PFAS (per- and polyfluoroalkyl substances), a class of over 7,000 manmade compounds that are considered “forever chemicals” that never break down and can accumulate over time. PFAS chemicals are used in a variety of industries because of their resistance to heat, water, oil and grease. In addition to industrial processes, they are also a component of many of the firefighting foams used by the military, airport authorities, and local fire and rescue agencies. They contaminate soil, ground water, surface water and air. People can be exposed to these chemicals in dust, indoor and outdoor air, food, and drinking water. PFAS are an emerging pollutant that have the potential to cause great financial loss.
You’ve worked to build the value of your business. Don’t let a legacy liability exposure like PFAS devalue your business.
Do you know your neighbor’s processes? What if they cause contamination that spreads to your property? In Michigan alone, approximately 200 PFAS contaminated sites have been identified, but experts believe that number will grow, possibly as high as 11,000. PFAS could easily become the next asbestos health risk. More research is needed to better understand environmental concerns related to PFAS. Of the hundreds of known compounds, only a small number have been studied extensively. This makes it difficult to set regulatory limits for exposure. The U.S. Environmental Protection Agency has set lifetime health advisories for only 2 PFAS chemicals, PFOA and PFOS, which are both found in firefighting foams and no longer manufactured in the U.S. due to concerns about their toxicity. But, because of their presence in the environment, exposure is still an issue.
PFAS litigation is evolving.
Until recently, litigation has primarily focused on the manufacturers of PFAS for environmental cleanup and remediation, with some lawsuits for personal injury claims. Damages and settlements awarded are staggering. Could similar damages be awarded in litigation against companies that simply use PFAS in their products?
In 2010, Minnesota presented the first PFAS pollution claim against the manufacturer 3M for negligently discharging PFAS used in the manufacture of Scotchgard into drinking water sources. The lawsuit settled in 2018 for $850 million. Several states have since filed suits that will shape the future of PFAS litigation. Environmental pollution cases related to PFAS:
MN – 2018 – $850 million
AL – 2018 – $4 million
MN – 2019 – $2.7 million
AL – 2019 – $35 million
MI – 2020 – $55 million
MI – 2020 – $113 million
Last month, Johnson Controls agreed to pay $17.5 million to residents of the town of Peshtigo, WI for PFAS contamination of drinking water wells from the company’s firefighting foam training site in the area. The contamination plume was about three square miles.
Investigate precautions to take now to reduce your potential exposure risk. Seek out coverage that is available.
Companies that manufacture or use PFAS in some aspect of the manufacturing process must properly plan now how to avoid costly PFAS lawsuits or mitigate risk through the purchase of an environmental pollution liability policy. Companies without knowledge of PFAS use in products or processes should consider an audit and review of supplier materials for PFAS components that could subject the company to legal liability issues.
Under Federal law, property owners are responsible for the environmental condition of their property regardless of who or what caused the contamination.