With the U.S. Environmental Protection Agency’s (EPA) recent announcement of final maximum contaminant levels for various per- and polyfluoroalkyl substances (PFAS), public water systems (PWSs) are determining what actions will be required to comply with the new regulations and how they will pay for the additional compliance costs. For many PWSs across the country, (some) financial relief will be coming their way as a result of the final settlement in the DuPont PFAS multidistrict litigation.
The U.S. District Court for the District of South Carolina, Charleston Division, has granted final approval of the class settlement for In Re: Aqueous Film-Forming Foams Products Liability Litigation. DuPont and the other settling defendants have agreed to pay $1.185 million to eligible PWSs** in exchange for receiving releases, covenants not to sue, and other relief.
With the Court’s approval of the final settlement, the claims period is now open and carries deadlines for receiving compensation. Eligible class members will fall into two categories: (1) Phase One Qualifying PWSs, which are those PWSs that draw or otherwise collect from any water source found to contain any PFAS at any level on or before June 30, 2023, or (2) Phase Two Qualifying PWSs, which are those PWSs that are not a Phase One Qualifying PWS but are otherwise subject to EPA’s Unregulated Contaminant Monitoring Rule 5 or other applicable state or federal PFAS monitoring.
The end of the claims period for Phase One Qualifying PWSs is quickly approaching and requires that these eligible PWSs submit all requisite forms on or before June 17, 2024. Phase One claims forms are very detailed and require a significant amount of information from PWSs to be eligible for compensation. A failure to timely submit these forms or submit all requisite information will result in a PWS forgoing its opportunity for compensation. Phase One PWSs are urged to begin this process now to ensure timely compliance. Phase Two PWSs have a longer period for claim submittal, as any Phase Two claims under this settlement must be submitted by June 30, 2026.
Once all requisite forms are submitted, the claims administrator will evaluate each PWS to determine compensation in accordance with the approved Allocation Table. Compensation may vary depending on the level of PFAS in each PWS water source.
Steptoe & Johnson is actively assisting PWSs in compiling and submitting the information needed to receive compensation under this settlement and in counseling PWSs on PFAS compliance moving forward.
Notes
*Steptoe & Johnson PLLC is also aware of the proposed final settlement in In Re: Aqueous Film-Forming Foams Products Liability Litigation involving the 3M Company. At this time, deadlines for submittal of those claims have not been finalized. Steptoe & Johnson will alert clients to those deadlines once they are known and will also be available to assist in completion and submittal of those claims.
**Eligible PWSs include (1) those PWSs that did not formally opt out of the class settlement; (2) all PWSs that draw or otherwise collect from any water source that, on or before June 30, 2023, was tested or otherwise analyzed and found to contain PFAS at any level; and (3) all PWSs as of June 30, 2023, that are (i) subject to the monitoring rules set forth in UCMR-5 or (ii) required under applicable federal or state law to test or otherwise analyze any of their water sources or the water they provide for PFAS before the UCMR-5 deadline.
