If you’re developing in the New York or New Jersey metro area, your due diligence process just got a lot more complicated. For years, the industry treated Per- and Polyfluoroalkyl Substances (PFAS): the so-called "forever chemicals": as an "emerging contaminant" that lived in the margins of a report. You’d see them listed as a "non-scope item," meaning they weren't technically required for a standard Phase I Environmental Site Assessment (ESA) under the old ASTM rules.
That era is over.
With the shift to the ASTM E1527-21 standard and recent EPA rulings, treating PFAS as an optional add-on isn't just a technical oversight: it’s a business-killing liability. At Envicon, we’ve seen projects stalled at the finish line because a lender flagged a "clean" Phase I that ignored the PFAS signal. We don't write reports to satisfy a checklist; we write them to clear your path to a buildable site.
The "Non-Scope" Trap
Under the federal standard, a Phase I ESA is designed to satisfy "All Appropriate Inquiries" (AAI) to protect you from CERCLA liability. Historically, the scope of that search was limited to substances defined as "hazardous" under CERCLA.
Until very recently, PFAS didn't make that list.
In ASTM E1527-21, PFAS were explicitly categorized as "non-scope items." This created a dangerous loophole. Large, national consulting firms: the ones that sell reports by the thousand: often stick strictly to the "scope." If it isn't required by the ASTM template, they don't look for it. They deliver a report that says you’ve met the AAI requirement, while completely ignoring a contaminant that could cost millions to remediate.
For a developer, this is the "Non-Scope Trap." You get a report that protects your legal defense under CERCLA, but does absolutely nothing to protect your balance sheet from the reality of contaminated soil and groundwater.
The April 2024 Pivot: PFOA and PFOS are Now In-Scope
The landscape shifted significantly on April 19, 2024. The EPA officially designated two specific PFAS compounds: PFOA and PFOS: as hazardous substances under CERCLA.
What does this mean for your Phase I?
- Mandatory Inclusion: Because ASTM E1527-21 pulls its scope directly from the CERCLA list, PFOA and PFOS are no longer "optional." They must be evaluated as part of your Recognized Environmental Condition (REC) analysis.
- AAI Compliance: If your consultant delivers a Phase I today that ignores these compounds, that report may not satisfy AAI. You are potentially losing your federal liability protections before you even break ground.
- The Rest of the "Family": While PFOA and PFOS are now "in-scope," there are thousands of other PFAS compounds (like PFNA or GenX) that remain technically "non-scope." This is where the risk lives.
If your consultant is only checking the two mandatory boxes and ignoring the rest of the PFAS family, they are handing you a half-finished puzzle.
Why "Technically Non-Scope" Still Matters in NJ and NY
Regional fluency is where Envicon separates itself from the "Big-Box" firms. If you are working in New Jersey or New York, the federal CERCLA definition is only half the story.
New Jersey: The LSRP Reality
In New Jersey, the NJDEP LSRP program is significantly more aggressive than federal standards. The NJDEP has already established strict groundwater quality standards for PFOA, PFOS, and PFNA. If you have a site in Jersey City or Newark, "non-scope" is a meaningless term. If it’s in the soil or water, you are responsible for it.
New York: The OER and DEC Pressure
In New York City, the OER and NYSDEC have integrated PFAS sampling into nearly every remedial program. Whether you are in the Brownfield Cleanup Program (BCP) or dealing with an "E-Designation," you will be testing for PFAS.
An ASTM report that excludes PFAS because they aren't "hazardous substances" under federal law yet is a report written for a market that doesn't exist in the Tri-State area.
The Lender’s Perspective: Why They Care More Than the EPA
Even if you are willing to take the regulatory risk, your lender likely isn't. Major financial institutions have updated their internal risk assessments faster than the ASTM standards.
We are increasingly seeing lenders reject Phase I reports that don't include a robust PFAS evaluation. They recognize that PFAS remediation is expensive, complex, and politically sensitive. They don't want to hold a mortgage on a site that has a "forever chemical" plume migrating toward a municipal well.
"Every week of delay incurs carrying costs and reduces lender patience. A rejected submittal because of an incomplete PFAS assessment isn't just a technical error: it's a financial failure." : Jason Pancoast, CEO, Envicon Group
The Real-World Risk: What You're Actually Skipping
When a consultant "skips" PFAS, they aren't just leaving out a few lines of text. They are failing to evaluate:
- Historical Industrial Use: Metal plating, textile manufacturing, and even commercial printing often utilized PFAS.
- Fire-Fighting Foams (AFFF): If your site is near a former gas station, airport, or industrial facility that had a fire, there is a high probability of PFAS presence.
- Adjacency Risks: PFAS are highly mobile in groundwater. A "clean" site can be contaminated by a neighbor a mile away.
Envicon’s Resolution: We Don’t Sell Reports, We Sell Cleared Paths
At Envicon, we don't treat PFAS as a "non-scope" afterthought. We treat it as a fundamental part of the Site Development Playbook.
When you hire a large national firm, you get a junior staffer using a template that hasn't been updated since 2021. When you hire Envicon, you get hands-on leadership that understands the NJ/NY regulatory landscape.
Our approach to PFAS in Phase I is simple:
- Forensic History: We don't just look at EDR reports. We look at the actual manufacturing processes that happened on your site over the last 50 years.
- Direct Agency Coordination: We know the reviewers at the NYC OER and NJDEP. We know what they are looking for before they ask for it.
- Proactive Strategy: If we see a PFAS risk, we don't just flag a REC and walk away. We provide a clear path forward: estimated sampling costs, potential remedial strategies, and a timeline for closure.
Summary: The Takeaway for Developers
Ignoring PFAS in your Phase I because it’s "technically non-scope" is like ignoring a foundation crack because it’s not in the architectural rendering. It’s there, it’s a problem, and it will cost more to fix later.
- PFOA and PFOS are now mandatory in Phase I ESAs.
- Lenders and State Regulators (NJDEP/NYSDEC) expect a full evaluation of all PFAS compounds, not just the mandatory ones.
- Big-Box firms often hide behind ASTM templates to avoid the technical work of a real assessment.
- Envicon provides certainty. We leverage 20 years of local experience and real-time project dashboards to ensure your due diligence holds up under scrutiny.
Don't let an "emerging contaminant" stall your project. Let's get the work done right the first time.
Are you sitting on a potential PFAS liability?
Contact Envicon Group today to review your existing Phase I or to scope your next acquisition with precision.
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