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

Case Challenging New Mexico Air Force Cleanup Dismissed

A New Mexico district court found that the New Mexico Hazardous Waste Act requires that administrative appeals related to permits issued under that statute be heard in the New Mexico Court of Appeals. That meant the federal court lacked jurisdiction to decide whether the New Mexico Environment Department exceeded its authority by requiring the cleanup of PFAS at the Cannon Air Force base near Clovis, New Mexico.

August 18, 2022 | United States of America v. New Mexico Environment Department Case No. 19-CV-46 (D.N.M)

Chemical Industry Group Challenges EPA Interim Drinking Water Health Advisories for PFOA and PFOS

The American Chemistry Council (“ACC”) is challenging the interim EPA drinking water health advisories issued in June for perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”). ACC alleges that the advisories rely on faulty science and that by calling the standards “interim” the EPA is trying to circumvent proper procedure. Seeking to vacate the advisories, ACC argues that the health advisories issued by the EPA, which significantly lowered the levels at which PFOA and PFOS are deemed safe in drinking water, set “impossibly low standards” and that the failure to follow the required steps for establishing the standards makes them arbitrary and capricious.

July 29, 2022 | American Chemistry Council v. United States EPA Case No. 22-1177 (D.D.C.)

Chemical Company Challenges the EPA’s Drinking Water Health Advisory Regarding PFOA Substitutes Before the Third Circuit Court of Appeals

In July 2022, The Chemours Company (“Chemours”) filed suit against the EPA in the United States Court of Appeals for the Third Circuit, challenging the EPA’s recent drinking water health advisories regarding hexafluoropropylene oxide dimer acid (“HPFO dimer acid”) and its ammonium salt, which are two GenX chemicals commonly used as alternatives to PFOA. Chemours asserted that the EPA’s GenX health advisory is arbitrary and capricious due to the EPA allegedly incorporating toxicity assumptions that deviate from its own standard methods and incorrect and overstated exposure assumptions.

July 14, 2022 | The Chemours Co. FC v. EPA Case No. 22-2287 (3d Cir.)

Insurer Seeks Court’s Permission to Neither Defend nor Indemnify its Insured in PFAS Lawsuits

Admiral Insurance Company (“Admiral”) filed a complaint against one of its insured, Fire Dex, LLC (“Fire Dex”), seeking a declaration that it does not have to defend or indemnify Fire Dex in three underlying suits alleging that Fire Dex and other defendants manufactured, sold, and distributed fire protective gear and fire suppression foam containing PFAS, which allegedly caused various cancers in firefighters and their spouses. Fire Dex filed a motion to dismiss Admiral’s complaint, arguing that an Ohio state court is the preferred forum to resolve this case’s insurance coverage issues since they involve novel and unsettled matters of state law. On October 31, 2022, the court granted the motion to dismiss, holding that certain novel questions of law were best reserved for the Ohio state courts to answer in the first instance. Plaintiff filed a notice of appeal on November 28, 2022.

June 22, 2022 | Admiral Ins. Co. v. Fire-Dex, LLC Case No.: 1-22-cv-01087-PAB (N.D. Ohio)