PFAS in soils: considerations for landowners and developers

PFAS are hardly out of the news at the moment and awareness of PFAS risks is growing. In the UK, the Environmental Audit Committee (EAC) has launched an inquiry into whether enough is being done to address the risks of PFAS, which will include consideration of whether the current regulatory regime is fit for purpose.  A report for the Environment Agency has identified up to 10,000 “high risk” PFAS contaminated sites in England. In this article, we look at PFAS impacts in soils and the associated legal risks to landowners, developers and lenders and consider the practical steps that can be taken to characterise and manage these risks.

What are PFAS?

PFAS (per- and polyfluoroalkyl substances) are a large group of synthetic chemicals used in many industries for their ability to repel water, oil, and stains. Often referred to as "forever chemicals" because they can persist in the environment for a long time, they are found in many everyday products, such as non-stick cookware, water-repellent clothing, stain-resistant fabrics, and firefighting foams.

They are a large group of chemicals with a range of characteristics but their widespread use and persistence, as well as the known toxicity of some PFAS chemicals, have raised concerns about potential health effects and environmental impacts.

How do PFAS get into soils?

PFAS are man-made substances, so their presence in soils is linked to the manufacture, use or disposal of PFAS chemicals and their associated products. Typical point sources include chemicals and electronics manufacturing, aerospace and defence manufacturing sites, electroplating, leather processing, paper production and textile finishing, landfills and sites where firefighting foams have been used (e.g. airports/military sites and firefighting training sites). High levels of PFAS have also been found in sewage sludge, which can then be spread on land as agricultural fertiliser. Diffuse PFAS soil pollution also occurs from deposition from air, irrigation, soil additives and certain pesticides. Low level PFAS presence in soils is very widespread and perhaps ubiquitous.

What risks are associated with PFAS in soils?

In short, it depends: different PFAS profiles will present different risks and this is still an area of active research, given the large numbers, and range, of PFAS chemicals. PFAS have variable toxicity traits, and their behaviours in soil vary too. Some are highly mobile, travelling tens of kilometres, and others will generally remain close to their original source location and, as with many contaminants, transport often depends on the nature of the ground conditions at that location. PFAS in soils also present a risk to surface waters and groundwater, which in the UK is widely used as a source of drinking water, and remediation of PFAS in water can be difficult and costly.

The risks associated with contamination in soils are generally well understood by the market. However, the regulation of PFAS in soils and the understanding of the level of impact that PFAS have on human health and the environment is still in its early stages. There is a current lack of formal guidance in the UK for acceptable levels of PFAS in soils and, though other jurisdictions do have some guidance, the picture is still evolving rapidly.  The EAC’s inquiry will compare the UK’s approach to other jurisdictions including the European Union and the United States of America.

Are there PFAS in soils on my site?

Historic uses of your site may indicate a greater risk of PFAS being present at high levels, noting that previous studies, site investigations and site clean-ups may not have considered this risk. Also, inconsistent naming conventions may mean some site owners or occupiers are unaware that substances they have used contained PFAS. Environmental consultants can assist with the characterisation of these risks, but this is not straightforward for many reasons. Not least, effective testing is complex and can be costly.  

What are the legal implications of PFAS presence in soils?

The legal risks of significant PFAS contamination at your property are the same as for any significant land contamination. There would be the possibility of regulatory action under the contaminated land regime or other statutory regimes (such as environmental permitting). Also, if there are impacts on other land or individuals, there is the possibility of civil actions from those affected, which may include water providers.

This is in the context of policy pressures to prioritise development on brownfield land and government drivers to rapidly increase residential development.  Also, although action on significantly contaminated land under the contaminated land regime has been at a virtual standstill for some time due to lack of funding, the Environment Agency is currently taking proactive action to identify and gather data on “high risk” PFAS sites. Consequently, such sites will be under scrutiny, with potential liability risks to former and current owners, occupiers and operators. PFAS are also a priority area in UK REACH (chemical regulation) legislation, all pointing to the development of increased regulation of PFAS in the near future.

How can PFAS presence in soils affect transactions and development?

This period of rapid change and uncertainty can have impacts on land transactions and development projects. When considering land transactions, many properties will not have data on the likely presence (or absence) of PFAS on the site, which may affect price. Further, insurers are increasingly carving out PFAS liabilities from cover, or at the very least significantly increasing the premium for such coverage, so this possible solution may be unavailable or unviable in many cases.

For development, there is anecdotal evidence that developers are being asked by planning authorities to re-run site investigations to take account of PFAS, leading to delays, and there is variability in the standards expected by regulators. PFAS remedial technologies are also still in the relatively early stages of development. This can add uncertainty about costs and effectiveness of proposed solutions, alongside the difficulty in setting acceptable remediation targets to “future proof” any remediation.

Areas of uncertainty, such as those outlined above will also affect risks to lenders and the availability of funding for projects.

How can the risk be managed?

This will depend on the circumstances, but you should begin by gathering available information on the site and get early advice on the legal risks in your proposed project.

Overall, sellers will need to consider suitable strategies to manage PFAS implications and uncertainties and buyers will need careful advice on appropriate due diligence and risk transfer drafting in purchase contracts.  Where relevant, we can advise you on appropriate appointment of environmental consultants to maximise the value of their work.

In a development project, care must be taken to reflect on how risk will be allocated, not just in relation to the costs of dealing with unexpected PFAS contamination but also the possibility of new regulatory standards being introduced during the project which could affect a range of variables from materials costs and remediation techniques through to waste costs. Well-planned, early engagement with regulators is often key.

Comment

This is a rapidly evolving area and until impacts and regulation are clearer, it is an area of enhanced risk. It is therefore important to take proactive steps to manage the uncertainty and mitigate the associated risk and to future proof solutions. CMS will be monitoring developments and will provide future updates. For more information, please contact one of the following local CMS experts or your usual contact at CMS.