By Edward (Ned) B. Witte, Witte Davis Law; Kristen Drake, PolicyFind; Lindene Patton, Earth & Water Law

The authors wish to thank and acknowledge the contributions to this article by Heather A. Davis, a Partner at Witte Davis Law. Heather has extensive experience in environmental compliance, toxic tort defense, Superfund, and products liability.

Introduction: The PFAS Challenge and the Insurance Solution

Per- and polyfluoroalkyl substances, commonly referred to by the acronym PFAS, have become one of the defining environmental liability challenges of our era. Manufacturers, municipalities, airports, military installations, industrial facilities, and a host of other parties are discovering, often for the first time, that operations conducted decades ago may now carry significant legal and financial consequences. Regulators at both the federal and state levels have moved aggressively to identify contaminated sites, designate responsible parties, and compel investigation and cleanup. The litigation exposure that follows is substantial, and for many entities, the cost of response is daunting.

Yet there is an often-overlooked financial resource that sits quietly in the past, waiting to be discovered: historical commercial general liability (CGL) insurance policies purchased before 1986. For businesses and municipalities that used or released PFAS in their operations as far back as the 1950s, those old policies may represent a meaningful, and sometimes transformative, source of coverage. The catch? Finding them requires specialized expertise, legal strategy, and a willingness to look in places that most organizations have long since stopped checking.

This article, co-authored by environmental and insurance lawyers and an insurance archaeology specialist, is designed to help businesses, municipalities, and other potentially responsible parties (PRPs) understand the landscape of PFAS liability, the insurance coverage options that may exist, and the practical steps involved in accessing them.

Background on PFAS Risk and Historical Context

PFAS are a large and diverse family of synthetic chemicals characterized by the strength of their carbon-fluorine bond, one of the strongest bonds in organic chemistry. That bond is what makes them so useful: PFAS repel water, oil, and heat. They have been commercially available and widely used since roughly the 1950s, appearing in products as varied as non-stick cookware coatings, food packaging, stain-resistant textiles, firefighting foams (particularly aqueous film-forming foam, or AFFF), and industrial surfactants.

The problem, of course, is the same durability that makes PFAS commercially attractive also makes them extraordinarily persistent in the environment. They do not break down under natural conditions. They accumulate in soil, groundwater, and biological tissue. They travel.¹ And they have been linked, through a growing body of epidemiological and toxicological research, to a range of serious human health effects, including certain cancers, immune system disruption, thyroid disease, and developmental harm.²

What is critical to understand for purposes of this discussion is the temporal dimension of PFAS exposure. Releases to the environment that occurred in the 1950s, 1960s, 1970s, and 1980s are only now being fully identified and quantified, as regulatory frameworks catch up to the science and as sophisticated analytical techniques improve our ability to detect these compounds at very low concentrations. The regulatory treatment of PFAS as hazardous substances is a recent development, even as the environmental releases that drive liability stretch back more than half a century. That temporal gap between release and regulatory response has profound implications for insurance coverage.

PFAS Liability: Federal Authority, State Regulation, and Third-Party Claims

At the federal level, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), enacted in 1980, provides the primary framework for addressing hazardous substance contamination. CERCLA liability is broad and strict: parties that owned or operated contaminated facilities, arranged for disposal or treatment of hazardous substances, or transported such substances may all be held jointly and severally liable for the full costs of investigation and cleanup.

The Biden-era EPA designated perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), the two most extensively studied PFAS compounds, as CERCLA hazardous substances in a final rule that took effect on July 8, 2024. While that rule faces ongoing legal challenge, and while the current administration has signaled some regulatory recalibration, EPA has confirmed that it intends to defend the CERCLA designation for PFOA and PFOS³. For PRPs, the practical effect is clear: PFAS contamination at or near facilities where these compounds were historically used or disposed now triggers the full weight of CERCLA liability and enforcement.

Many states, meanwhile, have moved well ahead of federal standards in regulating PFAS. Wisconsin provides a notable recent example: in June 2025, the Wisconsin Supreme Court confirmed that the Wisconsin Department of Natural Resources has broad authority to regulate PFAS as hazardous substances under the state’s Spills Law, without the need for additional rulemaking.⁴ That decision has already been applied in practice, with WDNR issuing Responsible Party notifications in connection with PFAS contamination in Oneida County⁵. Similar regulatory activity is underway in Michigan, Minnesota, New Jersey, California, and a growing number of other states.

