USA – ALABAMA Trends and Developments Contributed by: John M. Johnson, Brian P. Kappel, Mary Parrish McCracken and M. Elizabeth Harrison, Lightfoot, Franklin & White, LLC
cated it intends to extend the compliance deadline to 2031. In addition, the EPA and other state regulatory bodies were instructed to make available billions of dollars in grants and low-interest loans to water providers to assist them in studying, installing, operating and maintaining PFAS removal technologies and amelio- rate some of the financial burden of complying with the new regulations. The EPA acknowledged three known water treatment options to remove PFAS: fil- tration through granular activated carbon (GAC), fil- tration through ion exchange resin (IEX), and use of nanofiltration or reverse osmosis (RO) membranes. Of the three options, the EPA suggested that GAC and IEX should be the most commonly used, since they are viewed as easy to operate and relatively low cost. As usual for emerging litigation, the cases initially involved a wide range of causes of action. Due to recent court decisions, however, avenues for relief have narrowed. The Alabama Supreme Court and sev- eral trial courts have issued decisions potentially elimi- nating various PFAS-related causes of action. Future appellate review of pending cases is certain, and even more limit-defining decisions are anticipated. Ex parte DuPont De Nemours, Inc. The Alabama Supreme Court’s 4 April 2025 decision in Ex parte DuPont De Nemours, Inc. is significant for several reasons. In this case, several of the defend- ants sought and were granted a writ of mandamus directing the trial court to dismiss all of the City of Gadsden’s claims against them on statute of limita- tions grounds. Two primary issues drove the deci- sion. First, the Alabama Supreme Court considered and agreed with the defendants that Gadsden had actual or constructive knowledge of its claims against them in light of an earlier-filed lawsuit (dating to 2016) in which Gadsden had alleged PFAS-related claims against a number of other parties. Gadsden argued that the PFAS at issue in the later-filed Ex parte DuPont De Nemours, Inc. matter were different in nature and scope from the PFAS at issue its prior case, but the Alabama Supreme Court disagreed. The court not- ed that the facility Gadsden intended to build would remove all PFAS, no matter the source, and that the EPA’s LHAs and MCLs were a common issue in both
cases. Accordingly, the Alabama Supreme Court held that the statute of limitations for Gadsden’s claims began to run at the very latest upon the filing of its first case in 2016 and that the Ex parte DuPont De Nemours, Inc. claims dating to 2024 were therefore filed out of time. The Alabama Supreme Court’s decision likely cre- ates a significant temporal limitation on water-based claims under Alabama law due to the state’s two-year statute of limitations for negligence and many other tort claims. The more restrictive LHAs issued in 2016 and 2022 put drinking water providers across the country on notice of potential claims they might have for PFAS contamination of their raw water sources. ADEM notices to certain providers within Alabama where PFAS measured above the limits set by those LHAs provide additional possible starting points for the statutory limitations period. The EPA’s issuance of draft and then final MCLs for several PFAS – along with the duty to perform sampling to confirm the pres- ence or absence of those PFAS in finished/treated water – also put potential plaintiffs on notice of their possible claims. The Alabama Supreme Court’s deci- sion rejecting Gadsden’s attempt to parse out its knowledge of certain PFAS in its raw water means that all Alabama providers are at risk of their claims being statutorily foreclosed based upon one or more of these regulatory actions. The second significant piece of the Ex parte DuPont De Nemours, Inc. decision was the Alabama Supreme Court’s ruling that a continuing trespass theory does not apply to conduct that the alleged tortfeasor has ceased. Gadsden alleged that it continued to feel the effects of PFAS long after the defendants stopped selling PFAS-containing products, asserting that each new impact restarted the statute of limitations for its claims. The Alabama Supreme Court disagreed. It held that it is the defendants’ conduct within the limitations period (not the consequences felt by the plaintiff) that is essential for application of the continuing tort doc- trine. This result serves to foreclose claims against defendants in Alabama for claims based on historical and dated sales of products or other materials that create environmental contamination well after use and disposal, particularly when those defendants (like the
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