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Drinking water rule sparks litigation fears

Testing drinking water

The U.S. Environmental Protection Agency’s recent establishment of safe levels of so-called forever chemicals in drinking water will likely lead to litigation between organizations and their insurers to potentially recover costs for updating municipal water supplies, experts say.

Lawsuits alleging personal injury and property damage caused by PFAS are also likely to increase, they say. 

PFAS, an abbreviation for perfluoroalkyl and polyfluoroalkyl substances, are potentially harmful substances that have been found in numerous commercial and household products ranging from firefighting foam to nonstick cookware. They have also been found in drinking water and soil.

Under the EPA’s drinking water regulation, finalized last month, the agency restricted PFAS to four parts per trillion in drinking water — “the lowest levels that are feasible for effective implementation,” according to the agency. 

While municipal utilities will be most affected by the regulation, it will have a “trickle-down” effect that reaches wastewater treatment facilities and companies that are permitted to discharge wastewater containing forever chemicals, said Susanne Deegan, vice president of environmental services at Marsh McLennan Agency, a unit of Marsh LLC. 

Although the federal Bipartisan Infrastructure Law, passed in 2021, made $9 billion available to help communities affected by forever chemicals in drinking water and $12 billion available for general drinking water improvements, the costs some municipalities face to remediate water systems could be three to four times more than what they can access through the law, she said.

“What’s going to happen is these utilities are going to look for responsible parties to help share the cost to remediate their systems and correct the infrastructure. They’re going to start looking for those polluters who introduced PFAS into the drinking water supply,” she said.

Although the EPA’s regulation ostensibly only applies to public drinking water suppliers, it will also affect agricultural companies, farmers, airports, private waste companies and any entity that is either actively putting PFAS in the water or has disposed of PFAS historically, said Lydia Zaharia, an environmental marketing director at Marsh McLennan Agency.

Companies could face risks of reputational harm as well as potential liability for contamination, she said. 

The regulation had been anticipated for some time, but the four-parts-per-trillion safety level is “momentous” and will have an “enormous” financial impact for insurers, said Washington-based Glynis Priester, national environmental practice leader at USI Insurance Services LLC. The regulation “will create a major uptick in litigation,” she said.

“Our greatest concern for many of our clients is the litigation risk, and, while they may have limited or little exposure, the costs of defense could be very material. The defense risk is a real financial consequence of this EPA regulation for many firms in the chain,” Ms. Priester said. 

The costs of settling lawsuits for PFAS-related liabilities can reach billions of dollars. On April 1, St. Paul, Minnesota-based 3M Co. announced the final approval of its $10.3 billion settlement with U.S. public water suppliers by a federal judge in South Carolina. Johnson Controls International PLC also recently disclosed a $750 million settlement between its subsidiary Tyco Fire Products and some U.S. public water organizations over PFAS. The settlement is expected to get preliminary approval in May.

The EPA’s announcement may later affect potential liability for companies because it increases awareness to the public and plaintiff’s bar of PFAS-related risks, said Michael Hamilton, Philadelphia-based insurance coverage attorney and a partner at Goldberg Segalla LLP.

Although commercial general liability policies routinely exclude pollution claims, some jurisdictions restrict the application of pollution exclusions to traditional environmental pollution, said John Ewell, a New York-based insurance coverage counsel at Cozen O’Connor P.C. 

“Whether there has been a ‘discharge, dispersal, release or escape’ of PFAS will be litigated. This question in particular will be germane in suits against manufacturers using PFAS in their products,” he said.

Mr. Ewell also said a threshold question will arise on what level of exposure to PFAS will result in a “bodily injury” triggering coverage. 

“While the EPA regulation addresses unsafe PFAS levels in drinking water, it does not expressly set a safe threshold or even address what blood levels are considered unsafe. We will need to hear from the medical community as to when exposure actually caused ‘bodily injury,’” he said. 

Ms. Zaharia said some insurers had created manuscript exclusions to carve out coverage for PFAS, and, in May 2023, the Insurance Services Office officially introduced forms and endorsements carving out coverage for forever chemicals in commercial general liability, umbrella liability and business owners policies and policies for auto dealers.

Historic policy language key in covering ‘forever chemicals’ liabilities 

Wordings in historic and current liability insurance policies will likely determine where companies seek coverage for property damage and injury claims related to exposure to “forever chemicals,” experts say.

Companies will look to their insurers for coverage as suits related to perfluoroalkyl and polyfluoroalkyl substances, known as PFAS, reach the courthouse, said John Ewell, an insurance coverage attorney at Cozen O’Connor in New York.

Commercial general liability policies are most likely to respond to lawsuits alleging bodily injuries and property damage were caused by PFAS, said insurance recovery attorney Marc Ladd, a partner at New York-based Cohen Ziffer Frenchman & McKenna.

“They are occurrence-based policies that respond to long-tail, progressive injury claims covering multiple years, and they cover allegations of bodily injury caused by an insured’s products, and property damage that may require costs and expenses to remediate and remove such chemicals,” he said. 

Pollution exclusions promulgated in 1986 may not bar all PFAS-related injury claims if they resulted from an individual’s direct exposure to the chemicals as opposed to exposure to traditional environmental pollution, which is what the pollution exclusion is intended to exclude, Mr. Ladd said.

Although some general liability and excess insurers have already carved out coverage for forever chemicals, companies can look to environmental markets for policies that cover the risk, said Fargo, North Dakota-based Lydia Zaharia, an environmental marketing director at Marsh McLennan Agency, a unit of Marsh LLC. 

“Following the recent EPA national drinking water standards for PFAS, we believe many carriers will work to establish their position on PFAS coverage quickly if not done already,” she said.