PFAS pollution: Could water contamination claims be the UK’s next big litigation risk?

Introduction

Insurers in the UK are spending a lot of time thinking about PFAS.

Much of the time, the thinking is around the likelihood of personal injury claims, pondering questions like: will claimants ever be able to link their illness to an identifiable PFAS exposure from an identifiable defendant? And what did potential defendants know about PFAS risks over the years, or at least should have known?  

For the moment, insurers will see that there are significant roadblocks for personal injury claimants in the UK. Sensible precautions do of course need to be taken and preparations made, but against a backdrop that there is much that claimants will have to work on and get right before large numbers of personal injury claims start landing.

Personal injury claims are not the only type of PFAS-related claim.  PFAS are soluble in water and the proliferation of PFAS in the environment from the manufacture, use and subsequent disposal of PFAS-containing products has resulted in a lot of polluted surface water and groundwater.  

In the UK, PFAS claims can in principle be couched around the fact of water pollution, or the threat of water pollution. There is no need to show that people have actually been injured by drinking or coming into contact with the contaminated water, or that certain people might be so injured.

It is easiest to illustrate these using cases from the past where pollution of water by a chemical, rather than personal injury due to exposure to a chemical, has resulted in a claim. The UK is no stranger to claims in connection with pollution in water and there is the possibility of both civil claims in tort and regulatory cleanup actions under various regimes.

Water pollution claims in tort

The 1993 claim of Cambridge Water Company v Eastern Counties Leather Plc is a good example of a water pollution claim in tort. Spills of perchloroethane (a solvent) (“PCE”) at the defendant’s facility sank into the ground and entered groundwater aquifers. There it gradually dissolved and migrated to a point about two kilometers distant where the claimant had a drinking water extraction borehole. The claimant had to stop using the borehole when the PCE levels meant that the water was not “wholesome”, in particular because it exceeded the applicable maximum concentration values for PCE that had been introduced in the 1980s. The water could not lawfully be supplied as drinking water.

The claimant’s experts traced the source of the PCE back to the defendant’s property. The claimant brought a claim in negligence, nuisance and Rylands v Fletcher for the costs of relocating its borehole.

The claimant lost the case, essentially because the type of damage (i.e. the pollution of groundwater) had not been reasonably foreseeable to the defendant in the period to the mid-1970s when the spills were taking place. In addition, the PCE that had escaped and was still gradually dissolving in the aquifer was now outside the defendant’s control.  

But if impact to the groundwater had been foreseeable (and if the defendant’s activities had been carried out in more modern circumstances it almost certainly would be), and if the escaped pollutants could be retrieved or otherwise controlled, then a claim in tort could be successful. There seemed to be no question that pollution of water to a concentration that meant that it could not be lawfully utilised by the defendant in the water supply network was sufficient to make a claim in tort possible, without any need for actual or possible personal injury.  

Extrapolating from this case, tort claims by water companies or indeed other water abstractors for PFAS pollution could well be in prospect.

Water pollution cleanup actions

The cleanup ordered of Redland Minerals Limited ("Redland") and Crest Nicholson Residential plc ("Crest") in connection with a housing estate in Sandridge, Hertfordshire is a good example of a cleanup action triggered by water pollution under the Contaminated Land Regime in Part 2A of the Environmental Protection Act 1990.

From 1955-1980, the site was used as a chemical works by Redland’s predecessors.  Bromate and bromide entered the soil and gradually made their way into the underlying aquifer. Crest purchased the site from Redland in 1983, developed houses on the site and sold them.

Over the course of time, the bromate and bromide that was seeping into the underlying chalk aquifer led to closure of a number of water company abstraction boreholes in the area.  Regulators decided that the site was “contaminated land” under Part 2A owing to the “pollutant linkage” between the contaminants and the receiving water. They identified Crest and Redland as “Appropriate Persons” liable for cleanup. No personal injury was alleged.  The cleanup was triggered on the basis that contamination of the aquifer had reached an unacceptable level, particularly at the point where it was being abstracted.  

Comment

These cases illustrate that PFAS water pollution can trigger tort and cleanup claims even in the absence of any suggestion of it having caused personal injury. 

The risk of water pollution claims in the UK would increase if the maximum concentration limits were to be placed on PFAS in drinking water in addition to the requirement that it be “wholesome”, and the levels at which PFAS is permitted to be present in water in the general environment are similarly defined. These things have not happened yet but may well do in the short to medium term.    

PFAS litigation in the US is far more advanced than in the UK. It is interesting to note that the headline multi-billion dollar settlements entered into there by DuPont, 3M and Chemours in recent months have been in respect of water pollution impacts, with municipalities (responsible for drinking water supply) on the other side. There seems every possibility that, if PFAS litigation traction in the UK, water pollution cases will be the starting point.