PFAS Litigation Updates

FILTER BY STATE

CA, DC, DE, FL, GA, MI, MN, NJ, NM, NV, NY, NC, OH, SC, WA

The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

Please note, a subscription may be required to view some of this content.

 

Read the PFAS Primer Quarterly Update

Subscribe
Previous Issues

Court Preliminarily Approves $750 Million PFAS Settlement Between Tyco and Water Providers

Johnson Controls subsidiary Tyco Fire Products LP—a manufacturer of AFFF, a firefighting foam that is alleged to contain or degrade into PFAS—agreed to a $750 million settlement to resolve PFAS contamination claims brought by a class of public water systems in the AFFF MDL pending in the District of South Carolina. The district court issued its preliminary approval of the settlement, observing that the proposed settlement agreement was fair, reasonable, and adequate while also overruling a limited number of objections. The court scheduled the final fairness hearing for November 1, and in the meantime, public water systems can opt out of or object to the settlement.

June 11, 2024 | In re Aqueous Film-Forming Foams Products Liability Litigation, No. 2:24-cv-02321 (D.S.C.).

Coca-Cola Defeats PFAS-Related Claims

Coca-Cola won a motion to dismiss claims alleging that the company’s Simply Tropical Juice Drink—which the company advertised as “made simply” with “all-natural ingredients”—was falsely labeled because it purportedly contained PFAS. In granting Coca-Cola’s motion to dismiss for lack of Article III standing, the district court emphasized that, while the plaintiff claimed that he conducted independent testing on a “sample” of the product in July 2022, the plaintiff did not test the product he actually purchased for PFAS. The court also noted that the plaintiff did not allege that the presence of PFAS in the product was so widespread that it was plausible that he purchased a mislabeled product. The district court granted Coca-Cola’s motion, while granting the plaintiff leave to amend to address the pleading deficiencies.

June 10, 2024 | Lurenz v. Coca-Cola Company, No. 7:22-cv-10941 (S.D.N.Y.).

Fourth Circuit Affirms EPA’s Approach to PFAS Testing Under the TSCA

Pursuant to the Toxic Substances Control Act (TSCA), several North Carolina–based citizens groups petitioned the EPA in 2020 to initiate testing of 54 individual PFAS. The EPA responded by agreeing to test seven of the PFAS and to potentially test nine more. The groups viewed this as a denial of their petition and, in 2021, sought judicial review pursuant to a TSCA provision. A North Carolina district court dismissed the groups’ claims for lack of jurisdiction, and the groups appealed. The appeal was resolved when the Fourth Circuit affirmed the district court’s dismissal. The Fourth Circuit held that the EPA’s agreement to test (and potentially test) a subgroup of PFAS constituted a “grant” of the groups’ petition and therefore did not provide the groups with the right to judicial review under the TSCA.

June 10, 2024 | Center for Environmental Health v. EPA, No. 23-1476 (4th Cir.).

Water Utilities Challenge EPA’s New PFAS Drinking-Water Regulations

Two water utility associations have petitioned the D.C. Circuit for review of the EPA’s first national drinking-water rule for PFAS, claiming that is arbitrary and capricious, unreasonable, and unfeasible. In doing so, the associations allege that the EPA did not rely on the best available science, follow the process mandated by Congress, or properly assess the costs of implementation when finalizing the rule. The associations also conveyed their serious concerns about the potential negative impact that the rule may have on low-income households. Manufacturing and chemical industry groups have also challenged the rule in a separate petition.

June 7, 2024 | American Water Works Association v. EPA, No. 24-1188 (D.C. Cir.).

EPA Orders U.S. Air Force and Arizona Air National Guard to Treat PFAS

In a rare step, the EPA issued a Safe Drinking Water Act (SDWA) Section 1431 unilateral administrative order to the U.S. Air Force and Arizona Air National Guard requiring them to conduct measures to abate the “actual and potential imminent and substantial threat to the health of persons presented by the presence of [PFAS] in groundwater underlying the Tucson Area Remediation Project (‘TARP’) water well field” that serves as a drinking-water source. The EPA required the submission of a PFAS water treatment plan within 60 days, which is unprecedented for PFAS. The agency previously issued an order for PFAS cleanup at the Pease Air Force Base in New Hampshire, but that was before the EPA adopted maximum contaminant levels for six PFAS and designated PFOA and PFOS as hazardous substances. The EPA’s action signals its intent to use its authority under the SDWA to order cleanups of PFAS when there is an “imminent and substantial endangerment to the health of persons” and when it believes local authorities have not acted sufficiently.

May 29, 2024 | In the Matter of The United States Air Force and Arizona Air National Guard, No. PWS-AO-2024-10.