Managing the risks of ‘forever chemicals’: PFAS in the construction industry
April 2025Updated March 2025
Introduction to PFAS and its use in the construction industry
Per- and polyfluoroalkyl substances (PFAS) are a group of synthetic chemicals valued in the construction industry for their durability and resistance to water, grease, and corrosion. They are commonly found in products and materials such as roofing, paints, coatings, sealants, adhesives, semiconductors, packaging, and fabrics, enhancing performance and longevity. However, the useful properties of PFAS which appeal to those working within the construction industry also make PFAS highly persistent in the environment, leading to growing concerns about their long-term impact on both ecosystems and human health. As awareness of PFAS-related risks and scrutiny increases, the construction industry faces mounting pressure to reduce reliance on these chemicals and products containing them. Coupled with this, we have also seen moves within the insurance industry to restrict or exclude cover related to PFAS, which we have recently commented upon in this update here.
Mounting legal and regulatory pressure
Globally, there is growing momentum to restrict PFAS use. Many countries are already imposing stricter limits on a wider range of PFAS compounds, with high-profile lawsuits and public pressure further driving the issue into the spotlight. For example, in January 2023, five countries within the European Union proposed a restriction dossier which would implement a sweeping ban on approximately 10,000 PFAS chemicals under the main EU chemicals legislation (EU REACH). Since then, the countries have worked with organisations such as the European Chemicals Agency (ECHA) to consider the feedback and comments received on the proposals[1]. If this is approved as envisaged however, it would represent a significant, if not the most extensive, chemical ban ever enacted in Europe. This measure would apply to both domestic and imported products, requiring industries to source alternatives and potentially reshaping entire sectors, including the construction industry. The ECHA’s final opinion was originally expected in 2024, however, the process has been delayed due to the complexity of the matter and the high volume of responses, with the opinion now reportedly estimated for release in 2026.
Although this EU ban is yet to be implemented, French Lawmakers, in February 2025, acted on PFAS contamination by reportedly approving a comprehensive and ambitious bill[2] aimed at protecting the public from PFAS risks. Commencing in January 2026, it will ban the production, import, and sale of PFAS-based cosmetics, ski wax, and certain treated clothing products when safer alternatives are available. The bill will also hold polluters accountable by introducing a fee on companies that release PFAS into the environment. Although the ban currently applies to only a limited number of product categories, it highlights the power of collective action and increased regulation. In less than two years, MPs, citizens, scientists, and investigative journalists appear to have pushed PFAS from being a little-known issue to the centre of political debate, resulting in one of the most ambitious laws on PFAS.
In contrast, the UK’s approach to regulating PFAS under its Registration, Evaluation, Authorisation, and Restriction of Chemicals (UK REACH)[3] framework is less comprehensive and more focused on individual chemicals. UK REACH governs most chemical substances manufactured or imported into the UK, requiring manufacturers and importers to identify and manage risks associated with PFAS. However, the framework has significant limitations. PFAS quantities below one tonne per year are excluded from registration requirements, and those contained within finished or semi-finished products may not be fully regulated. This selective and flexible approach reduces the overall effectiveness of the regulatory framework in addressing PFAS contamination. Additionally, there are other regulatory instrument such as the Water Supply (Water Quality) Regulations 2018[4], which stipulates that drinking water in England and Wales must not contain substances at levels that could endanger human health. However, this requirement is very broad, focusing on general water safety rather than targeting PFAS contamination specifically. As a result, this regulation offers limited protection against PFAS exposure and underscores the fragmented nature of the UK’s regulatory strategy.
The lack of cohesion between these frameworks has drawn criticism, with many pointing out that the UK is moving at a slower pace when compared with wider global efforts to tackle PFAS contamination. Critics argue that the current piecemeal approach, with responsibilities dispersed across multiple frameworks, is insufficient to address the complex and far-reaching risks posed by PFAS. According to some commentators, a more unified and comprehensive regulatory strategy is urgently needed to protect public health and the environment effectively.
