What do the TSCA and EPCRA PFAS changes mean for environmental due diligence?

PFAS regulations are evolving quickly. This article looks at the latest changes in TSCA and EPCRA and what they might mean for those purchasing or financing commercial or industrial real estate.

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Changes in TSCA

On October 11, 2023, the United States Environmental Protection Agency (USEPA) published its rule for the Toxic Substances Control Act (TSCA) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) in the Federal Register. The final rule covers 1,462 PFAS and its effective date is November 13, 2023.

With this rule change, USEPA requires manufacturers and importers to submit information (e.g., use, production volumes, byproducts, disposal, exposures, and known environmental and health effects) regarding PFAS use since January 1, 2011, to enable the characterization of sources and quantities of PFAS manufactured domestically or imported.

The implementation of this rule will result in increased reporting of PFAS use, which will be reflected in USEPA’s TSCA database reports that are utilized as part of the Phase I Environmental Site Assessment (ESA) process conducted in conformance with ASTM E1527-21. Reviewing and documenting the most current data on the USEPA TSCA PFAS database is anticipated to be an important task to complete as part of a Phase I ESA.

Changes in EPCRA

On October 31, 2023, the USEPA finalized a rule to institute changes to the Toxic Release Inventory (TRI) reporting requirements for PFAS and the supplier notification requirements for all chemicals of special concern as covered under the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA requires facilities to report hazardous chemical inventories of materials used and stored onsite.

This ruling, which becomes effective on November 30, 2023, and shall apply for the reporting year beginning January 1, 2024 (reports due July 1, 2025), applies to all 189 currently listed PFAS along with any future additions, precluding them from the de minimis exemption.

Due to this rule change, the TRI database is also anticipated to have increased usefulness in environmental due diligence.

Reviewing and documenting data reported through this new rule are expected to be important tasks to include in Phase I ESAs conducted under ASTM E1527-21. For example, the TRI database, currently provided in radius searches by some third parties, may be one area where this new TRI data may be located. A more specific determination regarding whether new databases, or perhaps linkages to other existing databases for the expanded reporting requirements and new PFAS data, is anticipated to be forthcoming from USEPA.

Key takeaways

Prospective financers and buyers of commercial and industrial real estate should pay careful attention to the potential for emerging contaminants, particularly PFAS, in their pre-acquisition due diligence, by ensuring their Environmental Professionals (EPs) conduct Phase I ESAs in accordance with ASTM E1527-21. The EPs should also consider regulatory developments, such as the recent rule changes under TSCA and EPCRA, which can reveal important information related to the subject property, adjoining properties, and other properties in the area.

Because considerations of emerging contaminants such as PFAS are currently referenced as non-scope considerations in the ASTM E1527-21 standard, it may be prudent to discuss with the client their needs and risk tolerance and adjust the due diligence scope of work accordingly.

Increasingly, PFAS are being identified in state agency database for jurisdictions that have established regulations and/or guidance pertaining to emerging contaminants.

What’s next?

It is widely anticipated that USEPA will add PFAS to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) hazardous substances list in the near future, thereby making the evaluation of PFAS an in-scope item during the Phase I ESA due diligence process.

How Ramboll can help

Ramboll routinely assists clients in evaluating potential risks associated with PFAS and other emerging contaminants in the US and around the world, and with preparing environmental liability cost estimates to support mergers and acquisitions and other environmental due diligence for property transactions. These estimates may be used to pursue indemnity agreements, releases of liability, environmental insurance, or assist in purchase price negotiations.

We have global experience with a local presence, and our multidisciplinary teams work seamlessly across jurisdictions. Our unmatched reputation is built on decades of experience with regulators, close collaboration with attorneys who are equally keenly focused on mitigating risk for their clients, and undertaking thousands of transactions every year. We have an excellent understanding of many industrial processes, and the experience and insight to identify potential PFAS sources and/or PFAS in processes where they may otherwise be overlooked.

Beyond support with due diligence, Ramboll provides additional technical and advisory support services for PFAS and other emerging contaminants, including investigation, remediation, forensics analysis, expert testimony and litigation support, drinking water and wastewater treatment, air quality, toxicology, and epidemiology.

> Learn more about Ramboll's PFAS services

Want to know more?

Elizabeth Krol
Principal
+1 781 820 6897
Eric S. Wood
Principal
+1 978-449-0343

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