June 2023

On June 29, 2023, EPA issued its “Framework for TSCA New Chemicals Review of PFAS Premanufacture Notices (PMNs) and Significant New Use Notices (SNUNs)”—its latest effort to stop the environmental release of per- and polyfluoroalkyl substances (PFAS). This move targets PFAS at the industry source in order to eliminate risks before PFAS enter commerce.

PFAS are of great public and governmental interest because of their widespread use in a variety of products, ability to persist in the environment, and documented adverse human health and environmental effects. This past March, PFAS received exceptional public attention when EPA proposed its first-ever national drinking water standards for six PFAS. However, new PFAS entering the marketplace present a significant challenge for EPA to evaluate. Often, there is insufficient information on the new substance in order to quantify risk and make effective decisions regarding its regulation—there are thousands of different PFAS, but data for only a small fraction are available to the broader scientific community, regulators, and the public.

On October 18, 2021, EPA issued its “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024.” This roadmap sets out EPA’s action plan for minimizing the release of PFAS into the environment. On September 6, 2022, EPA proposed to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS), two PFAS compounds, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Recently, EPA announced it was pushing back its target for this hazardous substance designation to February 2024. This designation could result in sellers being strictly liable for costs associated with onsite and offsite contamination from PFAS, regardless of whether the risk of contamination is known at the time of purchase. But doing so could raise major concerns for the real estate market, which, until recently, had turned a blind eye to PFAS related issues.
Before entering a business transaction involving real estate with potential environmental concerns related to PFAS, parties should consider the following to protect their interests.