FOREVER CHEMICALS PFAS and the development sector

Callum Ross

Callum is dual specialised, working in both the Environment and Real Estate teams. In the Real Estate team, Callum helps clients with a variety of matters in respect of their property, including acquisitions and disposals, development projects and estate management. In the Environment team, Callum works closely with real estate, agricultural and projects teams, advising on the environmental aspects of complex transactions. He uses his combined legal and scientific knowledge to understand his client’s matters and provide the most effective solutions.

Callum outlines the serious issues of ‘forever chemicals’ in the property arena. The implications for development, people and the environment, and remediation must be understood. To date, case law in the UK is scant. 

Per- and polyfluoroalkyl substances (PFAS), are emerging as a significant concern for the property development sector. These synthetic chemicals, found in a wide range of industrial and consumer products, are notorious for their persistence in the environment and potential health risks, creating a real risk of environmental liability. 

As awareness of PFAS contamination grows, developers face increasing scrutiny and regulatory challenges. The presence of PFAS in soil and groundwater can lead to costly remediation efforts, delays in project timelines, and potential legal liabilities. Understanding and mitigating the risks associated with PFAS is becoming essential for taking projects forwards. 

PFAS and health risks 

PFAS are a group of around 10,000 chemicals which were developed in the mid-20th century . They have unique properties enabling them to repel grease, heat and oil and are readily found in everyday items, from waterproof jackets and non-stick frying pans, to toilet paper and, most prolifically, firefighting foam. PFAS are known as a ‘forever chemical’ as these unique qualities means that they do not degrade over time, with the non-governmental organisation ChemTrust having described PFAS as the “most persistent synthetic chemicals to date.” 

Their persistence in the environment has led to widespread exposure, with studies in the US by the Centre for Disease Control and Prevention, highlighting that most people have detectable levels in their blood. 

The health impacts are significant, with PFAS increasingly being linked to a range of conditions, including various cancers, liver damage and fertility issues. 

It is due to this significant risk of harm that there is increasing scrutiny of PFAS from regulatory bodies, including the Environment Agency. The Environment Agency is undertaking an ongoing programme of work to understand the scale of the PFAS issue, the sites impacted, and the level of exposure to the public. However, regulation and guidance in this area is not developing quickly enough to keep up with the ever-increasing number of contaminated sites being identified. 

How the PFAS issue is impacting property 

PFAS is quickly becoming a cause for significant delay in the development sector as there is a lack of guidance by regulators for developers and their professionals to follow. Many environmental reports pre-2023 did not test for PFAS, creating further uncertainty. This has been compounded by the Environment Agency’s approach, as they are increasingly requiring projects which already have outline planning permission and ground investigation works completed to return to site for tests for contamination. As noted by a spokesperson for the Environment Agency, “further action may need to be taken to protect the water environment or human health.” 

Traditionally, these sorts of investigations have been carried out on high-risk locations such as airports and ex-military sites. However, testing requirements are increasingly being seen in mainstream development sites. The shifting regulatory mindset regarding PFAS, while necessary, is proving to stall development projects where developers are having retrospectively to go back and test for the presence of these chemicals. 

Development is also being delayed by concerns in the insurance industry. With the lack of clarification and updates to guidance, insurers are reluctant to provide cover, resulting in developers having to shoulder this risk. 

Recent case law 

In addition to a lack of guidance, there is limited case law within the UK on the subject. Due to the persistency of PFAS in the environment, and the plethora of sources contributing to contamination, it can be difficult for claimants to identify the polluter or site which has directly caused harm. That does not, however, prevent claims being made, which creates an additional complexity for developers and insurers trying to quantify the risk. 

In the US, PFAS-related litigation claims have already reached multi-billion-dollar settlements, and the US Environmental Protection Agency is looking to designate PFAS as a hazardous substance under environmental cleanup laws. 

By contrast, the UK has only just started with the first PFAS litigation case relating to a land at Bentham in North Yorkshire. The exposure of PFAS in that case is linked to local company, Angus Fire, one of the world’s leading firefighting foam manufacturers. Residents have instructed lawyers to investigate a case against Angus Fire based on the PFAS pollution found in the town, which is stated to be the worst in the UK. 

Angus Fire’s wastewater lagoons, which sit only metres from residential property, have historically contained run-off from the testing of PFAS firefighting foams. When sampled, the results showed the groundwater around the lagoon to have high concentrations of PFAS, suggesting that the contamination within the lagoon has potentially spread. 

Angus Fire claims that the lagoons have been managed to “ensure no off-site release of PFAS”, however Dr. Patrick Byrne of Liverpool John Moores University believes there is “clearly a pathway from the lagoons to the ground water.” 

We await the judgment, as this should aid the property sector in quantifying the risk involved in both purchasing and/or developing a site contaminated with PFAS. 

Remediation works 

Due to the emergence of the PFAS risk, there is also growing demand for remediation works to correct land intended for development use. 

Currently, PFAS is typically remediated by either creating a physical barrier, or by concentrating the PFAS in a defined volume of soil or water and treating this to destroy the chemicals. However, there is concern that these methods are expensive, which directly impacts project costs. 

Unfortunately, remediation techniques are also of concern as they are used to tackle specific types of PFAS chemicals, such as perfluorooctanoic acid and perfluorooctanesulfonic acid. Currently, these techniques do not completely destroy the carbon-fluorine chains, causing the molecules to degrade into different types of PFAS and therefore leaving the site further contaminated. 

Innovation has, however, recently taken off in this area, catalysed by the increasing risk of regulation and also litigation – in particular, the banning of incinerating PFAS waste in some US states and a change in EU limits of contamination in drinking water. 

An example of new developments in remediation work can be seen in the research at the University of Surrey. Researchers are trialling ultrasonic degradation. This works when PFAS molecules are put into water. The PFAS molecules, being hydrophobic, congregate around gas bubbles. These molecules are then bombarded with high-pitched sound waves, combined with the temperatures and pressures reached, to create a pocket of plasma inside the bubbles, causing PFAS to break down. 

The university has demonstrated this practice to work against some of the toughest PFAS chemicals, and hopes both to develop a larger scale practice capable of treating contaminated domestic water supplies, and to adapt this process for soils. 

Another area of development in remediation is seen at Claros Technologies, which is using UV light, combined with a chemical initiator, to break bonds within the PFAS. 

The possibility of adapting these treatment processes will be a welcome feature to the property sector, potentially enabling uneconomical sites to be remediated and taken forward for development. 

Conclusion 

As awareness of these chemicals grows, the presence of PFAS will continue to burden development sites. While the guidance currently remains limited, we advise best practice is to have an open approach with the regulator, discussing with them the intended remediation strategy and how the risk of exposure to PFAS can be mitigated. 

The Environment Agency is due to publish site profiles “to assist developers and consultants in understanding what types of PFAS may be present on development sites to help characterise potential contamination.” This introduction of PFAS specific guidance will further enable a more comprehensive strategy on identification and remediation of PFAS. 

Beyond this, there are encouraging advances in technology, demonstrating the potential for new methods of remediation to become future industry standard. 

The updated guidance and remediation advances will help mitigate the risk of PFAS in order to bring forwards contaminated sites for redevelopment.