Last Word – Where Do Utility Legal Settlements for PFAS Stand?

With EPA’s National Primary Drinking Water Regulation for PFAS now finalized, the recently announced 3M and DuPont settlements, stemming from the ongoing Aqueous Film-Forming Foam (AFFF) Multi-District Litigation (MDL) promise access to billions of dollars to cover PFAS treatment and monitoring expenses for water systems across the county.

Faced with significant costs of treatment for PFAS contamination, over the past few years many water systems have filed lawsuits against PFAS manufacturers, seeking to hold the companies responsible for water pollution. These lawsuits have been grouped into the AFFF MDL that eventually led to the proposed PFAS class action settlements.

An MDL is a consolidated legal process in which multiple lawsuits filed by public water providers, property owners, personal injury plaintiffs, and sovereigns (such as states, territories, and tribes) from across the country have been grouped together.

All the lawsuits in the AFFF MDL claim that the plaintiffs have been negatively impacted by contamination stemming from the use of AFFF, a PFAS-containing firefighting foam, as well as other PFAS products. In an effort to resolve some of these legal claims, DuPont and its related companies, Chemours and Corteva, offered U.S. public water providers a settlement totaling $1.1859 billion in June 2023.

Shortly after the DuPont settlement was announced, 3M agreed to pay U.S. public water providers up to $12.5 billion over 13 years in settlement funds. DuPont’s settlement received final approval in February 2024, while 3M’s received final approval in March.

It is important to note that, although the settlements were proposed as a result of the AFFF MDL, they apply to all public water providers, regardless of whether they have filed a lawsuit or are part of the MDL.

The settlement class is defined as all public water systems in the United States that draw from a source that was tested for and found PFAS at any level and any system that is obligated to test under the fifth unregulated contaminant monitoring rule (UCMR5).

This means that even if a water system did not file a claim in the MDL, they are still subject to the settlements and may be eligible to receive compensation if they complete the appropriate forms and paperwork by the proper deadlines.

Water providers who did not opt-out of the settlements and had PFAS detections before late June 2023 (identified as Phase 1 systems), are now waiting for the District Court to finalize the deadline to submit the Settlement Claims Form.

Special needs claims forms for Phase One systems will be due 45 days after the settlement claims forms’ due date. A utility can expect no funding or recourse if forms are not submitted or if they are submitted incorrectly.

The deadline to submit the forms is expected to be finalized shortly. Communities that are eligible for the settlements and did not opt-out should start working on their claim forms, if they haven’t already, to ensure they have everything they need to proceed and are prepared to submit them in a timely fashion.

On the settlements’ website, water providers can estimate their settlement allocation based on their PFAS Score — the sum of PFOA and PFOS concentrations in water sources — and the adjusted flow rates drawn from impacted water sources based on 2013-2022 withdraw. With these data points, water providers can use the website’s Estimated Allocation Range Table to estimate their potential payout.

Because these are “opt out” settlements, water systems wishing not to participate in them had to affirmatively complete and submit the necessary paperwork by the above opt out deadlines. If your system did not submit such a request for exclusion from the PFAS water settlements in a timely manner, then it is a participant by default.

When determining your status, it is important to note that it is possible to be a participant in one settlement but not the other, as the DuPont and 3M settlements are separate and distinct. Thus, if your system did not wish to participate in either settlement, it needed to opt out of both. Once you have determined your participation status for each settlement, you can plan your next steps.

If your system successfully opted out of the settlements, it is vital to evaluate your situation and take the appropriate steps to recover PFAS cleanup costs incurred now or in the future. Keep in mind that litigation will be the only avenue to recover costs from 3M and DuPont.

Those who opted out and want to litigate against 3M and DuPont must first verify the court accepted their motion for exclusion. Utilities can confirm with the Notice Administrator that their request for exclusion was accepted by calling them at 855-972-9592. Water providers can file suit even if their PFAS detections are below state standards or proposed national maximum contaminant levels (MCLs).

Many utilities have, in fact, successfully pursued this strategy over the years for a variety of contaminants that affected their water supplies. However, water contamination lawsuits are subject to statutes of limitations that define a timeframe within which your system must act, usually from the time of detection to the filing of a lawsuit.

Whether they are part of the settlements or decided to opt-out, it is advisable for water providers to act quickly to avoid missing out on funding opportunities and protect your community’s water quality.

This is especially time sensitive for those systems that are part of the settlements: if claims are not submitted by their deadline, water providers will not receive settlement payments and will be ineligible to file additional lawsuits against the involved companies over PFAS water contamination.

Ken Sansone is a partner at SL Environmental Law Group. Mike DiGiannantonio is an attorney at SL Environmental Law Group.