‘Forever chemicals’ cloud the horizon: Is this risk manageable?

Dubbed “forever chemicals” because they don’t disintegrate, per- and polyfluoroalkyl substances, or PFAS, have also created risk management challenges for manufacturers, retailers and distributors of products containing the chemicals because of potential liability in several areas, including product liability, environmental damage and harm to workers exposed to the chemicals at their jobs. There is also the potential for directors and officers liability claims if allegations of undisclosed PFAS liabilities arise.

Zurich points out in its report, “PFAS – The Emerging Risks of ‘Forever Chemicals,’” that while PFAS have been used since the 1940s, the extent of the risk is still being defined. And, as the exposure has taken shape over the years, litigation has followed, with more than 6,400 PFAS-related lawsuits filed since 2005, the report notes.

“It’s a serious and prevalent risk that takes a thoughtful approach to manage,” said Scott Toland, Zurich Commercial Insurance’s Global Head of Liability. “The potential liability is broad, and, as the report points out, litigation is expanding.”

“The pervasiveness of the issue and its potential for class-action litigation have led some to compare it to the asbestos liability crisis,” said Sabine Schweich, Zurich’s AVP, Latent & Environment Claims. It is likely that companies in non-PFAS industries and others in product supply chains will be caught up in litigation along with the more obvious targets of lawsuits, she added.

“Plaintiffs are aggressively looking to identify new categories of defendants and claims,” Schweich said.

Controlling a broad exposure

A class of more than 5,000 chemicals, PFAS have been found in such household products as stain- and water-repellent fabrics, non-stick cooking utensils, paint, cosmetics and shampoo. Studies have found links between PFAS exposures and various cancers, effects on the immune system, low birth rates, thyroid problems and reduced effectiveness of vaccines.

Beyond the exposure to people, PFAS create ecological exposures when they end up water, soil or are carried through the air, the report notes. That means people face exposure not only from products and property, but from a contaminated environment as well.

Regulators have reacted with moves they hope will help contain the PFAS threat. Most notably, the U.S. Environmental Protection Agency (EPA) in 2021 introduced the “PFAS Strategic Roadmap: EPA’s Commitment to Action 2021-2024. The plan outlines steps to restrict the use of PFAS, hold polluters accountable and address the impact of the chemicals on disadvantaged communities, among other actions.

“Regulation is ramping up outside the U.S. as well,” Jelena Buha, Global Risk Engineering Practice Leader at Zurich Resilience Solutions points out in the report. The use of some of the chemicals has been restricted for several years in the European Union, she said, and in January 2022 the European Chemical Agency submitted a restriction proposal for PFAS used in fire-fighting foam.

Forever means forever

The PFAS risk is made particularly difficult to manage by the fact that the chemicals don’t disintegrate and conventional means of disposing of them won’t work.

In a podcast, Fred Myatt, Technical Underwriter at Zurich North America, said that “every molecule of PFAS that’s ever been created still exists. That fluorine-carbon bond is shockingly strong.”

There are few choices when it comes to remediation, Myatt pointed out. One is to use reverse osmosis to capture the contaminants in a small filter and another is using activated charcoal to filter out PFAS.

But that still leaves the issue of disposal, Myatt said. “You’ve not destroyed it, you’ve collected it…There aren’t any good answers at the moment.”

Don’t wait for regulations

Zurich’s advice to is to begin with a risk assessment to determine PFAS exposure. That means identifying whether there are exposures related to a company’s premises, workers or customers, determining which materials contained PFAS and identifying the manufacturing processes they were used in.

EPA rules will evolve and change, Myatt pointed out. “If I’m a business, I want to manage it even before the rules come into play, so that I know what my exposure is and what I’m doing to eliminate that from my processes if that’s possible.”

Zurich is training risk engineers to assess customers’ risk of PFAS and has guidelines on what to consider in managing the exposure. Underwriters use a PFAS risk grading framework which enables them to identify exposed industries and involve risk engineering and introduce exclusion where necessary and Zurich is modeling the exposure using data from internal models and external providers.

To learn more about the threat of PFAS and managing the exposure, download “PFAS – The Emerging Risk of ‘Forever Chemicals.’”