Are pollutants covered if they’re

applied rather than “discharged” or “dispersed”?

How can you know for sure how they emerged?

 Even if PFAS are held to fall within the ISO definition of “pollutants,”

that’s not the last word regarding the application of pollution exclusions to PFAS claims.

By Joseph S. Harrington, CPCU

Would you apply a pollutant to your face? You might be doing exactly that if you’re using cosmetics that include per- and polyfluoroalkyl substances (PFAS) developed to make materials resistant to water, grease, or heat.

Cosmetics are only one of a vast range of uses for PFAS, which are found in cookware, garments, furniture, food packaging, and other products. The presence of PFAS has been linked to increased risk to the liver and kidneys, plus other ailments.

Most prominent among the uses of PFAS is “aqueous film forming foam” (AFFF, called “A-triple F”), used to fight liquid fires. AFFF is at the “epicenter” of liability claims over PFAS, in the words of Thompson Coburn LLP, a law firm that specializes in PFAS litigation. To date, more than 10,000 claims of groundwater contamination by AFFF are being considered in multi-district litigation under the auspices of the U.S. district court for South Carolina.

That’s hardly the full extent of PFAS exposure, however. According to an August 2022 Thompson Coburn primer on PFAS litigation, “companies at every level of the stream of commerce now face exposure to PFAS litigation,” with “an estimated 98% of the U.S. population hav[ing] detectable concentrations of PFAS in their blood.”

For insurance agents and brokers, this means that the number and range of clients exposed to PFAS claims could be even greater than that for asbestos. Beyond that, it appears that litigation over PFAS will impact the drafting and interpretation of policy provisions.

PFAS as a pollutant

One thing that sets today’s concern over PFAS apart from the early days of asbestos and environmental liability is the widespread implementation in recent decades of pollution exclusions in commercial general liability (CGL) policies. A quick review of industry-standard CGL pollution exclusions developed by the Insurance Services Office is in order:

• Prior to 1970: There is no standard industry exclusion for bodily injury or property damage (BI/PD) caused by pollutants
• 1973: ISO incorporates an exclusion for BI/PD claims arising from pollution, with an exception preserving coverage for “sudden and accidental” discharges
• 1986: ISO replaces the 1973 policy exclusion with an “absolute” pollution exclusion that removes the exception for sudden and accidental discharges
• 1988: ISO introduces a “total pollution exclusion” endorsement option which excludes coverage for BI/PD “which would not have occurred in whole or in part but for the … discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time”

Also, from 1986 on, ISO policies and exclusions define “pollutants” to be “any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.”

Given this history, it came as no great shock that a U.S. district court in Georgia ruled in December 2022 that a total pollution exclusion endorsement eliminated coverage under a CGL policy for a claim alleging discharge of PFAS into local waters. Among other things, the court declared there was “no doubt” that PFAS were “pollutants” as defined in the policy.

Not the last word

Even if PFAS are held to fall within the ISO definition of “pollutants,” that’s not the last word regarding the application of pollution exclusions to PFAS claims.

As indicated above, standard pollution exclusions apply to the “discharge, dispersal, seepage, migration, release or escape” of pollutants. What about the application of a pollutant, as might be the case with a cosmetic product containing PFAS? What about coming into contact with a pollutant in the course of work, as firefighters do when using AFFF?

In Wisconsin, a state court held in July 2025 that the “discharge, dispersal, etc.” phrasing did not apply to claims by firemen “where the alleged mechanism of injury arises from direct contact with AFFF … or [from] the actual use of AFFF-containing solution for firefighting.”

A U.S. district court in California court reached a similar conclusion in February of this year, ruling that the exposure of firefighters to PFAS arose from normal use of firefighting foam, not from environmental contamination.

Proving the cause

Of course, not all policies use the most current ISO pollution exclusions. In a case involving PFAS contamination of groundwater, a U.S. district court in Michigan ruled in June 2021 that a CGL insurer was responsible for defense cost coverage under a policy with the pre-1986 exception for covering “sudden and accidental” discharge of pollutants.

Importantly, the court in the Michigan case held that it was not clear from the facts presented whether the alleged contamination resulted from a sudden or accidental occurrence or not. Since the insurer could not demonstrate that the contamination was not sudden or accidental, it was liable for defense coverage.

Similar logic applied in the latest PFAS case to gain national attention: An August 2025 U.S. district court ruling that an insurer owed defense cost coverage to a town in New York cited as a “potentially responsible party” for cleaning up PFAS at an airport designated as a federal “Superfund” site.

After providing defense coverage under a reservation of rights letter, the insurer denied coverage on the basis of its proprietary pollution exclusion, which stated there was no coverage for “pollution and contamination of any kind whatsoever.”

The exclusion included an exception, however, providing coverage for pollution or contamination “caused by or resulting in a crash fire explosion or collision or a recorded in-flight emergency causing abnormal aircraft operation.”

What’s a drafter to do?

In short, the drafters of the policy in the New York case no doubt thought they were going above and beyond to make it clear that they intended to cover only pollution or contamination that resulted from an aircraft accident. On top of that, the policy included a “combined claims” provision expressly denying responsibility to provide defense coverage when covered claims were combined with excluded claims.

So, why did the court find coverage? Essentially because the insurer could not establish that none of the contamination was caused by an aircraft accident. In challenging the coverage denial, the town reported that there were aircraft emergencies at the airport that may have required use of AFFF, but the town did not produce evidence that such use actually happened.

No matter. The insurer could not establish that there wasn’t an accident contributing to the spread of AFFF, so defense cost coverage was reinstated.

And, for as much as you may have already heard about PFAS, we’re just getting started.

The author

Joseph S. Harrington, CPCU, is an independent business writer specializing in property and casualty insurance coverages and operations. For 21 years, Joe was the communications director for the American Association of Insurance Services (AAIS), a P&C advisory organization. Prior to that, Joe worked in journalism and as a reporter and editor in financial services.