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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Previous Issues

New Jersey Appellate Court Rejects Challenge to State’s Drinking Water and Groundwater Rules for PFAS

A New Jersey state appellate court affirmed the New Jersey Department of Environmental Protection’s (DEP) rule amendments setting maximum contaminant levels (MCLs) for PFOA and PFOS in New Jersey drinking water and groundwater. The appellants argued that the DEP failed to comply with New Jersey’s Administrative Procedure Act (APA) because it provided an insufficient cost analysis and gave cursory and dismissive responses to comments. Appellants also argued that the DEP adopted standards for wastewater without an approved laboratory testing method for quantifying PFOA and PFOS in wastewater. The appellate court held that the DEP complied with the APA in its proposal and adoption of the rule amendments. The court also held that in the absence of federal analytical standards, the DEP was permitted to prescribe more than one approved testing method for contaminants.

August 23, 2023 | In Re Appeal of the New Jersey Department of Environmental Protection’s June 1, 2020, Adopted Amendments, No. A-0307-20 (N.J. Super. Ct. App. Div.).

In a Win for 3M, Appellate Court Overturns Michigan’s Rules for PFAS in Drinking Water

The Michigan Court of Appeals struck down some of the country’s most stringent standards for regulating PFAS in drinking water. 3M Company had argued that the rulemaking process behind those standards was invalid because the state failed to take certain costs into account. Specifically, 3M argued that Michigan’s Administrative Procedures Act required the state to calculate the cost that businesses would incur to comply with the groundwater cleanup criteria imposed by the new regulations. A divided panel of the appellate court agreed. The state environmental department has indicated that it will appeal to the state supreme court.

August 22, 2023 | 3M Company v. Department of Environment Great Lakes and Energy, No. 364067 (Mich. Ct. App.).

New Suit Alleges That School Uniforms Containing PFAS Pose “Health Dangers” to Children

A class action suit alleges that a national children’s apparel company violated Illinois’ Consumer Fraud and Deceptive Business Practices Act by knowingly designing, manufacturing, promoting, and selling school uniforms containing PFAS. According to the complaint, recent studies have shown varying levels of PFAS in school uniforms, including those sold by the defendant. At issue are failure to warn, fraudulent concealment, breach of implied warranty, and unjust enrichment claims, as well as the claim under the state’s deceptive trade practices statute.

July 27, 2023 | Garland v. The Children’s Place Inc., No. 1:23-cv-04899 (N.D. Ill.).

Judge Throws Out PFAS Litigation in Hamptons for Lack of Standing

A New York district judge dismissed a complaint brought against the federal government by four East Hampton, New York residents seeking to halt construction of the South Fork Wind Farm and the South Fork Export Cable Project, an offshore wind facility. According to the residents, the onshore trenching caused by the South Fork Export Cable Project would allegedly worsen existing PFAS contamination in their private wells. The residents maintained that the federal government was at fault for issuing permits for the project without sufficiently considering the possibility of additional PFAS contamination. The government moved to dismiss for lack of standing, explaining that while it issued permits to construct the offshore wind farm, the New York Public Service Commission was responsible for issuing permits for the onshore route of the South Fork Export Cable Project, which included the trenching that the residents complained of. Because the residents could not show causation, the government claimed the residents lacked standing. The judge agreed with the government and dismissed the complaint.

July 17, 2023 | Mahoney, et al., v. U.S. Department of the Interior, et al., No. 2:22-cv-01305 (E.D.N.Y.).

3M Pays $10.3 Billion to Settle PFAS Liability With Water Systems

3M has reached a $10.3 billion settlement with public water systems over drinking water contamination linked to use of AFFF containing PFAS. The landmark 3M agreement will see the company pay PFAS treatment and testing at water systems that have detected contamination or do so in the future, while avoiding any admission of liability. The deal is still subject to judicial approval.

City of Stuart, Florida v. The 3M Co., et al., No. 2:18-cv-03487 (D.S.C. June 22, 2023).
In re Aqueous Film-Forming Foams Products Liability Litigation, No. 2:18-mn-02873
(D.S.C. June 22, 2023).