FOREVER CHEMICALS – PFAS & INSURANCE By Cathy Trischan, CPCU, CRM, CIC, ARM, AU, AAI, CRIS, MLIS, TRIP What do pizza boxes, firefighting foam and nail polish have in common? All may contain perfluoroalkyl and polyfluoroalkyl substances (PFAS), commonly referred to as “forever chemicals.” Thousands of compounds fit into this broad category, and while PFAS have been around since the 1940s, it wasn’t until 1999 that the first lawsuit involving them was filed. A farmer in West Virginia sued DuPont for contaminating water that affected his cattle. Litigation has expanded since, and there has been increased regulatory activity against those businesses with PFAS exposures. The costs of these claims, and the costs to defend them, can be staggering. 3M recently settled claims involving 4
drinking water contaminated with PFAS for $10.3 billion. PFAS are manmade chemicals that contain fluorine and carbon atoms and which are used in a variety of products, making them resistant to oil, heat, stains, or water. PFAS don’t degrade naturally over time and move readily through the environment, hence the term “forever chemicals.” PFAS can be found in drinking water, soil, the food supply, and the bloodstream of humans. The effect of PFAS on the body is still being researched, but studies have shown that these chemicals can cause harm in various ways. NOVEMBER 2023
Most commercial insureds, when faced with a liability claim turn to their Commercial General Liability Policy (CGL). Will the CGL respond? Unfortunately, the answer is – it depends. There are two primary exposures for most insureds – the PFAS could be released from the insured’s premises or the PFAS could be in the insured’s products. The CGL and its predecessor, the Comprehensive General Liability Policy, include pollution exclusions. The exclusion added in 1973 excluded pollution unless the release was sudden and accidental. A broader pollution exclusion, often referred to as an absolute
