USA – ALABAMA Trends and Developments Contributed by: John M. Johnson, Brian P. Kappel, Mary Parrish McCracken and M. Elizabeth Harrison, Lightfoot, Franklin & White, LLC
Lightfoot, Franklin & White LLC The Clark Building 400 20th Street North Birmingham Alabama 35203 USA
Tel: +1 205 581 0700 Fax: +1 205 581 0799 Email: pmccauley@lightfootlaw.com Web: www.lightfootlaw.com
Complaints about water and air contamination have taken centre stage in Alabama in recent years. Both areas have seen recent developments in regulatory action. Water issues continue to lead to significant litigation within the state, with more lawsuits antici- pated in the future. This update addresses those areas in turn, with a focus on the projected impact of these legal decisions on environmental contamination cases. Water Regulation In June 2025, the Alabama Environmental Commis- sion, which oversees the Alabama Department of Environmental Management (ADEM), voted to adopt new water toxicity standards. These new standards mirror toxicity guidelines issued by the Environmental Protection Agency (EPA) in 2015 and have been sub- ject to years of debate in Alabama. ADEM is expected to propose the new standards in late 2025 through amendments to Alabama Administrative Code 335-6- 10, Appendix A. The regulation will revise acceptable limits for 12 substances: cyanide, 1,3-dichloroben- zene, 4,6-dinitro-2-methylphenol, ethylbenzene, tolu- ene, 2,4-dinitrotoluene, hexachloroethane, pentachlo- rophenol, trichloroethylene, 1,3-dichloropropylene, arsenic and 1,2,4-trichlorobenze. Water Litigation Litigation over alleged contamination of state water- ways and drinking water sources has led to several recent court decisions of note. These cases largely track two major national trends in environmental liti- gation: cases involving claims of contamination from per- and poly-fluoroalkyl substances, commonly
known as PFAS, and cases involving coal ash dis- posal locations or facilities involving coal combustion residuals or CCR. PFAS Over the past decade, the Alabama Supreme Court and multiple trial courts within the state have created and further developed a body of legal precedents set- ting new boundaries for the numerous PFAS cases filed within the state. Overall, PFAS litigation has followed a relatively predictable trend. Plaintiffs are typically municipal drinking water utilities or provid- ers that have identified levels of PFAS in their raw, untreated water source(s). Other plaintiffs include the subscribers who allegedly pay more for water treated to remove PFAS. These parties generally seek the present and projected future cost of removing those PFAS from raw water as part of the water treatment process. These cases generally involve one or both of the most well-studied PFAS: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The EPA first addressed PFOA and PFOS in 2009, issuing a life- time health advisory (LHA) for both compounds. The LHA was lowered significantly in 2016, and then again in 2022. It was also expanded in 2022 to account for additional PFAS. The EPA initially issued proposed maximum contaminant levels (MCLs) for PFOA and PFOS in March 2023 and formalised an MCL for other PFAS in April 2024. The EPA required all water pro- viders in the United States to test for the presence of PFAS in their finished drinking water by 2026 and to comply with the new MCLs by 2029. EPA has indi-
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