“Forever chemicals” — report spells out the “staggering” cost of remediation

They are starting to be linked to a variety of adverse health outcomes, including an increased risk of cancer, higher cholesterol levels and a decreased response to vaccines.

PFAS have been manufactured and use in a variety of commercial applications, household products and clothing for several decades because of their stain and water-resistant properties. No real restrictions have been placed on this manufacture and use historically. As a result, PFAS have escaped and are very commonly found in the environment at sites where PFAS have been manufactured or used, and at sites where PFAS-containing products end up (e.g. landfills). 

Last month, it was revealed that an unpublished report produced for Government said that as many as ten thousand sites in the UK are contaminated with PFAS posing a high risk both to human health and wildlife.

The estimated cost of cleaning up polluted land at these sites (which include chemical plants, manufacturing sites, landfills, sewage works. airfields and fire stations) is said to range from £31 billion to £121 billion.

When they escape into the environment, PFAS mix with and dissolve in water resources, with knock on implications for drinking water quality and human health. Almost three quarters of UK rivers tested recently for PFAS exceed a proposed EU standard for the chemicals.

“Growing evidence that even low dose exposure over a long period poses a health risk means that the UK should follow the Europe and United States in lowering tolerable levels of PFA’s in drinking water”.

Steps are afoot at a national and international level to start the process of restricting the manufacture and use in new products of PFAS. This will not deal with the PFAS that has already escaped into the environment, however. As indicated above, that will involve remediating the most contaminated sites (a significant and expensive task as indicated above). It will also involve monitoring and managing drinking water, and perhaps in due course compensating those said to have suffered illness as a result of PFAS contact and ingestion.

Remediation could be achieved in a number of ways over time. Placing planning permission remediation conditions on those wishing to develop contaminated land is one way. Enforcement under the UK Contaminated Land Regine under Part 2A of the Environmental Protection Act 1990 against the wide class of those who “caused or knowingly permitted” the PFAS pollution (and, where such people cannot be found, ‘innocent’ current owners) is another. 

Tort claims may also facilitate remediation, for example by allowing water companies to take steps to protect their drinking water supplies and claim the costs of doing so from polluters.   

In relation to personal injury liabilities and claims, the link between PFAS and specific illness types is still a relatively recent discovery and is yet to be fully understood. As a result, claims will face hurdles - not least in respect of breach of duty, causation and foreseeability, which are key elements in negligence claims.    

Insurers should keep a close eye on the developments and possible liabilities around PFAS. As for remediation liabilities, specialist environmental liability insurers should be the most alert. They will need in time (particularly as quantified regulatory concentration limits are introduced) to re-evaluate the risk associated with sites they already cover and think about how to approach PFAS risk when insuring sites in future. Other liability insurers will take a degree of comfort from both the “regulatory” nature of much of the remediation liability (which these policies do not generally cover) and the gradual pollution exclusion. However, until the precise ways that PFAS remediation liabilities present themselves are understood, liability insurers need to be vigilant.

As for personal injury liabilities and claims, liability insurers should be aware that although these claims look hard for claimants to bring, and may not ultimately be covered in any event, claimant lawyers will look at them very closely, not least because certain injury scenarios could lend themselves to large group actions. In other jurisdictions, notably the US, such actions are already arising.