PFAS Litigation Updates

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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.

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PFAS Regulation Likely to Spur Increased PFAS Litigation

Legal analysts forecast that PFAS-related lawsuits will continue to rise in 2023. The analysts assert that the EPA’s efforts to list PFOA and PFOS as hazardous substances under CERCLA, which will require facilities to report releases of PFAS and authorize the EPA to enforce cleanup efforts, and growing public awareness about PFAS and its health effects are responsible for this likely increase. Several plaintiffs in various suit involving PFAS have already stated that once the EPA finalizes its rule designating PFAS as a hazardous substance they will seek leave to amend their complaints to assert CERCLA cost-recovery claims. The EPA seeks to finalize this PFAS-designation rule before the end of 2023.

January 12, 2023 | Notice of Proposed Rulemaking: Designating PFOA and PFOS as CERCLA Hazardous Substances, U.S. EPA

DuPont and Chemours Seek Reconsideration Before Federal Court to Protect Attorney-Client Privileged Information

E. I. du Pont de Nemours (“DuPont”), the Chemours Company and the Chemours Company FC, LLC (together “Chemours”), the defendants in a multidistrict litigation case involving PFAS in aqueous film-forming foam, move a federal district court to reconsider its previous order to compel, which requires production of thousands of documents, or allow for an interlocutory appeal. DuPont and Chemours request, in full understanding that reconsideration is a serious remedy, that the court consider a procedural order from a previous case that helps evidence an agreement between the two defendants to prevent internal corporate information about PFAS cleanup liabilities from being released. Despite opposition from the plaintiffs, DuPont and Chemours assert that producing the documents that detail the exchanges between them regarding the manufacture and use of PFAS chemicals would violate the attorney-client privilege by disclosing confidential and privileged information.

January 5, 2023 | In re: Aqueous Film-Forming Foams Products Liability Litigation Case No. 2:18-mn-02873-RMG (D.S.C.)

DuPont Petitions the Sixth Circuit for a Full Review of a Decision Precluding Future Litigation in PFAS-related MDL

E. I. du Pont de Nemours (“DuPont”) petitions the Sixth Circuit to sit en banc and reconsider a three-judge panel’s ruling upholding a decision that granted the plaintiffs damages on their PFAS-related negligence claims and barred DuPont from relitigating several issues decided in previous litigation. Since the three-judge panel did not limit preclusion to only the identical issues between the cases, DuPont asserts that the present ruling conflicts with the black-letter law that collateral estoppel (i.e., issue preclusion) is inappropriate where divergent facts could lead juries to reach different conclusions – especially given the potentially broad and diverse circumstances of future plaintiffs in future, expansive multidistrict litigation.

January 3, 2023 | In re: E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation Case No. 21-3418 (6th Cir.)

The EPA Adds Nine PFAS Chemicals to TRI List and Wins Stay of PFAS Litigation in Federal District Court

The EPA automatically adds nine PFAS chemicals to the Toxics Release Inventory (“TRI”) list pursuant to the Fiscal Year 2020 National Defense Authorization Act (“NDAA”) and after finding some PFAS chemicals could no longer be claimed as confidential business information, and as a result, the persons/facilities required to annually report TRI data to the EPA must now include data on the nine additional PFAS chemicals. The EPA also adds PFBA, its anion, and related salts to the TRI list via the NDAA after finalizing their toxicity values. These additions coincide with a federal district court’s grant to stay litigation challenging two of the EPA’s rules regarding PFAS, including the EPA’s previous application of the de minimis exemption to PFAS reporting. The EPA moved to stay the litigation to complete the rulemaking process to list PFAS as “chemicals of special concern,” which would prevent any required reporter from utilizing the de minimis exemption to avoid PFAS reporting. Since the EPA’s rule would provide the plaintiffs the substantive relief they seek, the court granted the stay of litigation.

January 1 & 6, 2023 | Nat’l PFAS Contamination Coal. v. U.S. EPA (D.D.C.); EPA Requires Reporting on Releases and Other Waste Management for Nine Additional PFAS, U.S. EPA

The Third Circuit Denies EPA’s Motion to Move Forward with Chemours Company’s Review of PFAS Health Advisories

The Third Circuit denied the EPA’s motion to dismiss the Chemours Company FC, LLC’s (“Chemours”) petition to review the EPA’s health advisories for PFAS chemicals – rejecting the EPA’s argument that the advisories are simply informational tools rather than final agency rules. In its initial petition, Chemours asserted that the health advisories relied on faulty science and misinterpreted data. petition to review the health advisories

December 6, 2022 | The Chemours Co. FC, LLC v. U.S. EPA Case No. 22-2287 (3d. Cir.)