PFAS: Emerging Threat to Environmental Risk – A Legal Perspective

While the issue has been known about for many years, particularly among environmental professionals and in other jurisdictions, PFAS has now started to emerge as one of the most significant issues in UK environmental law. 

PFAS - or per and polyfluoroalkyl substances – are a group of thousands of manufactured chemicals which are characterised by their long-chain chemical bonds.  These bonds mean that PFAS are highly resilient and resistant to breakdown. As a result, PFAS have been used in a wide range of consumer products and industrial processes, including firefighting foams, textiles, food packaging, cookware, and cosmetics. However, this very persistence has also begun to prompt concern about the potential environmental and health impacts of PFAS as a result of their bio-accumulative and potentially carcinogenic properties.  This has led to PFAS being popularly described as “forever chemicals”. 

With PFAS now in the spotlight, this article explores some key recent developments in the regulation of PFAS in the UK which businesses should be aware of, with a particular focus on four key areas: water, land, litigation and products.

Regulatory Landscape

When considering how the regulation of PFAS is likely to develop in the UK, it is crucial to understand how the current chemicals regulatory regime operates.  In the UK, chemicals are currently regulated under a patchwork of legislation – much of which is either EU-derived or flows from UK commitments made under international treaties governing the use of chemicals. 

PFAS are primarily dealt with under UK REACH, which is the post-Brexit equivalent of the EU's Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH) regime[1]. UK REACH is not PFAS-specific and requires substances to be registered with the relevant regulator (the Health and Safety Executive) before they can be placed on the market.  This is to ensure that the environmental and health effects of substances are known before they are widely used in consumer products and manufacturing.  UK REACH also sets out a process whereby ‘substances of very high concern’ are identified and eventually phased out of non-essential uses.  These include substances which are persistent, bio-accumulative and toxic or carcinogenic.  Currently, only two types of PFAS are restricted under UK REACH, whilst several others are listed as substances of very high concern and therefore may be phased out in due course. 

PFAS are also regulated under the Persistent Organic Pollutants regime. Persistent organic pollutants or “POPs” are a group of chemicals that are toxic, persist in the environment, may accumulate in food and human tissue, and are subject to long range transportation. The POPs regime was established under the Stockholm Convention on Persistent Organic Pollutants, which is the main global treaty to protect human health and the environment from POPs.[2]  The Stockholm Convention also lists POPs which are prohibited or restricted. The UK is a signatory to the Convention, and has implemented national legislation via The Persistent Organic Pollutants Regulations 2007 to restrict the import of certain intentionally produced POPs and set limits for the concentration of POPs in products.[3]  At present, only three types of PFAS are covered by the UK POPs regime. 

Whilst the UK regime broadly reflects the EU’s regulatory system, following Brexit the myriad of regulation and lack of an overarching Chemicals Strategy for managing these substances has arguably led to a disjointed approach towards regulating PFAS in the UK.[4]  In fact, the Head of the HSE has acknowledged that it is becoming increasingly difficult for Britain as a single country outside the EU to efficiently regulate chemicals”[5].

However, the regulatory landscape in relation to PFAS is changing and regulators are starting to prioritise PFAS. This is reflected in the HSE’s recently released 2024 - 2025 Work Programme, which includes potential restrictions under UK REACH in respect of the manufacture and placing on the market of consumer articles from which PFAS are likely to be released into air, water or soil, or directly transferred to humans.[6]  This has the potential to be very broad and suggests a greater regulatory focus on the widespread use of PFAS. More widely, the Environmental Audit Committee (EAC) recently launched an inquiry which “will consider whether enough is being done to address the risks of PFAS in the UK and whether research institutions and the Environment Agency are equipped to detect and monitor their impact”. It will also look at the UK regulatory landscape and compare this to the approach taken in other jurisdictions such as the EU and US.[7] 

As a result, understanding how to navigate the current legislative regime and rapidly changing regulatory approaches towards PFAS will be critical for businesses. 

