Environment Matters S2:E2 – Environmental Impact and Regulation of PFAS

Victoria Barnes, Senior Associate

Thanks, Mike, glad to join you today.

Helena Sewell, Solicitor

Hi Mike, great to be back.

Michael

Thank you both. So in today’s episode, we’ll be exploring the environmental impacts and regulation of per- and polyfluoroalkyl substances, better known as PFAS. PFAS is the term used for a large group of manufactured chemicals which have particular properties, broadly meaning that they are very persistent and bio accumulative because they’re very difficult to break down. The strength of these chemicals is that they have a wide range of uses, but the weakness is they cause environmental and potential health issues from the fact that they persist in the environment.

Now, PFAS is a very big topic amongst environmental lawyers at the moment. Personally, I’ve been aware of it as a topic since about 2012 when I did some litigation and was aware that as a topic it would become much more prevalent. But we are seeing, as we’ll explore in this podcast, regulation developing around the world, litigation also developing, and the impact of it in a wide range of areas. So what we’re hoping to do in this podcast is give a very brief overview of some of the legal issues that arise from PFAS, and we will be releasing a more detailed article at the same time to accompany it.

So I think it’s fair to say, as I mentioned there, that although PFAS has been around since the 60s and 70s, the topic is attracting much more attention at the moment, isn’t it?

Helena

Yes, PFAS is definitely receiving a lot of attention from the public and regulators at the moment. I think this is in part due to some high-profile cases emerging, which I think we’ll come on to discuss in this podcast. These cases put pressure on regulators such as the Environment Agency to do more to protect the public and the environment from these kinds of issues.

Victoria

Yeah, I completely agree with that as well. Plus, I think there’s also a much broader awareness of these kinds of issues among the general public at the moment. We’ve seen a similar increase in awareness in respect of microplastics, and I think people are generally more conscious about what they’re putting in their bodies and what’s being released into the environment. Again, this sort of builds the pressure on regulators to do something about these issues.

Michael

Yeah, I think that’s right as well. So, I mean, I think probably the starting point for thinking about this topic then is to look at the regulation on PFAS in the UK. It’s a pretty fragmented regulatory landscape, isn’t it?

Helena

Yeah, that’s right. In the UK, we don’t have a single set of regulations which regulate and restrict the use of PFAS. Currently, PFAS is primarily regulated under UK REACH, which is the UK’s post-Brexit equivalent of the EU’s Registration, Evaluation, Authorization, and Restriction of Chemicals regime. However, there are hundreds of other types of PFAS which are currently not regulated at all under UK REACH.

Michael

Thanks, Helena, that’s really helpful. I think it’s probably fair to say that this is an area that the HSE is looking at in more detail at the moment, isn’t it?

Helena

Yeah, absolutely. In April 2023, the HSE published recommendations to include the preparation of background dossiers to support the UK REACH restrictions of PFAS for the use and disposal of aqueous film-forming foams, so firefighting foams where non-PFAS alternatives are available. PFAS was included with the HSE’s rolling action plan for UK REACH as well, with the intention of prioritizing its evaluation during 2024. However, we’re yet to see any outcomes from that evaluation.

Michael

Thanks for that, Helena. And besides REACH, are there any other regimes in the UK currently which regulate PFAS?

Victoria

Well, the other regime to be aware of is the Persistent Organic Pollutant or POPS regime. POPs are a group of chemicals that are toxic, persistent in the environment, and may accumulate in food and human tissue. In the UK, the GB POPs regulation prohibits the import of certain intentionally produced POPs and sets limits for the concentration of POPs in products. Currently, there are three types of PFAS which are covered by our POPS regime, and more may be added in the future as well.

Michael

That’s great, thanks Victoria. So that sort of sets out the primary regulatory background to PFAS, but I think what we’re going to do for the rest of this episode is touch on four key areas of environmental law where there’s been some important developments in relation to PFAS. And those four areas are how it impacts on legislation in relation to water, look at issues in relation to land, and then litigation and regulation in relation to products more generally.

So to kick us off on that, I’m going to start with the regulation around water. Water’s quite interesting in this respect because the chemicals are so persistent, they tend to end up in the water. So that is one of the key areas that are considered as part of PFAS regulation. But interestingly, it’s worth starting with the fact that in the UK currently there’s no legal limits for the amount of PFAS in drinking water. Now, that’s going to change for Northern Ireland in 2026 because that’s still covered by the EU regime, which is moving ahead of the UK regime. But in the UK, as I say, or England, Wales, and Scotland, there aren’t any limits currently.

What has happened in England and Wales recently is that the DWI has issued guidance to water companies to monitor PFAS in the drinking water. In particular, water companies are expected to produce a risk assessment for the presence of PFAS in the drinking water and carry out sampling, monitoring, and reporting of their activities. The guidance document also suggests that it should be reasonably practicable to achieve concentrations of 0.1 micrograms per litre in drinking water and that water companies should work towards this. So while that’s technically guidance, water and sewage companies in England and Wales have given undertakings to the DWI, the Drinking Water Inspectorate, to carry out these activities. They’ve also agreed to design a basic mitigation plan by 31st of March 2030 for sites with the highest concentrations of PFAS.

