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

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.)

District Court Stays Litigation Challenging de Minimis Exemption for PFAS TRI Reporting

The U.S. District Court for the District of Columbia stayed litigation challenging de minimis exemptions for PFAS Toxic Release Inventory (TRI) reporting. The plaintiff environmentalists’ suit alleges the EPA’s rule allowing the de minimis exemption to apply to PFAS violates the Emergency Planning and Community Right-to-Know Act, the federal law authorizing TRI, as well as the National Defense Authorization Act for Fiscal Year 2020, and allows companies to allegedly evade reporting PFAS that would otherwise be disclosed. In its January 3, 2023 order, the court cited judicial economy and unlikely harm to plaintiffs in granting the EPA’s stay request. The EPA’s primary argument in support of its motion to stay was that the agency is currently engaged in rulemaking, the outcome of which would likely moot the dispute.

January 3, 2023 | National PFAS Contamination Coalition, et al. v. U.S. Environmental Protection Agency, et al., No. 1:22-cv-00132 (D.D.C. Jan. 3, 2023).

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.)

Sixth Circuit Panel Affirms $40 Million Verdict Against DuPont for Alleged PFAS Contamination

A Sixth Circuit panel affirmed the district court’s decision to award a plaintiff a $40 million verdict against E. I. du Pont de Nemours & Co.’s (“DuPont”) for allegedly contaminating drinking water with PFAS, and in so doing, causing the plaintiff’s testicular cancer. The Sixth Circuit panel agreed with the lower court’s decision to apply collateral estoppel (i.e., issue preclusion) to the questions of duty, breach, and foreseeability in the present case based on how they were previously decided in the previous trials in this multidistrict litigation.

December 5, 2022 | In re: Travis Abbott v. E. I. du Pont de Nemours & Co. Case No. 21-3418 (6th Cir.)