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Greater PFAS Scrutiny Has Manufacturers, Insurers Worried

Law360 Insurance Authority

  • February 27, 2022

State regulators and lawmakers are paying increasing attention to pollution from per- and polyfluoroalkyl substances, also known as PFAS, which is a concern for manufacturers that may have been contributing to PFAS pollution for years and the carriers who insure them.

PFAS, commonly referred to as "forever chemicals" because they don't break down in the body, are man-made chemicals found in a variety of products, including carpets, leather, paints, cleaners and firefighting foams. According to the U.S. Environmental Protection Agency, these chemicals build up in the human body, adversely impacting health, and also can quickly disperse and pollute groundwater.

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Litigation regarding PFAS is "all over the place now," said Robert Chesler, shareholder in the Newark, New Jersey-office of Anderson Kill PC, who represents policyholders. Lawsuits have been brought by water districts and localities against large manufacturers such as 3M and DuPont over PFAS groundwater contamination and PFAS exposure in firefighting foam. There have also been a flood of private-party lawsuits against companies and water systems over PFAS pollution, and suits by those companies and systems against their suppliers.

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In general, states such as California and New York have interpreted the "sudden and accidental" exclusion as having a "temporal" component — meaning that any accidental discharge was viewed as an act of polluting — and have generally found no coverage after 1973, Chesler said. States such as New Jersey, Washington and Wisconsin that focus on intentionality in these cases generally find coverage up to 1986.

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