Products

As noted above, many PFAS are not specifically regulated in the UK and manufacturers are currently able to use those chemicals within their products with limited restrictions.  This contrasts with the approach taken in other countries such as France, Belgium, the Netherlands and Denmark where targeted bans on specific items containing PFAS such as clothing, cosmetics and food packaging have been introduced or are contemplated. 

More widely, in the EU, the European Chemicals Agency (ECHA) is currently investigating the effects of PFAS, following a motion by five countries to implement a PFAS ban on certain products.[8] ECHA is considering products by sector and in each case is determining whether to implement a full ban, a partial ban with time-limited derogations, or the imposition of conditions to regulate the continued use of PFAS.  It is not yet known when the overall evaluation will be completed, however the evaluation is likely to continue for much of 2025.  Whilst any recommendations made by ECHA will apply to the EU only, the Government has hinted at a preference for closer alignment with EU chemicals regulation.  As a result, the outcome of ECHA’s review may well establish a course that UK regulators follow in due course. 

In practice, a ban on PFAS could necessitate a reformulation of the content of products or the manufacturing processes used to produce them.  This is likely to involve substantial costs and will have a significant impact on any businesses which directly use PFAS in their products or manufacturing processes, or where PFAS are used by their supply chain.  Therefore, it will be important for these businesses to stay apprised of any developments in this area and plan ahead. 

Land and Water Contamination

Businesses whose manufacturing or industrial processes involve PFAS should also be aware of developments in respect of PFAS-related land and water contamination.  A recently disclosed report prepared for the Environment Agency estimated that there could be up to 10,000 “high risk” PFAS contaminated sites, and the cost of remediating those sites could be up to £121 billion[9].  As a result, PFAS-related land contamination may represent a significant financial and operational burden on businesses using PFAS or PFAS-related products within their manufacturing processes or businesses operating on sites subject to historical PFAS contamination.  

In particular, businesses should be aware of two key developments in relation to land contamination:

1. PFAS is becoming an “emerging risk” to the development/redevelopment of land. Issues around contamination have traditionally been managed and cleaned up through planning and the redevelopment of land.  However, increased scrutiny of PFAS, coupled with regulatory uncertainty, is impacting development projects and leading not only to delay but potentially to projects never getting off the ground. In some cases, this could lead to land being considered “undevelopable”.  Therefore, there is a risk that PFAS contamination could (i) restrict the ability of manufacturers to sell land on once manufacturing has finished or (ii) force them to remediate the land to remove any PFAS pollution before the land can be sold, which is likely to be costly and cause delays in any sale process. 
2. Linked to the above, legal proceedings are developing as a means of requiring PFAS affected land to be cleaned up.  In England, the Contaminated Land Regime (CLR) under Part 2A of the Environmental Protection Act 1990 deals with the remediation of contaminated land which causes an unacceptable level of risk. Under the CLR, where land has been designated as contaminated, local authorities or the Environment Agency are required to ensure that those who are responsible for the contamination remediate it. Liability is firstly imposed on those persons who caused or knowingly permitted the contaminating substances to be present in, on or under the land.  However, if no such person can be found, liability passes to the current owner or occupier of the site (regardless of whether they were aware of the contamination).  This could lead to either former owners of sites (as the polluters) or existing owners shouldering the burden and cost of remediation where PFAS pollution is identified at a site.  

Water pollution represents a similar risk to businesses whose manufacturing or industrial processes involve PFAS. Although some environmental permits require water and sewerage undertakers in the UK to remove PFAS from wastewater, there are no wider legislative obligations on them to do so. Therefore, any PFAS discharged into public sewers is unlikely to be removed and will be discharged into watercourses untreated.  Because PFAS is not removed from wastewater on a wholesale basis, businesses do not currently bear the costs of any remediation activities.  However, this approach may change. 

In January 2025, the EU’s Urban Wastewater Treatment Directive (UWWTD) came into effect and broadened the application of the well-established "polluter pays" principle to PFAS in wastewater.[10]  As a result, the costs of treating any PFAS in wastewater will largely be borne by the responsible industries, rather than water companies or the public.  The UWWTD will only apply to Northern Ireland, but Philip Duffy, the Chief Executive of the Environment Agency, has reportedly suggested that a similar approach should be considered for the rest of the UK.[11]   If this were to come to fruition, the industries which caused the pollution may be liable for remediation costs.

