We have previously written on the evolving risks associated with PFAS—also known as “forever chemicals”—and their implications for policyholders navigating environmental liabilities involving both PFAS and PFAS-related chemicals (i.e., fluorinated chemicals that do not fit the definition of PFAS). Our prior analyses explored coverage strategies and regulatory enforcement trends. With regulatory activity and litigation continuing to accelerate, we are circling back to provide an updated look at the regulatory and legal landscape surrounding PFAS, including recent federal developments, insurer responses and practical guidance for policyholders navigating this complex and high-stakes area. To meet these risks, policyholders with potential exposure are well advised to review their general liability coverages, including both historical occurrence-based policies, pollution legal liability policies and any new terms added to current renewals.
Since our last insurance roundup in October 2023, there have been significant developments in PFAS regulation, litigation and insurance coverage about which policyholders should be aware. This blog post provides an inexhaustive overview of some of the more significant developments.
REGULATORY DEVELOPMENTS
Addition of PFOA and PFOS to the List of CERCLA Hazardous Substances
As previously noted in Pillsbury’s PFAS Observer, the U.S. Environmental Protection Agency (EPA) added the two most studied PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), to the CERCLA list of hazardous substances through an April 2024 final rule. This significant rulemaking opens the door to the imposition of strict, joint and several liability under federal Superfund law upon four categories of potentially responsible parties: past and present owners and operators of properties where these two PFAS have been released, transporters and arrangers (i.e., entities that have made arrangements by contract or otherwise to dispose of these chemicals). Simultaneously with the final rule, EPA issued guidance clarifying that its intent to implement enforcement discretion to avoid targeting certain businesses, including some “passive receivers” of PFAS (such as municipal solid waste landfills). The CERCLA rulemaking has been predictably challenged in court. It also has been cited as an example of an impractical regulation, fit for rescission, in Project 2025.
Promulgation of Drinking Water Standard for Six PFAS
During the same month that it issued the final CERCLA rule, EPA issued Maximum Contaminant Levels (MCLs) for six PFAS, including PFOA and PFOS, under the Safe Drinking Water Act (SDWA). For the latter two PFAS, the MCL was set at 4 ppt—orders of magnitude lower than the threshold of regulation for other industrial chemicals. Although MCLs are drinking water criteria, they serve also as de facto remedial targets, including within the context of CERCLA cleanups. Taken together with the CERCLA rulemaking discussed above, the establishment of the MCLs stands to impose the onerous Superfund liability regime upon properties contaminated with PFOA and PFOS, which, because of the numerical values of the MCLs, will necessarily take longer and be more costly to remediate. As of the date of this blog post, EPA is reputedly considering whether to amend or rescind the SDWA rule.
Regulations That Stand to Identify Businesses with a Nexus to PFAS
In addition, EPA has finalized two regulations that will compel businesses with a nexus to PFAS to submit data to the information that will be subject to public disclosure. The most significant is the One-Time Reporting Rule for PFAS promulgated under Toxic Substances Control Act (TSCA) Section 8(a)(7). This rule requires all manufacturers and importers of PFAS—including importers of PFAS contained in articles—to report detailed information for each year from January 1, 2011, through December 31, 2022. The required data encompasses chemical identities, production volumes, uses, byproducts, disposal methods, worker exposures, and any known environmental or health effects. Entities must report all information that is “known or reasonably ascertainable,” necessitating thorough internal and supply chain investigations. The reporting period is set from July 11, 2025, to January 11, 2026, with an extended deadline of July 11, 2026, for certain small businesses.
This rule represents a pivotal step in the EPA’s efforts to monitor and manage PFAS. By collecting historical data on PFAS manufacturing and importation, the EPA aims to better understand the prevalence and impact of these substances, informing future regulatory actions and public health protections. From the standpoint of industry, however, the TSCA PFAS Reporting Rule amounts to a government mandated supply chain investigation, the results of which will facilitate regulatory and plaintiff efforts to associate specific businesses with PFAS-related exposures. Notably, it does not seem to be at risk of rescission, as the federal government recently earmarked some $17.5 million to update the CDX electronic report through which reports will have to be submitted.
In January 2025, EPA finalized a rule adding nine additional PFAS chemicals to the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA), bringing the total number of PFAS chemicals subject to TRI reporting to 205. These substances are now classified as “chemicals of special concern,” requiring facilities to report their usage and releases starting with the 2025 reporting year, with reports due by July 1, 2026. The effective date of this rule was delayed to March 21, 2025, to allow industries more time to prepare for compliance. As with submissions under the TSCA PFAS Reporting Rule, EPCRA reports are subject to public disclosure and use by regulators to inform enforcement efforts.
