This article is the second in a series of articles about per- and polyfluoroalkyl substances (PFAS). You can find our first article here: PFAS: An Emerging Risk for Developers. Stephen Sykes, Fern Dempsey and Celyn Evans turn to discuss the evolving remedies for developers facing issues with PFAS.
Recap: what are PFAS, and why have they become a growing concern?
PFAS are a large class of synthetic chemicals that have been used worldwide since the 1940s in a range of products, including firefighting foams and food packaging. Known as “forever chemicals”, PFAS are persistent in the environment due to their strong chemical properties, making them resistant to degradation. As a result, there is an expanding concern about both widespread environmental contamination and human health risks from PFAS exposure. This has meant that PFAS have become a critical issue for developers, impacting risk management strategies and insurance coverage.
Section 61 Notices
Recently, the Environment Agency (EA) has increased scrutiny of permits issued to airports for the discharge of pollutants into water bodies. Under the Environmental Permitting Regulations 2016, the EA have the power to issue section 61 Regulation Notices (S61 Notices) which require facilities to provide more detailed information on the pollutants being discharged. With PFAS increasingly included on the list of regulated contaminants, airports, petrol stations, and other facilities that use or store such chemicals are being asked to assess and address PFAS contamination risks in their discharges. The S61 Notices focus on PFAS, in addition to other pollutants such as herbicides and de-icing products used for vehicles.
Responding to a S61 Notice
When issued with a s61 Notice, compliance with the specified deadlines and providing accurate information is paramount to avoid serious legal consequences. The following steps must be taken to meet the requirements of a S61 Notice:
- Site survey
This must be provided within 6 months. The survey should evaluate the site’s history, drainage plans, details of permits, and identify high risk PFAS sources and discharges points.
- Surface water risk assessment
This must be completed within 22 months and should involve engaging an environmental consultant to evaluate any surface water risks, specifically with regard to any PFAS contamination.
- Screening
A testing method for waste discharged at the site needs to be developed within 4 months (as will be discussed in the site survey). This screening method will require approval from the EA. If approved, it can be implemented on-site.
- Monitoring programme
If the screening method is adopted, it must be monitored regularly, with reports submitted to the EA every 21 months. It is essential that the monitoring report addresses any failures or issues with the screening methodology.
Implications of a S61 Notice
Receiving a S61 Notice from the EA can have serious implications for sites like airfields, petrol stations, and other facilities that manage hazardous substances. Though, PFAS are so widespread in the UK that they can be found across a wide range of commercial and residential sites.
If a S61 Notice is not properly addressed within the specified timelines or if the information provided is inaccurate or incomplete, then the EA can take enforcement action, including penalties, fines, or even criminal prosecution. Additionally, failure to comply with the S61 Notice could result in reputational damage and could potentially increase insurance premiums for developers and operators.
We have an excellent track record of getting results for clients who are the target for regulatory notices. We use our environmental and regulatory law expertise ¾ plus our extensive contacts in the environmental consulting sector ¾ to develop an action plan to protect our clients from enforcement action.
The risk of PFAS contamination on site may lead to costly clean-up efforts, as well as potential liabilities for environmental damage. Developers and facility owners should also be aware that non-compliance can create a domino effect, causing delays in construction or operational activities, as authorities may impose further restrictions or shut down sites until compliance is achieved. Thus, timely, accurate, and proactive measures are crucial to avoid more severe penalties.
Evolving Remedies for Developers Dealing with PFAS Contamination
The growing concern surrounding PFAS contamination presents a significant challenge for developers, particularly in sectors like airfields and petrol stations, where these chemicals have historically been used. The evolving remedies for addressing PFAS contamination (ranging from risk management plans to advanced remediation technologies) highlight the need for proactive and informed action. With the right strategies in place, developers can mitigate their environmental impact, avoid legal pitfalls, and maintain operational integrity as they navigate this complex issue. It is critical that developers consider:
- Risk management and site assessment
- PFAS treatment technologies
- Insurance and liability coverage
- Collaboration with environmental consultants and lawyers
- Regulatory compliance and engagement with authorities
Long-Term Consideration
PFAS contamination is not a risk that can be easily mitigated in the short term. It is essential for developers, particularly in sectors like airfields and petrol stations, to adopt a long-term strategy for managing potential PFAS-related risks which considers the latest developments in environmental law and scientific understanding. This includes ongoing monitoring of any remediation efforts, continuing education on emerging technologies and regulations, and remaining vigilant about maintaining compliance with environmental standards. Additionally, considering the possibility of future regulations mandating the clean up of legacy contamination is key to reducing exposure to long-term liabilities.
How can we help?
For more information of advice on possible regulations with regards to PFAS, S61 Notices and environmental advice on your projects, please contact our Environmental Disputes team who can support you.
