By: Raghava Dasika
“Emerging contaminants” represent a challenge in the course of transaction due diligence assessment of residual liabilities. The increasing awareness of the presence of previously untargeted classes of chemicals that are now of suspected potential environmental concern, adds to the “reasonableness” by which these chemicals should be anticipated and highlighted (if of concern) during the course of due diligence enquiry.
For example, in recent years the PFAS (per and poly-fluorinated alkyl substances) group of chemicals have been identified as an emerging contaminant. Much of the focus on PFAS has been in relation to their use in firefighting foams, and in the handling and exposure to these materials. However, due to their physical properties, including heat and chemical resistance, as well as associated stability, PFAS have been included in a large variety of other uses: carpet coatings (stain resistance), food packaging, textiles, and shampoos. As a result of this widespread use, PFAS residue can be widespread and persistent in the environment.
Of the PFAS group of chemicals, PFOA (perfluorooctanoic acid) has been found to be associated with some cancers in animal studies. While there is ongoing investigation of the potential for risk to humans, regulatory agencies around the world have adopted a precautionary approach in their management of PFAS, including their expectations of site owners to investigate for the presence of these chemicals on their sites. Regulatory agencies have also been developing and proposing remedial investigation goals for these chemicals. In Australia, EPA accredited Environmental Auditors also now have an expectation that these risks be addressed before signing off on sites.
The implications of emerging contaminants being suspected of being present at any given site can be many fold, but need not always be material – provided that a reasonable and appropriate level of investigation and assessment of risk is undertaken as part of any due diligence investigation.