Forever chemicals, forever liability?

The contamination we do not know about

Perhaps the most troubling issue is uncertainty.

We do not necessarily know which former industrial or waste sites remain contaminated, how far pollutants may have migrated through soil and groundwater, or which surrounding communities may have been exposed.

A 2025 BBC investigation found that, of 13,093 potentially high-risk contaminated sites identified by responding councils, only 1,465 had undergone intrusive inspection. The Office for Environmental Protection subsequently described this as an example of “resource-constrained regulation”, noting that several councils attributed the lack of inspections to funding pressures. (OEP)

The Welsh Affairs Committee has also recently observed that many communities which once powered Wales’ heavy industries continue to live with the environmental and economic legacy of that era, including contaminated land, mine pollution and disused coal tips. (Welsh Affairs Committee)

There is therefore an environmental justice dimension to historic contamination. Many legacy sites are associated with communities that have already experienced the economic consequences of deindustrialisation. The question is whether those communities are now being left with the environmental cost as well.

Who pays to find out?

Our contaminated-land regime provides mechanisms for identifying contaminated land and, where possible, applying the polluter-pays principle.

The difficulty is that determining whether land meets the statutory test requires evidence — and obtaining that evidence can mean expensive soil, groundwater and environmental investigations.

The system is also heavily reliant on redevelopment. Contamination is often identified when somebody wants to develop a former industrial site and the planning process requires investigation and remediation.

But what happens where there is no development to trigger that investigation?

The Government acknowledged in its July 2026 response to Parliament’s PFAS inquiry that, where voluntary action cannot be secured, the investigation needed to establish the evidence and determine liability is usually undertaken by the regulator at public expense. It also recognised the financial pressures on local authorities where no responsible party can be identified or remediation costs exceed local capacity. (UK Government response)

Authorities therefore have legal powers, but those powers can be practically constrained by the cost of using them. The result is a difficult circular problem: land may not be formally investigated because investigation is expensive, but without investigation it may be impossible to establish who should pay for remediation.

This raises an obvious question of fairness.

Businesses may have profited from industrial operations and subsequently sold their businesses or land. Yet decades later, the costs of determining what was left behind can fall on councils, taxpayers, developers and ultimately the communities living around those sites.

What does Anniston tell us?

Anniston, Alabama became one of the most prominent examples of environmental contamination litigation in the United States. Residents living near a former Monsanto chemical plant brought claims alleging long-term PCB contamination of soil, water and air, resulting in substantial settlements, regulatory action and a federally supervised clean-up programme. The comparison with the position in South Wales is instructive because the US system differs from ours not simply in its approach to litigation, but in its regulatory machinery.

Alongside private litigation, the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) — commonly known as Superfund — gives the US Environmental Protection Agency significant powers to investigate contaminated sites, identify potentially responsible parties and require or undertake remediation, with mechanisms for recovering clean-up costs.

Anniston demonstrates the potential for private litigation and a properly resourced regulatory remediation system to operate alongside one another.

The American system is not directly comparable with England and Wales. The US has different mechanisms for class and mass litigation, funding, disclosure and damages, and CERCLA itself has a statutory framework and limitations that do not exist here.

The lesson is therefore not that CERCLA should simply be transplanted. It is whether England and Wales have an equally effective means of funding investigation and remediation where the polluter cannot readily be identified or pursued.

What about legal claims?

Civil claims remain an important potential route to accountability, but historic contamination raises difficult questions of causation, limitation and corporate succession.

Limitation in property-based contamination claims is particularly fact-sensitive. A genuine continuing nuisance can arise where there are repeated discharges or an ongoing state of affairs causing continuing interference. However, the mere persistence of contamination from a single completed historic escape does not necessarily keep limitation running indefinitely.

Personal injury claims are subject to a different limitation regime. Broadly, the three-year period runs from the later of the date of injury or the claimant’s date of knowledge, with the court retaining a discretion to disapply the time limit where it would be equitable to do so. This can be particularly important in cases involving contaminants where health effects may emerge, or their cause may only become apparent, many years after exposure.

Other issues, including the precise cause of action, date of knowledge and any deliberate concealment, may affect limitation.

The important point is that the contaminant may remain long after the legal and corporate landscape surrounding its original release has changed.

Communities should not have to investigate alone

One of the clearest lessons from cases of historic contamination is the importance of affected communities coming together.

Residents, councillors, campaigners and scientists can identify patterns that may otherwise remain invisible. Community evidence can prompt investigation, help identify potential exposure pathways and create the pressure needed for regulators and companies to act.

But communities should not have to become environmental investigators simply to establish whether the land around their homes is safe.

That concern is particularly acute with PFAS and other persistent contaminants. An Environment Agency-commissioned study estimated that remediating between 2,900 and 10,200 high-risk PFAS sites in England could cost between £31 billion and £121 billion. Against that scale, the Environmental Audit Committee has called for stronger application of the polluter-pays principle and consideration of a national PFAS remediation fund. (Environment Agency/Jacobs | Environmental Audit Committee)

Persistent chemicals also create an intergenerational issue. Pollution deposited decades ago can remain capable of affecting soil and water long after those responsible have disappeared — raising legitimate concerns about what is being left for future generations.

Reform should therefore focus not only on what happens once contamination has been identified, but on how we proactively identify it, who funds that investigation and how, wherever possible, the cost can be returned to those responsible rather than inherited by the communities affected.

The question raised by Buried may ultimately be less about whether liability lasts forever and more fundamental:

If the pollution remains, who should carry the cost of finding it and making it safe for the generations that follow?