PFAS is a shorthand reference for a large group of man-made substances (Per- and Polyfluoroalkyl Substances) often called “forever chemicals” because they do not break down readily in nature. Buyers and sellers of real property should be aware of recent developments that could impose unexpected costs for transactions involving properties having these chemicals in their soil or groundwater (even if they originated off-site).
Many PFAS chemicals exhibit oil, water, temperature, and fire resistance, as well as electrical insulating properties. Due to these properties, they have been widely used since their creation in the 1940s. Though frequently associated with firefighting foam, they have also been commonly used in electronics, food packaging, nonstick cookware, and personal care products.
This widespread use and persistence in the environment mean they are showing up with increasing frequency in soil and groundwater across the country. A high-profile example in Colorado is the contamination of drinking water wells for thousands of residents near Colorado Springs. Research has linked PFAS exposure to significant health issues.
Not surprisingly, the situation has caught the attention of state and federal regulators. Colorado has recently taken steps to control the use and discharge of certain PFAS. More importantly, the U.S. Environmental Protection Agency has announced plans to designate certain PFAS as “hazardous substances” subject to its Superfund program. Such developments have far-reaching implications for liability, cleanup, and reporting requirements related to these chemicals.
Purchasers of property have long protected themselves from Superfund liability and other costly surprises through property evaluations commonly known as Phase I Environmental Site Assessments. PFAS are not currently addressed by a Phase I unless specifically requested. Prospective purchasers should evaluate the merits of including PFAS as a non-scope component of the Phase I to protect against future liability, and to otherwise guard against unexpected delays and costs on projects planned for property later found to contain regulated PFAS.
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