Insurance Coverage for PFAS Contamination

Per-and polyfluoralkyl substances (PFAS), described by some as “forever chemicals,” are becoming household words, and are emerging contaminants of concern to state and federal regulators. PFAS are a group of long-lasting chemicals that are present in many different products, from cookware to food packaging to firefighting foam. Exposure to high levels of PFAS is reported to cause adverse health effects, including cancer, liver damage, and decreased immune response. As concerns regarding the prevalence of these chemicals in the environment grow, governmental agencies have begun to issue strict standards regarding their discharge, and have begun to actively investigate areas where PFAS contamination may be present. This means that property owners and commercial or industrial operators may be subject to investigations and potential enforcement actions where PFAS contamination is suspected. It also means that agencies such as the New Jersey Department of Environmental Protection (“NJDEP”) could require investigation of PFAS in existing cases as well as closed cases where remediation has been completed. This could potentially subject property owners and responsible parties to potential enforcement and lead to additional remedial costs for those sites. Site cleanup, compliance obligations, and possible third-party legal actions can result in thousands if not millions of dollars in remediation costs.

The good news is that property owners and other responsible parties can potentially tap into insurance policies that may cover remedial costs associated with PFAS contamination. While many insurance carriers exclude PFAS from coverage for new policies, many older policies do not have effective exclusions, and could still provide coverage to pay remedial and defense costs. These historic policies may offer coverage where discharges can be shown to have occurred in the past, sometimes decades ago. PFAS contamination may implicate multiple insurance policies spanning decades. If the property owner or party responsible for the remediation can locate the old policies or other evidence that historic policies were issued, policy holders may be entitled to coverage for all or a portion of expensive remediation costs. A policyholder facing a PFAS claim should not accept an insurer’s denial of coverage without first analyzing the circumstances and policies.

Our law firm has extensive familiarity with the various policies that have been issued by the insurance industry over time. We have an established track record of helping clients to search for and locate evidence of policies resulting in payment for environmental cleanups, including where policies have been lost, damaged or destroyed. If you are facing remedial costs pertaining to PFAS contamination or any other environmental concern, give us a call.