blog.cuyler.com

Recent local news reports address actions being taken in response to lead contamination associated with artificial turf fields at New Jersey recreational facilities, including school playing fields. News items like these, and similar ones, like the less-recent Kiddie Kollege fiasco, which led to intensive NJDEP action regarding day-care centers, reemphasize the need to think about environmental risk before a problem arises.

The reports in the papers indicate that the measured lead levels may result from lead compounds used to color the nylon utilized in turf products distributed several years ago. At least for now, the turf itself would appear to be a source of the lead contamination, in whole or part. But it also seems reasonable to consider that one or more of these playing surfaces may sit on a field in an urban, highly-industrialized area of our state, essentially a brownfield, where increased lead levels may be historical in the soils and nearby structures. Obviously, step one is to investigate the situation and understand it so that all reasonable and necessary measures are taken.

But regardless of what the science ultimately shows, as in any situation like this, the recent findings will generate heat, and will have financial costs, at a minimum in the form of investigative work, and field surface replacement, since some fields are already being ripped out. At least three hot-button issues are in play here — protection of childrens’ health, environmental risk and urban - center quality of life. Where there are unexpected costs and issues like these, litigation is a distinct probability.

Typically, one of the first places we look when unexpected costs, especially cost associated with possible bodily injury arise, is liability insurance. To be sure, those who find themselves in the path of this issue have been calling their risk managers, brokers and lawyers, and policies are being pulled out and read. What they find there may or may not be reassuring. Today’s standard liability policy forms would contain exclusions, for example, barring coverage costs from damage to one’s own property or product without actual damage or injury to a third party, as well as a broad so-called absolute pollution exclusion barring coverage for liabilities arising from pollution. Of course, standard insurance policies, like any contract, can be negotiated at its inception to attempt to address the risk of the insured, and even if a risk cannot be transferred, the mere exercise of considering what risk is covered, and what is not, earlier rather than later, facilitates planning. There are commercial insurance products on the market for many years that directly underwrite so-called “pollution liability”. If a turf-war does break out, the degree of insurance protection available may depend on whether those with exposure today sought proper advisors, including lawyers and insurance brokerage personnel, to think about potential environmental exposures of their client and tried to identify and manage such risks when the coverage was procured.