So Mike, we don’t currently have any legal limit on PFAS in water, but is that sort of coming down the line in the UK or for England, Wales, and Scotland?

Helena

Yes, you’re right. It is interesting that there are no legal guidelines, and that’s partly led to a private members’ bill which was introduced to Parliament in late 2024. If that was enacted, it would require the DWI to issue guidance to water undertakers and water supply licensees in England and Wales about safe limits of PFAS within drinking water, monitoring and reporting of PFAS within water supplies, including in sewage, and carrying out risk assessments. The bill’s second reading is expected to take place in late April 2025. However, as you might have gleaned from what I’ve said before, that’s pretty similar to what the DWI in England and Wales is already doing and stops short of requiring the DWI to set any legal limits on PFAS. The requirement is only for the DWI to issue guidance on safe limits.

Michael

So that’s the position in relation to water quality and the supply of water quality. Helen, is there anything happening in relation to wastewater?

Helena

Yes, so I think continuing the theme really, there is currently no overarching statutory obligation in England and Wales on water and sewage undertakers to remove PFAS from wastewater. Again, the EU is ahead of us in this regard. On the 1st of January 2025, the recast Urban Wastewater Treatment Directive introduced a polluter pays principle in respect of the presence of heavy metals, microplastics, micropollutants, and other chemicals such as PFAS in wastewater. So whilst the EU is ahead of us, Philip Duffy, the chief executive of the Environment Agency, has reportedly suggested that the UK should consider a similar approach. So watch this space, I think.

Michael

So that was the first of our areas to look at in relation to water. Moving on to the second area, which is in relation to how PFAS impacts on issues in relation to land. Victoria, where are we on that?

Victoria

So much like our water systems, particularly drinking water quality, the contamination of land and soil by PFAS is also a widespread issue and can lead to significant human health and environmental impacts. For example, the soil in hotspot areas can result in leaching into groundwater, contaminating nearby surface water, and ultimately affecting our drinking water supplies. Also, when passing through soil and water bodies, PFAS can be highly detrimental to ecosystems, including toxic effects on aquatic animal species and a reduction in soil biodiversity.

As for how widespread this contamination issue is in the UK, a recently disclosed report prepared for the Environment Agency estimated that there could be up to 10,000 high-risk PFAS contaminated sites and the cost of remediating those sites could be up to £121 billion. Now, these are estimates and they’re based on modelling, but these kinds of figures give you a sense of the scale of the potential problem we’ve got with contaminated land. We know that PFAS contaminated soils, like water, are notoriously difficult to treat.

Michael

Thanks, Victoria. So those figures are pretty eye-watering and obviously there’s a significant cost for potentially cleaning up all of those sites. So who’s going to be picking up the tab for that cleanup?

Victoria

Well, that’s a very good question, Mike, and I think this is where we’re seeing developments at the moment in terms of land. As the science has developed as to the human and environmental risks potentially associated with PFAS and awareness has grown at the regulatory level and increasingly amongst the public and society generally, we’re seeing two key developments as I see it anyway. The first is that PFAS is becoming an emerging risk to development and redevelopment of land. Now, issues around contamination have traditionally been managed and cleaned up through the planning process and the redevelopment of land, but there is evidence that the increased scrutiny of PFAS coupled with regulatory uncertainty around it is impacting development projects, leading not only to delay but potentially to projects never getting off the ground. With PFAS and its remediation becoming an increasingly challenging issue for development and redevelopment, we’re potentially leading to undevelopable land in some cases.

This kind of leads us to the second development we’re seeing, which is the potential for legal proceedings in relation to that contaminated land. Now, we’re discussing land remediation here, and I know we’re going to be discussing other types of legal proceedings and litigation shortly. The one I want to focus on for the moment is a resurgence of contaminated land regime proceedings. The contaminated land regime is the regime that deals with historically contaminated land which causes an unacceptable level of risk. Under this regime, local authorities must identify contaminated land, and the relevant authorities, either local authority or it could include the Environment Agency, are then required to ensure that those who are responsible for the contamination remediate it. What this means is where PFAS contamination is identified, which is already starting to happen, I mentioned that report when they’re identifying these high-risk areas or hotspots, that identified contamination may become subject to the contaminated land regime, which could lead to either former owners of the sites as the polluters or existing owners shouldering the burden and cost of remediation. Mike, this is not just a hypothetical possibility. We’re already seeing local authorities launching investigations under the contaminated land regime. For example, in July last year, the Wyre Council launched an investigation to consider historic contamination to soil in relation to a site in Lancashire which is owned by AGC Chemicals. So we’re already starting to see that potential avenue to get sites cleaned up and those owning the land or former owners potentially footing the bill.

Michael

Yeah, thanks for that. I mean, it would seem to me that the contaminated land regime is exactly the regime for dealing with these issues of historic contamination, and that’s sort of what it was enacted to do. So I’m not surprised that we’re starting to see some of these investigations coming through.

