The D.C. Circuit's refusal to overturn a federal designation of two forever chemicals as hazardous substances under federal Superfund law means continued legal exposure for policyholders and their insurers, coverage experts told Law360.

A three-judge panel rejected a challenge Aug. 18 from the U.S. Chamber of Commerce and other industry groups to the EPA's 2024 designation of perfluorooctanoic acid and perfluorooctane sulfonate, or PFOA and PFOS, as hazardous substances. That decision left in place a rising tide of claims for the insurance industry.

...

The insurance industry adopted the pollution exclusion in reaction to CERCLA, pointed out policyholder attorney Cameron Argetsinger of Anderson Kill PC, but PFAS claims can trigger earlier policies that contained an exception for "sudden and accidental pollution."

"You could be looking at an enforcement action involving PFAS discharges that happened 50 years ago, so if you've not already cataloged and indexed all of your historical insurance policies, you want to do that, and you should start doing that now, regardless of whether you've got an enforcement demand,' he told Law360.

...

Read the full article here.