LITIGATION TRENDS
California Water Districts Leverage New EPA Standards in PFAS Litigation
After the EPA finalized enforceable MCLs for six PFAS compounds in drinking water, a coalition of 15 California cities and water districts, led by the Orange County Water District, filed a lawsuit against several PFAS manufacturers. This legal action, initiated in the U.S. District Court for the Central District of California, was among the first to directly cite the EPA’s new drinking water standards as a basis for seeking damages related to PFAS contamination. The plaintiffs allege that the manufacturers are responsible for the costs associated with treating and remediating PFAS-contaminated water supplies, asserting claims of negligence and public nuisance. This lawsuit exemplifies a broader trend of water utilities and public entities turning to litigation to recover the substantial costs of PFAS remediation.
Expansion of State-Level Lawsuits Against PFAS Manufacturers
A growing number of states have intensified legal actions against PFAS manufacturers, signaling an expanding liability landscape for companies involved in the production, distribution, or use of these substances, including historically.
Last year, Indiana Attorney General Todd Rokita announced a lawsuit targeting 22 companies for the continued manufacture and distribution of PFAS chemicals, asserting violations of environmental laws designed to protect human health.
In December 2024, the Maryland Attorney General filed a lawsuit in federal court against a manufacturing company operating 13 facilities in Cecil County, alleging that the company knowingly released PFAS into the environment for decades. The complaint asserts that the company was aware of the health risks associated with PFAS but failed to take appropriate measures to prevent contamination of local air, water and soil. The state seeks to hold the company accountable for the costs of investigation, cleanup and damages to natural resources.
Similarly, also in December 2024, Texas Attorney General Ken Paxton filed a lawsuit against major chemical manufacturers, alleging that they misrepresented the safety of PFAS-containing products, thereby violating the state’s deceptive trade practices laws. The lawsuit focuses on consumer products marketed as safe despite containing harmful PFAS compounds.
How Insurers Are Responding to PFAS Liabilities
Insurance companies have been quick to recognize the enormous liability potential of PFAS claims. They are attentively monitoring each stage and development in the underlying litigation against their insureds while simultaneously many are moving to limit their exposure. PFAS-related claims potentially implicate coverage provided under decades of occurrence-based general liability policies issued to an insured.
In the claims handling context, insurers are largely treating PFAS-related claims as they would other claims for coverage for bodily injury or property damage claims arising out of a substance made or sold by an insured that is introduced into the environment: denying coverage based on pollution exclusions or closely scrutinizing the facts. Virtually all modern commercial general liability policies contain some form of pollution exclusion, and insurers are invoking these provisions as a first line of defense against PFAS coverage. The resolution of insurer coverage defenses including those based on pollution exclusions turns on the specific facts at issue in the underlying claims against the insured, as well as the specific policy language at issue and the state law that will be applied to interpret the pertinent policy language.
For example, a Michigan federal trial court has held that an insurer had a “duty to defend” its insured against PFAS suit notwithstanding the presence of so-called “sudden-and-accidental” pollution exclusions in its policies, holding that Michigan law requires an insurer to defend the entirety of a lawsuit unless and until a court determines that the release of a pollutant is intentional and the exclusion conclusively applies. By contrast, in one PFAS suit involving a Georgia waterway, the insurer agreed to defend under a full reservation of rights, then filed a lawsuit seeking a judgment of no coverage under its policy’s “total pollution exclusion.” The court in that case found PFAS fell within the policy’s definition of a pollutant and upheld the exclusion, relieving the insurer of any duty to pay for the PFAS damage claims. This reflects a common insurer position: PFAS = “pollution” and therefore incurs no coverage under standard liability policies.
Coverage Considerations
Given these developments, policyholders should proactively review their insurance policies, assess potential exposures, and consult with legal counsel to navigate the evolving landscape of PFAS-related liabilities. A critical first step is to revisit historical insurance policies—particularly older occurrence-based general liability policies that may still respond to claims tied to past operations. These legacy policies often offer broader coverage than what’s available today and could be key to offsetting costly remediation or defense expenses. At the same time, policyholders should carefully review pollution-specific policies and new and renewal policies for PFAS-specific exclusions, which are becoming more common and increasingly broad.
When facing claims, carefully review the allegations of the demand or complaint with coverage counsel. Insuring agreements extend coverage to occurrences that were “unexpected or unintended” from the standpoint of the policyholder. Allegations, like those in the Maryland complaint, asserting that the policyholder was aware of health risk present special, but not insuperable, challenges when invoking such coverage. Assertions hinging on misrepresentation may also embolden insurers to argue that the gravamen of the claim is not bodily injury or property damage within the meaning of the policies (a view we believe is mistaken, but we would not be surprised to observe). Likewise, the law is still in flux on the application of historical pollution exclusions to claims involving chemicals not historically regulated by the EPA such as PFAS. Experienced coverage counsel can help evaluate and address these challenges that insurers may raise to accessing coverage.
Understanding where coverage may still exist—and where gaps may be emerging—is essential to protecting your business from the growing risks associated with PFAS.
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