Beyond regulatory enforcement, PRPs also face exposure from private plaintiffs, including property owners, municipal water systems, and individuals who allege that PFAS contamination has diminished property values, impaired drinking water supplies, or caused personal injury. These third-party claims add a litigation overlay to what might otherwise be a purely regulatory matter, and they expand the range of damages for which coverage may be available.

The cumulative picture is this: the PFAS liability exposure of many businesses and municipalities is real, it is growing, and it reaches back to a time when the use of these compounds was entirely lawful and largely unregulated.

Insurance Coverage for Environmental Damages and the Barrier of the Absolute Pollution Exclusion

For businesses facing environmental liability, the natural question is whether their commercial liability insurance will respond. For most parties holding current CGL policies, the answer is almost certainly no, at least for PFAS and other environmental contamination claims. The reason lies in a sweeping policy exclusion that became standard in the insurance industry in 1986: the “absolute pollution exclusion.”⁶

Prior to 1986, CGL policies typically contained only a qualified pollution exclusion, which excluded coverage for pollution that was expected or intended by the insured, but preserved coverage for sudden and accidental releases. Courts often interpreted this provision broadly, finding that even gradually occurring contamination could qualify as unexpected and thus covered.⁷

The insurance industry’s response was to revise the standard CGL form in 1986, adding language that categorically excluded coverage for bodily injury or property damage arising out of the discharge, dispersal, release, or escape of pollutants. Critically, “pollutants” were defined broadly to include virtually any irritant or contaminant, a definition that many courts have applied to include hazardous substances, industrial chemicals, and emerging contaminants like PFAS. The absolute pollution exclusion has effectively closed the door on environmental coverage for many policies issued after 1986, although some jurisdictions, including Indiana, have adopted narrower interpretations of the exclusion.

This means that for PFAS releases that occurred entirely within the post-1986 period, or for parties relying solely on current insurance, coverage is generally unavailable, unless provided by environmental insurance with intentional pollution coverage. Critically, however, for releases that occurred prior to 1986, the older CGL policies that were in force at the time of those releases did not contain the absolute pollution exclusion. Those policies may still respond to covered claims arising from occurrences during the policy period. And for releases of PFAS that trace back to the 1950s, 1960s, 1970s, or early 1980s, those policies represent a potentially substantial source of financial recovery.

Insurance Archaeology: Finding Yesterday’s Policies to Pay for Today’s Claims

Insurance archaeology is the process of locating and documenting historical insurance policies that may no longer be in an organization’s active records. As identified by co-author Kristen Drake of PolicyFind, it is “the process of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies.”⁸ The analogy to traditional archaeology is apt: just as an archaeologist reconstructs the past from physical evidence, an insurance archaeologist reconstructs a historical coverage program from whatever documentary traces survive, including policy documents, premium receipts, board minutes, broker correspondence, financial statements, corporate filings, and archival records.

For organizations facing PFAS liability with roots in the pre-1986 era, insurance archaeology is not merely a useful exercise; it may be an essential one. Coverage counsel and insurance archaeologists working together have recovered insurance assets for clients facing legacy environmental, asbestos, and other long-tail liabilities.⁹ PFAS is the next major frontier for this work.

A foundational concept in understanding why historical CGL policies matter is the distinction between claims-made and occurrence-based policies. Under a claims-made policy, coverage is generally triggered when a claim is first made against the insured during the policy period, regardless of when the underlying exposure or event occurred. Under an occurrence-based policy, coverage is generally triggered when bodily injury or property damage occurs during the policy period. As a result, a claim may be asserted years or even decades later and still implicate historical occurrence-based policies if the injury or damage took place during those earlier policy periods.

Prior to 1986, most CGL policies were occurrence-based. This is why they remain valuable today. A policy that was in force in 1970, for example, may provide coverage for a PFAS release that occurred in that year, even though the claim arising from that release is not asserted until 2025. The policy period has long since ended, but coverage may still be available because the occurrence took place during the policy period. The insurer’s obligation to defend and indemnify against covered claims arising from that occurrence remains in force.

This is a concept that many policyholders and even some of their advisors find counterintuitive. But it is legally well-established, and it is the cornerstone of the case for pursuing historical coverage for PFAS.