Equally, the regulation of the use of sludge or biosolids (a by-product of the sewage treatment process that is often sold to farmers as a fertiliser) is limited. For example, there is no requirement to test for PFAS. This is a regulatory gap that the EA and Defra have acknowledged needs to be filled and the Sludge Strategy envisages modernising the regulatory regime by evolving the existing environmental permitting regime. As to when that will be achieved is yet to be determined. In the meantime, this regulatory gap poses potential litigation risks for businesses who use or supply sludge with PFAS. 

In light of these risks, businesses should consider how they can manage their sites in an optimal way to reduce the risk of causing any PFAS contamination in the first place.  Where businesses are aware of current or historic PFAS contamination, site processes and procedures should be reviewed to reduce the risk of causing further contamination or exacerbating existing contamination.  

Litigation and Legal Proceedings

In addition to claims under the CLR, other types of claims and legal avenues are developing which would enable litigants to seek redress for PFAS contamination and public health and environmental harms.  This could include claims against businesses who produce products containing PFAS or whose manufacturing processes involve PFAS. 

In addition, claims may be brought for: 

1. statutory nuisance under s.79(1) of the Environmental Protection Act 1990.[12] Statutory nuisance legislation is designed to provide a summary procedure for the remedy of an array of unacceptable states of affairs, most of which put at risk human health or harm the amenity of neighbours. There are various categories of statutory nuisance which PFAS could fall under, including discharges from industrial, trade or business premises. In such cases, an “aggrieved person” (being someone whose health is or is likely to be injured by a statutory nuisance) could potentially bring proceedings against the company responsible for causing the statutory nuisance.
2. private nuisance and negligence.  These claims could apply, for example, in the context of soil and groundwater PFAS contamination where the company responsible for the contamination can be identified. The recent decision by the Supreme Court in the Manchester Ship Canal litigation (which concerned discharges from a water undertaker) marked a significant legal development and potentially opened up the field of private nuisance to wider claims.[13]

These heads of claims carry evidential and causation difficulties. For example, a claim of statutory nuisance might be challenged on the basis that the requisite degree of linkage between the presence of PFAS and the activities of the defendant cannot be established.  Additionally, claimants will need to produce evidence of a causative link between PFAS and the health/property impacts.  However, these issues are not insurmountable and we would expect to see similar claims being brought forward as the science continues to develop in this area. 

Looking ahead 

Although the UK is lagging behind its counterparts in respect of legal restrictions on PFAS, the trajectory is clear and we expect to see significant developments in the regulation of PFAS over the coming years. 

In light of the developments outlined in this article, it is imperative for operators and developers to stay informed and prepared.  Businesses should proactively assess whether they are likely to be impacted by or at risk from greater restrictions on PFAS, both within their own operations and those of their wider supply chains and ensure they have the processes in place to mitigate these risks where possible.

For more information on PFAS regulation and its implications, please contact Michael Barlow, Victoria Barnes or Helena Sewell, or listen to our Environment Matters podcast on the impact and regulation of PFAS. 

[1] Regulation (EC) No 1907/2006 of the European Parliament and of the Council

[2] https://www.pops.int/TheConvention/Overview/TextoftheConvention/tabid/2232/Default.aspx

[3] The Persistent Organic Pollutants Regulations 2007

[4] A Green Future: Our 25 Year Plan to Improve the Environment (2018)

[5] Brexit means Britain unable to ‘effectively’ regulate chemicals, warns regulator

[6] UK REACH Work Programme 2024/25

[7] Environmental Audit Committee Inquiry: Addressing the risks from Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)

[8] ECHA Scientific evaluation of the proposal to restrict per- and polyfluoroalkyl substances (PFAS) – Current status

[9] EIR2024/13311.

[10] Directive (EU) 2024/3019 of the European Parliament and of the Council of 27 November 2024 concerning urban wastewater treatment (recast)

[11] As reported in ENDS Report

[12] Environmental Protection Act 1990

[13] The Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2022] EWCA Civ 852 (27 June 2022)