EAC publishes PFAS report - a steer in the right direction for the UK Government?

The long-awaited PFAS action plan published in February (available here) was a positive step but lacked clear direction. Fortunately, the Environmental Audit Committee’s (“EAC”) “Addressing the Risk from PFAS” Report (available here) looks set to help the Government on its way. 

Below we examine the Report’s recommendations and how they seek to address many of the deficiencies of the current approach. 

The need for action (now)

The EAC shared the concern of many commentators that the evidence gathering phase of the action plan is far too lengthy. Specifically, the report highlights the need to accelerate reform of UK REACH at pace through legislation to half the statutory maximum assessment timescales and bringing forward alignment with the EU and other “trusted jurisdictions” to March 2027. The current target date is over 2 years away, a bleak prospect considering the extent to which the UK is already lagging behind others. 

The EAC questions whether this approach accords with the Government’s Environmental Principles Policy Statement as waiting for the full picture to emerge is not characteristic of the precautionary principle. It recommends that the UK provides a synthesis report of international best practice within 6 months. This is a useful intermediate step to allow the Government to seek out robust evidence for next steps, but to make it clear this needs to happen quickly. 

Beyond the human health imperative, the commercial implications of this divergence are severe. There are trade barriers due to the alignment of Northern Ireland with the EU, and the UK is at risk of the dumping of PFAS products into our markets as there will be nowhere else for them to go. 

In regard to what alignment would look like, the EAC recommends that the UK adopts the EU’s restriction on PFAS for non-essential uses, with the introduction of a phased restriction from 2027. This appears a better option than the “substance by substance” approach, as there is a real risk of the UK entering into a game of whack-a-mole whereby for each substance banned, a more harmful alternative pops up.

Polluter pays- giving enforcement teeth

A focus on regulation to tackle PFAS is futile without effective enforcement. The Action Plan acknowledges the importance of the Polluter Pays Principle but does not establish how this will be implemented in practice. 

The EAC cite studies which show significant public support for a tax on PFAS manufacturers to generate funds for remediation. Further, they draw attention to the current lack of transparency as to the existence of PFAS in the supply chains and encourage the imposition of disclosure obligations. In respect of the latter, whilst this would be useful, it does raise an interesting question about the balance between the need for transparency, and the increasing number of disclosure obligations companies are faced with. If the Government is to move forward with this recommendation, a thorough analysis of the companies which need to be captured by such obligations would be required.

There is also the matter of equipping the EA and/or local authorities to enforce any new legislation. As we have seen with the Contaminated Land Regime, enforcement bodies are underfunded and under-resourced. Whilst the EAC recognises the need for upskilling within the EA, the imperative has to be channelling funds into these bodies. The ripple effect of non-enforcement of contamination is felt heavily in the planning process, where applicants for planning permission foot the bill for remediation. From a policy perspective, this should be a priority for the Government as there is a genuine possibility that PFAS on sites could halt progression with the Government’s homebuilding targets. 

Identifying what remediation looks

The EAC highlights that there isn’t really much clarity on which PFAS remediation and destruction technologies are appropriate and the extent to which we will see investment in these technologies. The Government is encouraged to publish approved remediation methods and determine if incineration capacity in the UK is sufficient to deal with the extent of PFAS out there. There are many great minds innovating in this space, and the Government should do its bit to ensure we are best equipped going forward. 

Clearer consumer labelling

As concern around PFAS grows, the EAC remarked on the increasing use of “PFAS free” labelling on products. However, as this is not underpinned by any regulation setting a labelling standards, the consumer is left unable to make informed choices. The EAC recommends the introduction of standardised labelling led by Defra working with the FSA and OPPS as an interim measure to take effect prior to a restriction on non-essential uses. It is encouraging to see the EAC take the need for urgent action seriously, however given the scale of such an enterprise, perhaps the Government’s resources are best placed with bringing restrictions forward.

Concluding thoughts

Whilst the Government was commended for publishing its Action Plan, its contents were met with dismay. It laid bare the uphill battle on our hands and perhaps indicated there was still uncertainty over our direction, a luxury we don’t appear to have. The EAC report has set out clear recommendations, with an encouraging focus on the short term actions the Government should take to meet overarching goals. Whilst we consider that some of the recommendations are perhaps overly ambitious in scale, it is hoped that as many as possible are progressed in the near future.