PFAS is the acronym for poly- and perfluoroalkyl substances, which are sometimes referred to as “Forever Chemicals”, as they 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 they have been accumulating in the planet for the last 80 years, posing risks to the planet and people’s health. According to the PFASfree 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 full impact of PFAS is still unknown and scientific and medical disputes are ongoing as to the dangers of these substances.
PFAS have been found in various water sources, such as rivers, lakes and marine environments. They have been found present in drinking water supplies, which has raised concerns about contamination and associated liabilities. The general liability and environmental insurance sectors have already been looking into potential exposures. So, could PFAS also become a Professional Indemnity (PI) concern in the UK construction sector?
Covington & Burling LLP published an article this year in relation to the Regulatory landscape, providing a Legal update. This highlighted various legislative facts:
As regulations tightens, the industry must be alert to exposure. Construction professionals may be unaware that PFAS are embedded in the materials they specify, design, or install. And so it is crucial that construction Professionals remain consistently up to speed with the latest regulations and must demand the same scrutiny from their supply chain.
PI insurance policies often exclude claims arising out of pollution events, and pollution events are the number one current concern related to PFAS. However, most PI policies will carve back coverage for pollution risks if the claim is a direct result of a negligence in the provision of the Insured’s professional services (or the services provided by a sub-consultant acting on behalf of the Insured); This coverage is usually limited specifically to pollution events which are sudden, unexpected and accidental spillage/contamination, which may serve to negate any cover in the event of PFAS pollution or contamination events.
Nevertheless, the landscape is rapidly changing, and PFAS-related claims could arise under PI policies in respect of:
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.
As research and regulations develop, we must be alert to the liability of consultants in relation 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 checklist to consider for PFAS Risk awareness.
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.
PFAS: Legal Update and Insurance Considerations, Alert February 26, 2025 and Fidra.
