. Michigan released cleanup criteria for PFAS (i.e. PFOA, PFOS) in January 2018.
In states with no current listing or criteria for PFAS, the approach is less straightforward. Some considerations have evolved through discussions with other consultants, state agencies, and lender environmental risk managers (ERM). For example, consider contract language to specifically include or exclude Emerging Contaminants, including PFAS, from the Phase I ESA scope of work (SOW). If PFAS is included in the scope of work (SOW), ensure that all parties understand the limitations of a Phase I and II ESA, especially with regard to the rigorous protocols for PFAS sampling in a Phase II ESA.
Although PFAS is ubiquitous in the environment, making reliable sampling practices and techniques critical, the approach for screening a PFAS-related operation as a recognized environmental condition (REC) is the same as for any other hazardous substance. However, we now have many new processes that require additional scrutiny related to the identification of a REC. Our current list identifying PFAS-related processes or operations warranting additional scrutiny in a Phase I EA includes: leather tanning and leather goods (Scotchgard), electroplating, cosmetics, furniture, carpet and textile, airport firefighting, and paper products. Note that this list is being added to and revised continually as new information is provided.
Getting back to WWW Rockford PFAS
Wolverine World Wide (WWW), the seller of Hush Puppies, Merrill, and Cat Footwear, has been a continual member of the Rockford, Michigan community for over 100 years, including operating a leather tannery along the Rogue River in downtown Rockford, Michigan. In addition to dealing with the House Street and Tannery sites, WWW is now dealing with multiple sites of concern across at least four townships north of Grand Rapids, Michigan as tannery waste was apparently used, historically, as a soil additive for local farms.
The initial focus on the Wolverine House Street site was based on the detection of PFAS in the Rockford National Guard Armory potable well in 2017. Eventually, the source of this PFAS was traced back to a WWW disposal location which was used for a limited time for the disposal of waste from their shoe manufacturing process. WWW has asserted that the disposal was “legal” …at the time. As an environmental consultant, that type of statement should generate significant and further attention in any EDD completed for the site.
Historic aerial photographs from the 1960s give an indication of the presence of the “old treatment ponds” formerly located at the House Street site. Additionally, another trigger for screening this location as a REC, prior to the recent discoveries, would be the combination of the fenced property (see photo below) owned by WWW with a small road going back to the old treatment pond area.
Recall that prior to the enactment of the Clean Water Act (CWA), many production wastes flowed directly into the nearest surface water body with little to no treatment. Once such practices were restricted by the CWA, industries in Michigan were licensed (Act 87 of 1965) for a short period (mid-1960s to early 1970s) to use these disposal areas for various industrial wastes. In this case, WWW used the old disposal areas for disposal of industrial waste, including waste from water-resistant consumer products containing PFAS.
Consider the scenario in which the prior use of a site was identified as a REC and your firm was developing the SOW for the Phase II ESA in 2012. Even if you were prescient enough to identify PFAS as a potential problem (i.e. REC), the analytical methods were not reasonably available until just the past few years.
Currently, there are multiple lawsuits between private parties, including at least one class-action lawsuit involving Erin Brockovich, and local units of government against WWW. There is also significant on-going enforcement by the regulatory agency (MDEQ). Many homeowners now have point-of-use filtration systems to remove PFAS, and the MDEQ is conducting a detailed survey of all public water systems in Michigan for PFAS. PFAS has been found in a number of public water systems placing a significant additional demand on agency resources with no end in sight. Clearly, the impact of PFAS in Michigan is significant. We recommend that firms involved in EDD rigorously assess the impact of PFAS and other Emerging Contaminants and include the outcome of such an assessment in your overall EDD program.
1 Per- and polyfluoroalkyl substances (PFAS) are a diverse group of compounds resistant to heat, water, and oil. For decades, they have been used in hundreds of industrial applications and consumer products such as carpeting, apparels, upholstery, food paper wrappings, fire-fighting foams and metal plating. PFAS have been found at very low levels both in the environment and in the blood samples of the general U.S. population. (source: USEPA)
2 Wolverine World Wide (WWW), Rockford, Michigan Link to story.
3 CERCLA 42U.S.C.₴9601(14)