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

Environmental Groups in North Carolina Revive Lawsuit Seeking Chemours Testing on 54 PFAS

The New Jersey Department of Environmental Protection seeks a court order requiring E.I. du Pont de Nemours and Company to formally set aside $943 million for remediation of contamination stemming from a Salem County plant, contending the company has dodged the statutorily required obligation for more than seven years. The DEC says that under the New Jersey Industrial Site Recovery Act and the New Jersey Brownfield and Contaminated Site Remediation Act, DuPont is required to establish a remediation funding source, but after years of negotiation and remediation, no such proper source has been established.

January 28, 2022 | New Jersey Department of Environmental Protection, et al. v. E.I. du Pont de Nemours and Company (D.N.J.)

Environmental Groups in North Carolina Revive Lawsuit Seeking Chemours Testing on 54 PFAS

In 2020, the Center for Environmental Health and other groups petitioned EPA to require Chemours to conduct studies on 54 different per- and polyfluoroalkyl substances, or PFAS, they contend are putting hundreds of thousands of North Carolina residents at risk. The Trump administration rejected the petition in January 2021, and the groups filed their complaint in California federal court in March 2021. The Biden administration said it would reconsider the matter and the groups paused the lawsuit, which was filed under Section 21 of the Toxic Substances Control Act (TSCA). In December, EPA partially granted the groups’ petition. In January, the Northern District of California allowed the litigation to resume. The groups complained that EPA only agreed to require limited testing on 7 of 54 of the PFAS that it announced would be tested under its general PFAS testing strategy. According to the groups’ complaint, Chemours makes the 54 PFAS at its chemical production facility in Fayetteville, North Carolina, allegedly impacting local residents through drinking water, air emissions, surface water, sediment, stormwater, groundwater, and locally grown produce. EPA noted in a court filing that it intends to petition the court to move the case to North Carolina federal court.

January 27, 2022 | Center for Environmental Health, et al. v. EPA, (N.D.C.A.)

Insurers Avoid Obligation to Defend New York Manufacturer, Tonoga, Against PFAS Suits

A five-judge panel in New York state appellate court affirmed a lower court’s ruling that two pollution exclusions apply in Tonoga Inc.’s general liability insurance policies with New Hamshire and Granite State Insurance Cos. From 1961 until 2013, Tonoga manufactured materials coated with nonstick, heat-resistant synthetic polymer polytetrafluoroethylene. Its manufacturing process created byproducts of PFOA and PFOS. In 2016, Tonoga entered into a consent agreement with New York’s Department of Environmental Conservation after high levels of PFOA and PFOS were found in the local municipal water supply. Tonoga sought defense and coverage from the two insurers while facing the DEC administrative proceeding and six other lawsuits. Both policies contained pollution exclusion language barring coverage, to different degrees, for the release of pollutants into the surrounding environment. While Tonoga argued the insurers failed to show that PFOA and PFOA were “pollutants” under the definition of its policies, the lower court and appellate penal held that PFOA and PFOA were pollutants within the meaning of the exclusion, creating no duty to defend the lawsuits.

January 6, 2022 | Tonogo, Inc., Doing Business as Taconic v. New Hampshire Insurance Company, et al, (N.Y. Supreme Court, Appellate Division)

Southern District of New York Dismisses Contamination Suit Against DuPont and Denies Successor Jurisdiction Against DuPont Entities

The Southern District of New York dismissed without prejudice a lawsuit filed by water management company Suez Water New York Inc. against E.I. du Pont Nemours & Company and its spinoffs for allegedly contaminating the state’s waterways and groundwater through the manufacture and disposal of perfluoroalkyl and polyfluoroalkyl substances. The court determined that Suez Water’s claims were “general and sparse” and did not allege facts that would establish that the conduct of DuPont was a substantial factor in the alleged injury. The court further disagreed with Suez Water that E.I. du Pont de Nemours & Company and its entities, DuPont de Nemours Inc., Corteva Inc., and The Chemours Co. could be sued under successor jurisdiction, finding no “continuity of ownership” between the separate entities.

January 4, 2022 | Suez Water New York Inc. v. E.I. Du Pont de Nemours and Company, et al, Civil Action No. 20-cv-10731 (S.D.N.Y.)

New Jersey Court Denies Dismissal of DuPont Entities in Contamination Suit

A New Jersey federal court refused to dismiss DuPont de Nemours Inc., also known as “New DuPont,” and Corteva Inc.’s motion to dismiss the two entities from a lawsuit filed by the New Jersey Department of Environmental Protection. The state’s lawsuit alleges that E.I. du Pont de Nemours & Company, known as “Old DuPont” polluted the surface water, groundwater, and soil at four of its sites. New DuPont and Corteva argued they aren’t responsible for any of the actions of Old DuPont because they didn’t exist when it happened and Old DuPont still exists, holds substantial assets, and can be sued by the state. The court held that New Jersey presented adequate pleading that New DuPont and Corteva were created, in part, to elude liability for Old DuPont’s behavior, and that limited jurisdictional discovery would assist in further determining the issue.

December 8, 2021 | New Jersey Department of Environmental Protection, et al v. E.I. Du Pont de Nemours and Company, et al, Civil Action No. 19-14758 (D.N.J.)