The EU’s proposed major chemical ban further highlights the gap between the UK’s and the EU’s regulatory approaches. If enacted, an EU-wide restriction will exert significant pressure on the UK to strengthen its own PFAS regulations, for example to maintain trade / industry alignment and avoid regulatory divergence. Without decisive action, the UK potentially risks falling behind its global counterparts, leaving industries to face increased uncertainty and compliance challenges in an evolving regulatory landscape. We also see countries tending to follow certain global steps and trends, especially in respect of wider environmental matters.
Contractual and insurance considerations
Products containing PFAS
For contractors, designers and engineers, managing contractual obligations related to PFAS is essential to mitigating environmental, reputational, and financial risks. We may see an increase in contracts which seek to include specific clauses that explicitly or indirectly prohibit the use of PFAS and other harmful substances. For example, certain definitions of prohibited or deleterious materials can be drafted broadly and capture substances or products which are harmful to people or the environment. These clauses are often accompanied by strict compliance and reporting requirements. As awareness of PFAS contamination continues to grow and receive attention, industry professionals must take a proactive approach by ensuring that they review their contracts, to ascertain whether they explicitly address the potential presence of these substances or products in materials they specify or use and in respect of their supply chains.
To manage or seek to reduce their liability (where possible and appropriate), and to respond to wider environmental, societal and governance (ESG) requirements, contracts from employer or developer clients may require full disclosure from consultants and suppliers regarding the presence of PFAS in products, along with commitments to use safer alternatives whenever feasible. Specifications may therefore need to be updated to exclude PFAS-containing materials where possible, and independent third-party verification programs can provide additional assurance. Furthermore, liability clauses and indemnities should be carefully reviewed to ensure that any responsibility for PFAS-related risks is clearly allocated and managed accordingly, providing appropriate protection from unexpected legal and remediation costs.
By strengthening contractual protections and implementing due diligence processes, employers, developers, contractors, designers, and engineers can play a key role in reducing PFAS exposure in construction projects and the wider environment. Taking these steps not only safeguards against regulatory and legal action but also supports the industry’s transition towards more sustainable and responsible building practices
PFAS contaminated sites
The scale of PFAS contamination across the UK is alarming, with reports of an Environment Agency study identifying over 10,000 sites at ‘high risk’ of contamination. These sites primarily include locations with a history of industrial activities, particularly in sectors such as firefighting foam use, manufacturing, and chemical production. However, the reach of PFAS contamination extends far beyond these areas due to the chemicals’ ability to spread. This widespread nature of contamination poses a significant threat not only to the sites directly affected but also to surrounding areas, as PFAS can transfer through soil, water, and air, impacting regions well beyond the original contamination source.
The Buncefield Fire of December 2005 serves as an important case study within the UK highlighting the complexities and enduring impacts of PFAS contamination. Due to the extreme persistence of PFAS, they are used in a wide range of industrial applications due to their surfactant properties, making them highly effective in firefighting foams. Subsequent reports indicated that more than 250,000 litres of PFAS-containing firefighting foam was used as part of the efforts to fight the blaze at Buncefield oil storage terminal, the immediate risk of fuel-related pollution was compounded by the extensive release of PFAS into the environment. As large volumes of foam runoff then made its way through rivers, water treatment plants, and soil into groundwater, PFAS pollution spread across local water sources, affecting not only firefighters deployed at the time of the incident but also nearby communities as these chemicals entered drinking water. Although initial tests appeared to indicate that PFAS levels were within regulatory limits at the time, subsequent reductions in the Drinking Water Inspectorate’s permissible limits revealed that PFAS levels in groundwater had, in fact, been extremely high. This highlights the long-term risks of PFAS contamination, and the impacts they might have on ecosystems and communities, as these chemicals are difficult and expensive to remove once they enter the environment. The Buncefield Fire serves as a clear example of how changes in regulations, the persistence of these substances in the environment, and the ongoing environmental and health risks for those exposed make PFAS contamination a complex and evolving issue over a period of many years.
