Forensic Techniques for Establishing the Origin and Timing of a Contaminant Release

Common issues in environmental coverage cases include determination of the origin of the contaminant release, the timing of the release, the distribution of the contamination in the subsurface and the reasonableness of the alleged remediation costs. Of these issues, the origin and timing of a release is pivotal and frequently the most difficult to resolve. The timing of a release and whether it is sudden and accidental is especially relevant given that it is foundational as to when a particular insurance policy is “triggered.” ^{1 , 2} The selection of triggering theories such as “exposure” (or when the property was exposed to hazardous waste), “manifestation” 146(or discovery of the contamination), ^{3 , 4 , 5 , 6 , 7} “injury in fact” (or the date on which the property damage occurred), ^{8 , 9} and “continuous trigger” (or the continuous damage to property throughout all policy periods) are all influenced by the ability to identify the timing of a release.