Remediating, Insurance and Litigating PFAS Claims

White Paper

PUBLISHED ON: April 15, 2021

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Dating PFA Releases

A central element of insurance claims that aim to recover costs for investigation and remediation of environmental contamination relates to the date of a chemical release. This question—when chemicals were released to groundwater, soils, and sediments—may determine whether an insurance policy was in effect when the release occurred and therefore whether costs associated with investigation and cleanup are covered by that policy. Dating a PFAS release requires a “weight of evidence approach,” whereby findings from multiple scientific and independent lines of inquiry are considered together to establish or bracket when a release occurred. These lines of evidence require understanding the detailed operational history relative to PFAS use at the site in question, as well as the chemical signature for that site’s operations and the fate, transport and transformation of the particular PFAS compounds in that signature.

PFAS Timeline

The foundation for dating PFAS releases depends on the timeline of creation, development and commercial availability of PFAS-containing materials and products, and changes in manufacturing methods, production and phase-outs. As a first step in understanding if a release from a facility could have occurred (and if so, when), it is necessary to consider historical changes in PFAS manufacturing and commercialization of products. Key related events are shown in Table 1. Such events can be considered together with the timeline of facility operations to roughly bracket when a release could have occurred.

Operational Timeline

The reconstruction of historical facility operations and characterization of current operations is helpful to determine whether and when PFAS-containing materials were used, whether processes that used PFAS were employed, and whether releases occurred that could have introduced PFAS into the environment. Historical reconstruction of facility operations involves describing processes, types of products manufactured, nature and quantities of wastes generated, and how and where wastes were disposed over time. Critical evidence can be derived from spill records, disposal records, process and purchasing records, historical fire insurance maps, aerial photographs, and company annual reports. Dated purchase inventories and safety data sheets may also provide information on PFAS usage and the time periods of use. Because such records may withhold the identity, or even the presence, of PFAS as confidential business information, or for example may generally refer to “fluorosurfactants,” expert knowledge and/or chemical analysis of products may be needed to determine if materials used likely contained PFAS.

PFAS releases may be associated with manufacturing operations and/or as part of fire suppression or training and testing activities using aqueous film forming foams (AFFF). Fire department records or other safety related records can identify locations and timing of releases of AFFF or other potentially PFAS-containing fire suppressants.

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Insurance Recovery Attorney | Anderson Kill P.C.
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