The widespread presence of PFAS contamination on sites across the UK presents significant concerns for developers, consultants, and contractors in the construction industry. For developers, purchasing land with historic PFAS contamination can lead to unexpected remediation costs, project delays, and increased regulatory challenges. This underscores the importance of conducting thorough site investigations before acquiring land to fully assess potential liabilities.
Consultants, including geotechnical and environmental specialists, may face increased liability if PFAS contamination is overlooked (i.e. as part of surveys conducted or advice issued) or not properly managed, especially as environmental and safety standards continue to tighten and acceptable PFAS levels in soil and groundwater decrease.
Contractors are also potentially affected, as they must handle and dispose of any PFAS-contaminated materials safely and appropriately, adding complexity, costs and extended programmes to construction projects. Moreover, unforeseen site conditions and contamination discoveries during the project can lead to delays and potential adjustments in the timeline or project, creating additional contractual and financial risks depending on the contract terms agreed.
As these challenges evolve, developers, consultants, and contractors will need to adopt innovative solutions and proactive strategies to manage the growing risks associated with PFAS contamination.
Insurance
As global awareness of PFAS contamination grows, insurers have adopted more restrictive approaches to coverage. As indicated in our recent article, we are now seeing more policies including PFAS-specific exclusions, limiting coverage for liabilities arising from contamination. This shift potentially presents significant financial risks for contractors, consultants, developers, and other industry stakeholders, as the costs of remediation and potential claims increase. Given the persistent nature of PFAS and their widespread use in construction materials, insurance providers are tightening their underwriting requirements, demanding extensive site assessments and risk mitigation strategies before extending coverage. These exclusions and limitations make it even more critical for those in the construction industry to proactively manage their exposure and seek alternative solutions.
The growing concern around PFAS extends beyond environmental liability considerations. Due to PFAS’s known health risks and persistent nature, businesses could face claims from a multitude of claimants and based on different allegations or heads of loss. These expanding liability considerations underpin the necessity for construction firms to evaluate their contract and risk management strategies, strengthen due diligence processes, and engage with insurers to explore available protections.
Conclusion
PFAS pose increasingly substantial challenges for the construction industry in the future, including in respect of environmental contamination risks as well as regulatory, contractual, and legal complexities. By understanding the risks and taking proactive strategies (including within contracts/subcontracts and risk mitigation measures), the construction industry can better mitigate the impacts of PFAS and transition to safer, more innovative and sustainable practices.
Beale & Co’s specialist lawyers are experienced in advising on a range of matters throughout a project’s lifecycle, including on core legal points linked to insurance or other core PFAS-related considerations in the construction industry. Our Contracts and Project Advisory Team have extensive expertise in reviewing, negotiating, and advising upon a range of professional appointments, construction contracts and subcontracts and associated risk management points.
If you are interested in finding out more about the issues covered above or wish to understand how these apply to your contracts or business practices, please contact Nathan Modell and Michael Salau.
For more information on key environmental issues or trends impacting the construction, engineering, and infrastructure sectors and how these may impact your business in the future, please visit our website.
[1] Progress update on the per- and polyfluoroalkyl substances (PFAS) restriction process, Progress document (ECHA) – 20.11.2024
[2] Le Monde, ‘France adopts ‘one of the most ambitious’ laws on PFAS’, 20.02.2025
[3] Health and Safety Executive, ‘UK REACH explained’, https://www.hse.gov.uk/reach/about.htm (undated)
[4] The Water Supply (Water Quality) Regulations 2018
[5]The Guardian, ‘High-risk sites’: where are the UK’s ‘forever chemical’ hotspots? | PFAS’, 15.01.2025
[6] The Guardian, Buncefield: the PFAS legacy of ‘biggest fire in peacetime Europe’ | PFAS, 23.02.2023
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