So I mentioned at the start that PFAS is found in a multitude of different types of products, and obviously one of the areas therefore that is being regulated is in relation to products and PFAS in them. Helena, sort of turning over to you, how is that being tackled on a regulatory basis?

Helena

Yeah, absolutely. As we discussed earlier, UK chemicals regulators are lagging behind their EU counterparts. The European Chemicals Agency, or ECHA, is currently investigating the effects of PFAS following a motion by five countries to implement a PFAS ban on certain products in the EU. So ECHA is considering products by sector, and in each case, it’s considering whether to implement a full ban, a partial ban with time-limited derogations, or the imposition of conditions to regulate the continued use of PFAS. The evaluations are being carried out by ECHA’s scientific committees, and we won’t know what the conclusions on each topic are until that wider evaluation process has finished, and it’s not yet known when that will be. But it’s definitely something to keep an eye on, particularly because the new Labour government has hinted at a preference for closer alignment with EU chemicals regulation. Therefore, ECHA’s final decision may well indicate the course that our own regulator, the HSE, will eventually follow.

Michael

Now, that’s really helpful. It will be interesting to see the result of that final evaluation when it comes through in due course. Are any other countries pushing to regulate PFAS in products in the meantime?

Helena

Yes, they are. Recently, France introduced a ban on PFAS in cosmetics, clothing, and ski wax, and a similar ban in relation to consumer clothing and footwear will come into place in Denmark from 2026. They’ve actually already banned PFAS in paper and cardboard food packaging. Belgium and the Netherlands are also considering certain prohibitions. More widely, Canada is developing a strategy for restricting PFAS and has announced that it intends to designate the entire class of PFAS, which is a group of over 10,000 chemicals, as toxic under Canadian law. So lots of movement by regulators in various different countries.

Michael

Yes, quite a lot going on there. Can we say the same for the UK?

Helena

Well, there are indications that UK regulators are starting to pay more attention to PFAS, but progress is quite slow. On Friday, the 21st of March, the HSE released its rolling action plan for 2024 to 26 and its work program for 2024 to 25 in respect of UK REACH. The rolling action plan indicates that the HSE hasn’t decided what its priorities for 2024 or 2025 will be yet. That may suggest their review of PFAS is ongoing, but it’s quite difficult to tell. The HSE will have to decide its priorities for 2025 and 2026 by May, so I think it’s kind of watch this space in that regard. But I think of more interest really is the REACH work program which was published, and that sets out objectives for the HSE. Interestingly, it suggests that the HSE will consider a restriction on the manufacture and placing on the market of consumer articles from which PFAS are likely to be released into air, water, or soil, or directly transferred to humans. This is really quite broad, and you could imagine it could cover any number of products from cosmetics and clothing through to products like aerosols. Whilst this is unlikely to lead to any immediate changes, it certainly suggests that we will be following the trajectory of our EU counterparts in due course.

Michael

Thanks. Yeah, and it’s worth saying, isn’t it, that we’re still awaiting the chemical strategy from the government which was originally promised in 2018, and so that could well deal with certain issues in relation to PFAS.

So then moving on to the last of our four topics, which is looking at claims in relation to PFAS. We touched a little bit earlier on about contaminated land and how that can have an impact in relation to PFAS matters. But Victoria, just turning to other types of litigation, and we know, for example, that successful challenges have been brought in the US against chemicals companies. Are we seeing anything similar in the UK, or are we likely to?

Victoria

So there are other types of claims and legal avenues that could be available to litigants to seek redress for PFAS contamination and public health and environmental harms, although not without hurdles. I think we are some ways away from seeing the US-type litigation replicated here, but there are two potential areas where we could see litigation develop, in my view. The first avenue potentially available to prospective litigants concerned about the risks posed by the use and discharge of forever chemicals, for example, is a claim in statutory nuisance. The statutory nuisance legislation in the UK is designed to provide a kind of summary procedure for the remedy of an array of unacceptable states of affairs, most of which put at risk human health or harm the amenity of neighbours. So a person in the UK whose health has been injured or is likely to be injured by, for example, a discharge containing PFAS could potentially bring a claim in statutory nuisance against the company that was discharging that PFAS as the company responsible for causing the statutory nuisance. In addition, councils have obligations to investigate complaints about issues that could be a statutory nuisance, so that’s certainly an area to watch.

Second, PFAS can also give rise to civil liability, for example, via claims for nuisance or negligence, both of which can apply in the context of soil and groundwater contamination. There was a significant development last year in the field of private nuisance as a result of the Supreme Court’s decision in the Manchester Ship litigation that concerned discharges from a water undertaker and wasn’t about PFAS, but it has potentially opened up this field of private nuisance.

Michael

Thank you for that. So there are a couple of areas where we could see potential for civil claims arising. Just going back to the point that I made earlier about US claims, what’s the reason why we might not see the same level of claims in the UK as there have been in the US?