Per- and Polyfluoroalkyl substances (PFAS) may pose the single greatest environmental liability risk to companies today. Used in a wide variety of products including firefighting foam (AFFF), Teflon, shoes, carpets and clothing, these manmade chemicals travel quickly and persist in groundwater. They require complex and expensive remediation and do not degrade, leading many to refer to them as “forever chemicals,” because the list of problematic qualities is long:

• Ubiquitous
• Migrates slowly through soil
• Highly stable & mobile in groundwater
• Capable of traveling long distances
• Does not degrade
• Costly to clean up
• Toxic even at low concentrations
• Bioaccumulates in humans

With as many as 5,000 PFAS chemicals suspected, PFAS are now a major remediation target at the federal, state and local level, and have increasingly become the subject of private party litigation, particularly over the past two years. Much of this litigation has been against PFAS manufacturers, under several key regulations:

• Safe Drinking Water Act (SDWA)
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
• Resource Conservation and Recovery Act (RCRA)
• National Primary Drinking Water Regulation (NPDWR) (June 25, 2024)

Companies exposed to PFAS liability may find insurance coverage under their historic general liability policies since these provide coverage for property damage costs and groundwater is considered property. There are also a variety of pollution liability insurance policies that may provide coverage under prescribed circumstances.

Anderson Kill has been tackling tough environmental liability issues for more than five decades. We can help.