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The Due Diligence Implications of CERCLA Hazardous Substances Designation of PFOA and PFOS

08 Jul 2024 11:08 AM | Anonymous member (Administrator)
by Rick Shoyer, LSRP, Montrose Environmental

On April 19, 2024, the U.S. EPA classified perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA, also known as Superfund. This designation directly affects the scope of the ASTM E1527-21 Standard Phase I Environmental Site Assessment (ESA), mandating that PFOA and PFAS be included.  Here are some key considerations in developing your due diligence strategy: 

Know Where to Research Reportable Incidents 

Entities must promptly report any new or ongoing releases of PFOA and PFOS exceeding 1 pound. Past releases require reporting only if they remain active. Knowing where to research the reportable incidents can aid in assessing risk. 

Identify PFAS Uses

Identifying historical uses of PFOA and PFOS, and other PFAS, presents challenges due to their varied names and structures not always listed on Safety Data Sheets.  Conduct thorough reviews of historical records, permits, and facility documentation to uncover past fluorochemical use. Interviews with long-term employees and visual inspections can provide additional insights.

Consider Consequences of Phase II Diligence 

Before initiating Phase II investigations, assess contractual and regulatory risks, potential reporting obligations triggered by sampling, and implications for worker exposure and waste disposal.

Review the Regulatory Landscape

Familiarize yourself with TSCA requirements for reporting PFAS production, use, and disposal since 2011, and utilize EPA tools to identify nearby PFAS contamination sources.

As PFOA and PFOS become subject to heightened regulatory scrutiny, gathering and updating property information demands careful attention to new obligations and potential impacts on operations. Understanding these requirements is crucial before committing to further investigative steps.

About the Author:

Rick Shoyer has over 40 years of experience in investigating and remediating organic and inorganic substances, both in-situ and ex-situ. His current focus is on per- and polyfluoroalkyl substances (PFAS), 1,4-Dioxane, PCBs, chlorinated compounds, and hexavalent chromium. He provides technical assistance to a New York State city impacted by PFAS in its drinking water. His PFAS expertise includes surface water characterization, PFAS removal technologies like GAC and anion exchange resins, and fate and transport assessments. He has also researched alternative fluorine-free foams (FFFs) and aqueous film-forming foams (AFFFs). Mr. Shoyer chairs the Emerging Contaminants Treatment and Technology group and has presented at numerous forums. He is a Licensed Site Remediation Professional (LSRP) and N-2 Industrial Operator in New Jersey, with a Bachelor of Science in Engineering from Michigan State University. 

You can learn about Montrose's PFAS solutions here: 

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