Toxic Liability of PFAS

In 1938, the experiment of a DuPont chemist did not yield – as he had first thought – a gross, waxy error, but a new chemical with remarkable properties: heat resistance, chemical stability and low surface friction. Decades of continuous experimentation have produced a class of chemicals capable of making non-stick and water-resistant coatings. Over time, these chemicals, per- and polyfluoroalkyl substances (PFAS), would become a major component in thousands of consumer goods: food packaging, non-stick cookware, waterproof clothing, paint, stain-resistant carpets and furniture, and anti-stain foams. -fire. The discovery of the toxicity of these remarkable chemicals lagged behind widespread adoption, but eventually gave rise to a nickname that reflected the stability and longevity of PFAS: “Forever Chemicals.”

In October 2021, the Biden administration announced a map to address, among other concerns, the migration of PFAS to drinking water sources. EPA Administrator Michael S. Regan launched the plan in Raleigh, North Carolina, alongside Governor Roy Cooper.

The EPA’s decision to announce the plan in North Carolina reflects the state’s unique relationship with PFAS production and its results. North Carolina was home to a DuPont production facility and now has the third highest exposure to PFAS of any state.[1] It is also the site of a series of PFAS-related insurance coverage disputes, including Colony Insurance Co. v. Buckeye Fire Equipment Co.which is pending in federal court in the Western District of North Carolina.

Buckeye is a Charlotte company with over four decades of experience in the industrial fire protection industry. And now it’s one of hundreds of defendants in a consolidated multi-district litigation (MDL) pending in federal court in South Carolina. See Aqueous Film Forming Foam Product Liability LitigationMDL No. 2873.

Plaintiffs sued Buckeye and others for bodily injury and property damage caused by “traditional environmental pollution” (e.g., release of PFAS into the environment) and direct contact or exposure to film-forming foams aqueous (AFFF). For example, a former fire instructor alleged that “he had been significantly exposed to high levels of PFOS and PFOA in their concentrated form as a result of regular contact with [Buckeye’s] AFFF products and through PFOS and PFOA that contaminated the Fire College well system.

Buckeye turned to his insurance company for a defense in this case and the hundreds of other cases in which he is named as a defendant. Buckeye’s insurer, Colony Insurance Co., filed a lawsuit for declaratory judgment, saying it had no obligation to defend Buckeye due to a ‘hazardous materials exclusion’ in the policy he issued at Buckeye. The exclusion, if any, eliminates coverage for claims “which would not have arisen in whole or in part but for the actual, suspected or threatened discharge, dispersion, infiltration, migration, release or escape of “hazardous materials” at any time. However, under North Carolina law, the exclusion does not apply in this case. Auto-Owners Ins. Co. vs. Potter105 F. App’x 484, 494 (4th Cir. 2004).

As affirmed by the Fourth Circuit, the issue was whether pollution exclusions like that of Colony’s policy were limited in their application to only “traditional” environmental damage. Under North Carolina’s control law, the exclusion clause has a narrow application, limited only to “traditional” environmental damage. Identifier.

[U]Under North Carolina law, an insurer cannot deny coverage to an insured based on a pollution exclusion, or any variation thereof, if the event and the bodily injury and resulting materials allegedly suffered by the underlying plaintiffs are not the prototypical environmental damages that a pollution exclusion clause is generally intended to protect against.

Colony Ins. Co. c. Buckeye Fire Equip. Co., No. 319CV00534FDWDSC, 2020 WL 6152381, at *3 (WDNC October 20, 2020), aff’d, no. 20-2208, 2021 WL 5397595 (4th Cir. 18 Nov. 2021) (cleansed). Because “something other than traditional environmental pollution”, that is to say., PFAS, caused the plaintiffs’ underlying injuries, the hazardous materials exclusion did not apply. Identifier. at 4 o’clock.

The litigation over PFAS coverage is in its infancy, but jurisdiction – and specifically how that jurisdiction applies a pollution exclusion – will play an important role as it continues.

FOOTNOTE

[1] Sheena Scruggs, PFAS – a problem in North Carolina’s drinking water, approx. Factor, NIEHS (March 2019), https://factor.niehs.nih.gov/2019/3/feature/2-feature-pfas/index.htm.

Copyright © 2022, Hunter Andrews Kurth LLP. All rights reserved.National Law Review, Volume XII, Number 59

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