While the federal government and states (including California) are working on establishing standards and how to manage the toxic chemicals known as PFAS (as defined below), certain states and banks are requiring testing for PFAS to approve no-further-action (NFA) determinations or to underwrite loans. PFAS do not easily fit within standard definitions of hazardous substances used in today’s agreements. Thus, if you want to ensure you and your successors are released for PFAS which later environmental testing may reveal, ensure such is specifically listed in your releases.

What Are PFAS

As depicted in the recent major-release movie Dark Waters, PFAS are a group of very stable man-made chemicals that are both toxic and ubiquitous. They are long-chain chemicals which means they do not naturally degrade easily. As an example, here is PFOA:

For further information on PFAS generally, please see the federal Environmental Protection Agency’s PFAS website: https://www.epa.gov/pfas/basic-information-pfas

Those with Property Interests Can Take Action Now

The following language should be added to all agreements or related documents where you are getting a release related to property, wherever hazardous substances are defined (best to add at the very end of what is often a laundry-list of materials):

… hazardous substances include … “per- and polyfluoroalkyl substances (PFAS) which are a group of stable man-made chemicals that allow them to repel both water and oil including perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) ….”

The time is now to add this additional language to property-related releases to help better ensure that there is no gap for PFAS. When you get a release, you don’t want anything omitted that might allow someone in the future to make a belated claim.

The above Alert is for general information only and does not constitute legal advice. If you have specific questions or concerns about the subject of this Alert, you should consult qualified legal counsel. If you would like to speak with the authors their backgrounds and contact information are below.