In practice, locating pre-1986 CGL policies involve a detailed and often painstaking investigative process. The challenge is significant: fifty-year-old business records were routinely discarded, and most organizations today no longer have records identifying the insurance programs that were in place during that era. But the absence of internal records does not mean coverage did not exist or cannot be proven.

Insurance archaeology investigations typically unfold over a period of sixty to ninety days and involve multiple complementary research strategies. These may include review of surviving corporate records and board minutes; interviews with current and former employees, officers, and brokers; searches of state insurance department records and regulatory filings; review of financial statements and auditor’s workpapers that may identify insurance premiums as line items; examination of historical broker and agent records; searches of federal and state court records involving prior insurance disputes; and review of archival records held by former insurance carriers or their successors. Each investigation is customized to the specific history and structure of the organization.¹⁰

One common output of a thorough insurance archaeology investigation is a documented coverage chart, a chronological reconstruction of the organization’s historical insurance program that identifies the policies that existed, their limits, the carriers that issued them, and the terms and conditions relevant to coverage. That documentation forms the foundation for a coverage claim.

One additional practical consideration is the solvency of historical insurers. Some carriers that issued CGL policies in the 1960s and 1970s are no longer in business. However, this does not necessarily defeat a coverage claim. Many states have insurance guaranty funds that may provide protection for certain claims against insolvent carriers, subject to statutory limitations and caps. In addition, successor-in-interest analysis and other insurance recovery mechanisms may provide additional avenues. Coverage counsel with experience in historical policy claims will be familiar with these mechanisms and can advise accordingly.

Conclusion: Practical Strategies and Best Practices

For businesses, including, particularly, privately held businesses that have been in the control of a handful of owners for many years or decades, for municipalities, and for other PRPs facing, or anticipating, PFAS liability, the time to act is now. The regulatory and litigation environment is not static: it is intensifying, at both the federal and state level. Parties that delay in assessing their insurance assets may find that practical recovery becomes more difficult as memories fade, records are further lost, and coverage disputes become more complicated.

We offer the following practical strategies and best practices for organizations navigating this landscape:

1. Conduct a preliminary insurance audit. Before engaging a full insurance archaeology investigation, work with your coverage counsel to review whatever records currently exist. Corporate files, financial statements, broker records, and even premium payment histories can provide initial leads on the carriers and policy periods that are likely candidates for investigation.
2. Engage an insurance archaeologist with experience in environmental and other long-tail liabilities. Not all insurance consultants or brokers are equipped to perform true insurance archaeology. The forensic reconstruction of historical coverage programs requires specialized expertise in investigation methodology, document authentication, carrier succession, and coverage analysis. Engage a firm with a demonstrated track record in environmental and emerging contaminant claims. The investment is modest relative to the potential recovery.
3. Work with experienced coverage counsel. Identifying historical policies is the beginning, not the end, of the process. Presenting a successful coverage claim requires legal analysis of the policy language, the tender of claims in compliance with notice requirements, and often, litigation or arbitration against carriers that disclaim coverage. Environmental coverage litigation is a specialized field, and the quality of legal representation matters.
4. Don’t assume the absence of evidence means absence of coverage. Many organizations conclude too quickly that they have no historical coverage because internal records do not reflect it. That conclusion is often wrong. Insurance archaeology routinely locates policies that clients believed no longer existed. The absence of a policy in your file room is not proof that the policy was never issued.
5. Act before regulatory deadlines crystallize liability. The PFAS regulatory storm, including federal CERCLA designations, state hazardous substance programs, and drinking water standards, is already driving rapid identification of PRPs. Once a party has been identified as responsible, the pressure to respond and incur costs escalates. Having historical coverage in place before that moment arrives creates leverage and financial security.
6. Evaluate your full corporate and operational history. For businesses that have been through mergers, acquisitions, divestitures, or reorganizations, the analysis of which entity holds coverage and for which operations require careful historical reconstruction. Insurance archaeology and corporate history reconstruction often go hand in hand, particularly for complex organizations.
7. Consider the full range of potential claims. Pre-1986 CGL policies may respond not only to environmental cleanup costs under CERCLA or state law, but also to third-party bodily injury and property damage claims, legal defense costs, and regulatory response costs. The full scope of available coverage should be evaluated by qualified counsel.

