PFAS, or 'Forever Chemicals,' pose emerging risks in construction due to their toxicity and regulatory scrutiny. Learn about their impact, regulations, and insurance implications.
Background on PFAS
PFAS is short for poly- and perfluoroalkyl substances, or as sometimes referred to as “Forever Chemicals”, because it can resist high temperatures and chemical action. Due to their ability to repel water, grease, and heat, they are used in a wide range of consumer products, industrial processes, and even firefighting foams.
These chemicals can be toxic and have been accumulating in the planet for the last 80 years, posing risks to the planet and people’s health. According to PFAS free project run by Fidra, an environmental charity working to reduce chemical and plastic pollution, PFAS exposure is associated with a wide range of serious health issues, including various cancers, hormonal and immune system dysfunction, liver damage, high cholesterol, asthma, and reproductive and developmental risks. However, the impact of PFAS is still understudied. While there is strong evidence of harm, the full extent and mechanisms are still being researched.
In any case, PFAS have been found in several water sources, such as rivers, lakes and marine environments, including drinking water supplies, so this raised concerns about the spread contamination and liabilities. General Liability and Environmental Insurance sectors have already been “digging their teeth” in this exposure. So, could PFAS also become a Professional Indemnity (PI) exposure in the UK construction sector?
PFAS and regulation
In respect of the Regulatory landscape, Covington & Burling LLP published an article earlier in the year with a Legal update. They explained that, following Brexit, Great Britain currently imposes limited restrictions on PFAS but is actively reviewing their use, particularly in firefighting foams. In addition, the General Product Safety Regulation 2005 applies to consumer products in Great Britain and imposes strict liability for placing unsafe PFAS-containing products on the market. Furthermore, under the Health and Safety at Work Act and related regulations like the Control of Substances Hazardous to Health Regulations 2002 (COSHH), employers must assess and control exposure to hazardous substances, including PFAS classified as carcinogens, keeping exposure as low as reasonably practicable. Internationally, Covington & Burling reminds that the UK is a signatory to the Stockholm Convention, which restricts PFOS and PFOA (part of PFAS chemicals’ group), and several PFAS are listed as Substances of Very High Concern due to their risks to human health and the environment. Additionally, PFAS are regulated under various UK laws concerning drinking water, industrial emissions, and food contact materials, reflecting a growing focus on their environmental and health impacts.
As regulations tightens, the industry must be alert for its exposure. Construction professionals may be unaware that PFAS are embedded in the materials they specify, design, or install (e.g., sealants, paints, waterproofing membranes). Therefore, it is crucial that Construction Professionals are constantly updated with the latest regulations and expect the same scrutiny from their supply chain.
Professional indemnity position on PFOS
PI insurance policies often exclude claims arising out of Pollution – which is the number one current concern related to PFAS. Most policies may carve back coverage for some part of Pollution as a direct result of a professional negligent act or omission of the Insured (or a subconsultant acting on behalf of the Insured); sometimes, however, limited specifically to sudden and accidental spillage/contamination – which may not be applicable for PFAS exposure in this case. Nevertheless, the landscape is rapidly changing, and PFAS-related claims could arise under PI policies in respect of:
Design/specification of PFAS-containing materials.
Failure to warn or advise clients about PFAS risks.
Retrospective liability if PFAS use leads to remediation or third-party claims
Contractors, consultants, and developers should be aware of the potential for encountering PFAS on any sites, but they ought to exercise heightened caution when working on projects on brownfield sites. Developing or building on pre-existing sites, structures, or infrastructure, for example, may (inadvertently) expose them to contaminated land, increasing the risk of encountering PFAS (and/or other pollutants). Therefore, although a pollution assessment may be the standard before engaging in these projects, the heightened potential of exposure to PFAS (on brownfield sites specifically) necessitates additional care and risk management.
PFAS risk awareness
As research and regulations develop, we must be cautious about consultants’ liabilities related to design, specification and advice in respect of these potentially hazardous materials. Therefore, it is important to raise awareness and start the conversation even before claims arise. Here’s a check list to consider for PFAS Risk awareness.
Have you reviewed whether any specified materials (e.g., sealants, paints, membranes, coatings) may contain PFAS?
Have you requested PFAS disclosure from suppliers?
Are you aware of any legacy materials on-site that may contain PFAS?
Have you considered alternatives to PFAS-containing products in your design?
Are you up to date with UK regulations on PFAS?
Have you ensured compliance with the Health and Safety at Work Act regarding hazardous substances?
Are you monitoring developments in PFAS research and regulation?
Have you considered training or awareness sessions for your team?
PFAS may not yet be a headline PI risk — but the signs are there. As brokers, we have a duty to anticipate emerging exposures and guide our clients accordingly.
