The U.S. District Court for the District of South Carolina approved two major settlements in the multidistrict litigation (“MDL”) that consolidated thousands of cases related to per- and polyfluoroalkyl substances (“PFAS”) contamination in public water systems allegedly resulting from use or discharge of firefighting foams.
Judge Gergel recently entered a final order and judgment of the settlement agreement (redline to originally signed agreement) directing E.I. Du Pont de Nemours and Company n/k/a EIDP, Inc. (“DuPont”) to pay $1.185 billion to settle all claims of PFAS contamination in public water systems, and on March 29, Judge Gergel approved the settlement agreement (redline to originally signed agreement) with 3M Company (“3M”) directing it to pay between $10.5 billion and $12.5 billion to settle these claims.
Public water systems will need to be aware of the process and deadlines established under the settlement to access funds for sampling and treatment for PFAS. Any public water system that is part of the settlement classes and that did not affirmatively opt out is bound by the terms of the settlement and may not later bring a separate claim against 3M or DuPont. Only approximately 7.5% of the potential class members opted out of the 3M settlement and only 6.6% opted out of the DuPont settlement. Certain water systems, such as public water systems that are owned by a state government or the federal government, are excluded from the settlements.
Upcoming key deadlines for submittal of claims forms under these settlements are summarized below. For more information on the different type of claim forms and the eligibility criteria, consult with the Settlement Administrator’s webpage.
DuPont Settlement
Under the DuPont Settlement, “Phase One” Class Members are public water systems that have one or more water sources with laboratory data showing a detectable level of PFAS as of June 30, 2023. “Phase Two” Class Members consist of all public water systems that, as of the Settlement Date, are (i) subject to the monitoring rules set forth in Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) (i.e., “large” systems serving more than 10,000 people and “small” systems serving between 3,300 and 10,000 people), or (ii) required under applicable state or federal law to test or otherwise analyze any of their water sources for PFAS before the UCMR 5 Deadline. The DuPont Parties have allocated 55% of the Settlement Amount to Phase One Class Members and 45% to Phase Two Class Members.
3M Settlement
Under the 3M settlement, “Phase One” Class Members consist of every active public water system that has one or more water sources with laboratory data showing a detectable level of PFAS as of the settlement date (June 22, 2023). “Phase Two” Class Members consists of every active public water system that does not have one or more “Impacted Water Sources” as of the June 22, 2023, and (i) is required to test for certain PFAS under UCMR-5 or (ii) serves more than 3,300 people, according to SDWIS [Safe Drinking Water Information System]. The 3M settlement allocates 55% of the Settlement Amount to Phase One Class Members and 45% to Phase Two Class Members. Under the 3M settlement “Impacted Water Source” means a Water Source tested or otherwise analyzed for PFAS and found to contain any PFAS at any level.
Per the terms of the settlement, 3M will make payments over 13 years, which is intended to preserve funds for public water systems and particularly those submitting supplemental claims.
There are currently no pending appeals of the final approval orders. We will continue monitoring this case and provide updates.
The multidistrict litigation is In Re: Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina.
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