PFAS Litigation Updates



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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AFFF Manufacturers Hit with Another State Attorney General Lawsuit

The State of Delaware has sued 14 chemical manufacturers alleging that “PFAS compounds traceable to the use and disposal of AFFF products in Delaware now contaminate natural resources.” Delaware’s complaint specifically identifies an airport and an air force base as key sites. It highlights facts relating to its failure to warn claim, including failure to provide appropriate instructions for preventing the release of PFAS into the environment. Delaware’s complaint is expressly limited to AFFF products.

October 26, 2023 |Delaware v. 3M Company, et al., No. N23C-10-272 (Del. Super. Ct.).

Federal Magistrate Judge Says Yes to Novel Civil RICO Claim

A federal magistrate judge has recommended allowing civil racketeering claims to proceed in a lawsuit over PFAS in the drinking water of a Massachusetts town. In 2022, several residents of the town filed suit asserting a federal RICO claim and other claims against various companies alleging a conspiracy to dump PFAS waste in a composting facility to avoid the high disposal cost associated with hazardous waste. Although the magistrate judge found the plaintiffs’ allegations against certain companies implausible, he nevertheless greenlit their RICO claims against the manufacturers allegedly dumping waste into the facility and the organic composting facility.

September 1, 2023 | Ryan, et al. v. Greif Inc., et al., No. 4:22-cv-40089 (D. Mass.).

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.).