In recent years, increasing legal and regulatory spotlight has been directed toward the use of per- and polyfluoroalkyl substances, commonly referred to as PFAS. PFAS refer to a group of widely used chemicals that are long-lasting and contain components that break down extremely slowly; as a result of their widespread use and their ability to move and persist in the environment, PFAS can build up in people and animals, as well as in water, air and soil in the environment. See PFAS Explained, United States Environmental Protection Agency; see also Our Current Understanding of the Human Health and Environmental Risks of PFAS, United States Environmental Protection Agency (hereinafter Our Current Understanding). PFAS commonly are used in a wide variety of consumer, commercial, and industrial products, including, but not limited to: food packaging; fire extinguishing foam; carpets, upholstery, clothing and other fabrics processed with stain and water repellent; cleaning products; non-stick cookware; paints, varnishes and sealants; and many more. See Our Current Understanding, supra. According to the U.S. Environmental Protection Agency, multiple scientific studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals, although the precise risk to human health and the environment remains difficult to assess. See PFAS Explained, supra.
A recent New York decision, Tonoga v. New Hampshire Insurance Company, addresses how pollution exclusions in liability policies affect an insurer’s duty to defend the insured in connection with claims alleging damages due to exposure to PFAS.