Environmental Liability

This Environmental Underwriter Wants You to Take PFAS Seriously

Toby Smith of Ironshore Environmental explains how the market should react to this emerging contaminant, and why it’s important to stay disciplined.
By: | October 15, 2018

Polyfluoroalkyl substances (PFAS) are the next big environmental threat. The man-made chemicals, which resist degradation and can persist in the environment for decades, have already been alleged to cause a variety of health impacts, including cancer. Used in everything from non-stick cookware, grease-resistant packaging, textile stain repellent and firefighting foams, PFAS were used heavily by manufacturers for about 50 years.

Now that the threat to public health is known, regulation is inevitable. Class action litigation has already yielded multimillion-dollar verdicts.

But much is still unknown, including the severity of the chemicals’ impact on health and the extent of litigation exposure borne by manufacturers, product distributors, waste disposal and any party in the PFAS supply chain.

That makes it difficult for environmental insurers to know exactly what to make of this risk. We spoke with Toby Smith, president, Ironshore Environmental, to find out how environmental underwriters are reacting.

R&I: What’s your approach to underwriting facilities with PFAS exposure?

Toby Smith: The first step is going through and identifying all of our insureds who have exposure to PFAS, which could include paper mills, food packaging plants, airports, landfills and smaller manufacturers.

Certain industries have higher exposure, but we’re not going to put a blanket exclusion on those sectors. We don’t want to lose business because we decided to exclude PFAS on a site that really doesn’t need an exclusion. We’re making sure we don’t overreact, while still taking this very seriously.

We’ll look at each account independently and decide if the exposure warrants an exclusion. Some will, some will not.

R&I: What factors play into your decision? How will you determine if an exclusion is necessary?

TS: We start with the assumption that no changes or exclusions are necessary. We look at traditional environmental data and other factors that could minimize or maximize the PFAS exposure. One factor to consider is where a facility is located in relation to sensitive receptors. Are they near drinking water intake for utilities? Are they near heavy residential areas? Or bodies of water that can transport the chemical over long distances where they could impact drinking water? One of our goals is clearly to not overreact to the exposure and amend coverage where it isn’t necessary.

What I would suggest to insureds is that the more open they are, the more information they provide, the better able we are to take a more open stance in terms of how much risk we can accept and what we have to exclude.

Toby Smith, president, Ironshore Environmental

We’ve had cases where we asked, ‘Have you ever used PFOA, PFAS or related chemicals?’ And the answer is ‘I don’t think so.’ That makes it harder for us to get to a point where we are comfortable accepting that risk. Having more data allows us to structure something that is less prohibitive.

R&I: Is there any new product opportunity here for the environmental market?

TS: I don’t think so, because there is still so much uncertainty. We still don’t know the extent of the litigation exposure for properties that used these chemicals for decades. Is it $10 million? Tens of millions? We’ll find that out in the coming years as more lawsuits roll in. Right now, it would be irresponsible and dangerous for us to try to protect clients from that exposure if there is material known exposure or contamination.

To be honest, one self-serving objective in talking to people about PFAS is trying to make sure that all of our competitors are taking it as seriously as we are, and it appears that they are.

R&I: Why is that?

TS: Because to a certain extent, if there are a lot of classes exposed to this and people aren’t taking it seriously, it will be hard for us to write business in those classes. There’s always a new entrant into our market who might not look at some of these really systemic issues.

If they don’t take a careful and thoughtful approach and don’t exclude the exposure where it is warranted, then their product will look much better to insureds and will certainly take opportunity away from us. But it will be very painful for both parties in the long run. For perspective, it is important to note that very few of our policies so far have required changes in coverage due to the PFAS exposure, but those limited number of exposed policies present material financial risk if not properly managed.

I would like other environmental insurers to do exactly what we’re doing — educate underwriters on PFAS, how they’ve been used and their effects on both the environment and people’s health. If we all take a disciplined and technical approach to this issue, it will help ensure stability in the market.

R&I: Because these chemicals were used for so long and are so persistent in the environment, there’s going to be a lot of legacy exposure. How will environmental insurers manage that?

TS: Moving forward, especially on new policies we’re looking at, most of the coverage we provide is claims-made. On a claims-made form, we roll off the exposure when the policy expires so the ongoing exposure only resides in the new policy. That’s a benefit if there’s an overwhelming exposure to PFAS and related chemicals.

On our occurrence-based policies, it’s not so simple. The exposure will remain solely because of the fact that the contamination exists. Most site pollution policies, however, are claims-made.

R&I: The evidence linking PFAS to certain health impacts is still not definitive. How might developments in that arena change your approach?

TS: This issue is being studied uniformly by state and federal agencies alike. There seems to be a consensus that this requires regulation, and we are seeing a massive uptick in both enforcement actions and private litigation, regardless of what any new studies say.

There is enough evidence to suggest this is here to stay. The bigger question will be: How severe are the injuries that will be linked to PFAS?

R&I: What about regulatory standards? The EPA set an advisory level at 70 parts per trillion; what changes from an underwriting perspective if that becomes an enforceable regulation?

TS: I don’t think the fact that the EPA level is only an advisory level affects the way we underwrite. The industry is already evaluating these risks as if there was a comprehensive maximum concentration level established for the individual chemicals.

It’s also important to know that a number of states have already implemented or have announced the implementation of their own standards, many of which are stricter that the EPA advisory level. New Jersey, for example, is moving toward 14 parts per trillion.

There are currently about 15 states that have or are implementing their own maximum concentration levels, but that number is always changing. If there are 15 states today, there could be 20 three months from now. It’s moving very fast.

The absence of regulation also does not hamper plaintiff action. The mere fact that you have a chemical concentration above an EPA advisory level that is associated with bodily injury is enough to pursue toxic tort litigation.

R&I: This is an expansive exposure that could create liability for companies all along the PFAS supply chain. What other types of coverage apply, and what do these insurance markets need to know?

TS: If you’re a distributor of a product containing a chemical in the PFAS family, you would have product liability rather than site pollution liability exposure. You may also have site liability if you purchase a property that previously used PFAS. Under CERCLA and state environmental laws, you’re liable for any contamination on that land, even if it was caused by the previous owner.

In areas where it’s difficult to get coverage because the contamination is a known issue, these parties might have recourse against a historical general liability policy. It will depend on the time frame of the damages and the coverage you had at the time.

I think the general casualty market probably knows less about this issue than the environmental market, but they are just as exposed, because this risk predates pollution exclusions. These chemicals have been used since the 1950s, and robust pollution exclusions didn’t come about until 1985. After 1985, a lot of manufacturers will also have products completed operations exceptions to the pollution exclusion.

There is still a lot of coverage to be found. &

Visit Ironshore.com for all disclaimers

Katie Dwyer is a freelance editor and writer based out of Philadelphia. She can be reached at [email protected]

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