PFAS Regulation: What’s the impact on development projects?

As a partner in Irwin Mitchell’s environment law team, I was recently interviewed by Tess Colley from The ENDS Report in relation to the challenges that the development sector is currently facing due to uncertainty over PFAS regulation. 

What are PFAS chemicals?

Before I do this however, it's probably worth explaining what they are.

PFAS chemicals are man-made per-and polyfluoralkyl substances (PFAS) have been widely used since the 1930s in firefighting foams and as water and grease repellents in consumer applications and industrial processes.

PFAS chemicals have unique properties and are stable under intense heat. They are slow to degrade and have greater mobility and persistence in the environment.

Originally associated with fire training grounds, airports and military facilities, legacy PFAS contamination has been identified across a wide range of land uses - chemical and manufacturing sites, textiles, leather, carpets, packaging, landfills, wastewater treatment plants and land spread with sewage sludge or biosolids. 

In my discussions with The Ends Report, I explained that the traditional environmental solutions for development sites often don’t work when PFAS is discovered.

"You’ve got a messy site, what do you do? A) you clean it up and B) you get insurance for offsite migration. With PFAS, both solutions are a challenge at the minute."

"For over a decade, many of the larger consultancies have tested for PFAS at airports and military sites around the world, but for mainstream development sites in the UK, it's only really popped up in the last couple of years."

To highlight the technical challenges, I referred to cases where “a ground investigation report could have been submitted with a planning application two years ago and then the process is stalled for all sorts of reasons”. 

”The contaminated land officer or the EA then says, ‘I see you haven't tested for it, or you've only tested for one of these types of PFAS, or you've actually missed an obvious PFAS source’. 

“So, the clean report isn't clean anymore, you must go back, and that has just wasted another six months and increased the project costs. That's the problem.”

I discussed the importance of choosing the right consultant and the role that an environmental lawyer should play, explaining that: "It's more important than ever to pick the respected consultancies, with a track record on PFAS sites."

There was then a discussion about how the insurance sector can respond. I said that "Some insurers are treating PFAS like the bubonic plague... the whole market is running scared."

I noted that some insurers are offering PFAS cover on the basis that a third-party expert legal and technical opinion is obtained by the developer or seller “to get a clearer understanding of the material risks”.

In conclusion, the discovery of PFAS at development sites certainly creates more challenges on the liability and technical front, however, in my opinion there are also opportunities for PFAS professionals and insurers to unlock these complex sites. 

To read the article in The Ends Report in full, click here