By Sean P. Dwyer
Since the 1970’s, the presence of artificial turf on sports fields across the nation has dramatically increased. For years, manufacturers and proponents of artificial turf have touted it as “the playing field of the future” promoting it as a durable, low maintenance and cost-effective alternative to grass. The Synthetic Turf Council trade group estimates there’s about 3,500 full-size artificial turf fields in the United States and that new fields are being installed at a rate of 900 to 1,000 per year. With the advancement of technology, these synthetic surfaces have been designed to be softer, safer and to help prevent injuries.
But there are increasing concerns that some synthetic fields — particularly artificial surfaces that have been in place for years — are contaminated with lead and pose a health hazard to children, athletes and others who use them. Recently, in the New York and New Jersey regions alone, a half-dozen artificial fields that have been in use for over ten years have been closed because of a concern about high levels of lead in the turf fibers. The threat of lead contamination in old turf has given way to a growing wave of concern over newer types of artificial turf. While newer fields are made from polyethylene and polypropylene, plastics commonly used to make everything from grocery bags to food containers, they often feature longer strands of plastic “grass” and rubber from recycled car and truck tires. These bits of recycled tires, known as “crumb rubber”, provide a cushioned surface that mimics natural turf during sports play. While scientific studies have yet to confirm the extent, if any, of a health hazard, crumb rubber has been suspected to contain hazardous substances including polycyclic aromatic hydrocarbons and heavy metals, such as lead.
The well publicized concerns about artificial turf have created ripples nationwide, prompting multiple investigations on both the state and federal levels of artificial surfaces and raising anxiety among health and elected officials, some of whom want to ban new installations until government agencies study the potential health risks and environmental hazards. Earlier this year, the U.S. Environmental Protection Agency and the U.S. Consumer Safety Product Commission have both commenced independent investigations into the environmental impact of artificial turf and the potential for hazardous lead exposure.
Beyond federal regulatory action, the New York State Legislature has introduced legislation, Bill #A9503-Englebright / #S6531-Alesi, to place a six-month moratorium on building new artificial turf fields in New York and conduct a study on the possible health impacts of crumb rubber and artificial turf. While this bill has just entered its second round of reviews, it is predicted that the measure will pass in the state legislature within the next few months. New York State is not alone in this endeavor. Many other states and local municipalities across the nation have initiated their own independent reviews of the safety of artificial turf.
With the wave of adverse media attention and the potential for liability exposure, schools and sports facilities owning fields with artificial turf are well advised to conduct a risk management assessment and a review of existing insurance coverage policies. Today’s standard liability policy forms typically contain exclusions that may undermine the ability of an artificial field owner to obtain coverage. One common exclusion, for example, bars coverage costs from damage to one’s own property or product without actual damage or injury to a third party. Still, another common exclusion includes a broad pollution exclusion barring coverage for liabilities arising from environmental exposures.
Conversely, schools and sports facilities intending on installing artificial turf playing fields should carefully review and evaluate the coverage and exclusions that may apply to the playing field before purchasing insurance. Potential environmental exposures must now be identified and addressed when coverage is procured. Insurance policies, like any contract, can be negotiated at inception to attempt to address the risks associated with artificial turfs.
A proactive risk management strategy for a sports facility owner must now include contract negotiations during construction and installation of the field which includes comprehensive indemnity provisions and the proper allocation of risk. Ensuring survival of those indemnity obligations after completion of the project is equally critical. Moreover, a facility owner may want to confirm that its applicable general liability policy contains a pollution exclusion with a “carve out” for products pollution. If a provision of this nature cannot be negotiated, stakeholders in the construction process can purchase a contractor’s pollution liability insurance policy which will provide indemnity and defense obligations after the project is accepted by the owner. As a further alternative, a facility owner may wish to purchase pollution legal liability coverage which will provide the owner with dedicated limits and contains an absolute duty to defend the owner in the event of a claim or litigation.
Even if a risk cannot be fully transferred, the mere exercise of considering what risks are covered facilitates planning. In all, there are a variety of commercial insurance products on the market that directly underwrite pollution liability. If a “turf war” does break out, the effective management of risk will depend on whether a school or sports facility sought proper counsel and guidance today to explore potential environmental exposures that will likely arise in the future.
Sean Dwyer is a partner at Havkins, Rosenfeld, Ritzert & Varriale. He can be reached at Sean.Dwyer@hrrvlaw.com