The PFAS era has arrived. The liability it imposes looks backward in time, to releases that occurred when these compounds were in widespread, lawful use and when the regulatory framework had not yet caught up. The insurance industry, for its part, changed its standard policy form in 1986, but the policies that predate that change remain in force and may provide coverage that is now worth pursuing. For businesses and municipalities that used or released PFAS prior to 1986, conducting a thorough insurance archaeology investigation is not merely prudent; it may be one of the most valuable legal and financial steps they can take.

Edward (Ned) B. Witte, a Partner at Witte Davis Law, is nationally recognized for his work on emerging contaminants and PFAS.

Kristen Drake is President and Lead Insurance Archaeologist at PolicyFind, an insurance archaeology firm.

Lindene Patton is a Partner at Earth & Water Law, LLC, with broad expertise in environmental risk, insurance coverage, and emerging chemical liability.

Endnotes

¹ Ian T. Cousins et al., Outside the Safe Operating Space of a New Planetary Boundary for Per- and Polyfluoroalkyl Substances (PFAS), 56 Envtl. Sci. & Tech. 11172 (2022). Researchers from Stockholm University and ETH Zurich found that PFAS levels in rainwater, surface water, and soils now globally exceed safety guidelines, including in remote locations such as Antarctica, concluding that PFAS contamination has exceeded a new planetary boundary for chemical pollution.

² In November 2023, a working group of thirty international scientists convened by the International Agency for Research on Cancer (IARC) classified PFOA as a Group 1 human carcinogen, based on sufficient evidence in experimental animals and strong mechanistic evidence in exposed humans, including immunosuppression and epigenetic alterations, as well as limited evidence of renal cell carcinoma and testicular cancer. PFOS was classified as Group 2B (possibly carcinogenic to humans). See, for example, S. Zahm et al., Carcinogenicity of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS), 25 Lancet Oncology 16 (2024); see, also, the United States Environmental Protection Agency document “Our Current Understanding of the Human Health and Environmental Risks of PFAS,” (last updated on April 21, 2026), https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas,

³ EPA Fuels the PFAS Storm and Moves to Keep CERCLA Rule in Place, Witte Davis Law Blog (2025), available at wittedavis.com.

⁴ Wisconsin Supreme Court Upholds State Cleanup Program and WDNR Authority to Regulate PFAS, Witte Davis Law Blog (2025), available at wittedavis.com.

⁵ Wisconsin DNR Cites Its Supreme Court-Backed PFAS Authority in Town of Stella Responsible Party Notifications, Witte Davis Law Blog (2025), available at wittedavis.com.

⁶ In addition to the absolute pollution exclusion, the industry created a “total pollution exclusion” to address court rulings that held that some coverage remained notwithstanding the absolute pollution exclusion. This policy language and interpretation area is highly complicated and complex, with exceptions, grants and rulings that are beyond the scope of this article.

⁷ See Wolverine World Wide, Inc. v. American Insurance Co., No. 1:19-cv-10, 2021 WL 4841167 (W.D. Mich. Oct. 18, 2021) (holding that a pre-1986 CGL policy’s pollution exclusion did not bar a duty to defend for PFAS releases dating to 1958). Compare Wolverine, however, with Tonoga, Inc. v. New Hampshire Insurance Co., 201 A.D.3d 1091 (N.Y. App. Div. 2022) (holding that the “sudden and accidental” exception did not apply where it could be established that PFAS were knowingly discharged as part of manufacturing processes over a period of many years, illustrating that coverage analysis may turn on the specific facts of the release and the policy language at issue).

⁸ Kristen Drake, Insurance Archaeology: From Niche to Necessity, PolicyFind (May 2024), available at policyfind.com.

⁹ Kristen Drake, The Role of Insurance Archaeology in Asbestos Litigation, PolicyFind (September 2025), available at policyfind.com.

¹⁰ Kristen Drake, Turning Discovery Into Dollars: Real-World Results of Insurance Archaeology, PolicyFind (December 2025), available at policyfind.com (describing, among other examples, the successful location of a 1981 general liability policy for a business facing state environmental cleanup demands, demonstrating that pre-1986 coverage can be located and applied to environmental response costs even decades after the underlying releases occurred).