There are two-multibillion-dollar class action settlements against two of the largest producers of PFAS chemicals—DuPont and 3M—to address contaminated drinking water supplies. Municipal water providers need to quickly understand their legal options and exposure of their water sources to the “forever” chemicals. Eligible costs under the settlement will cover testing and remediation related to PFAS in drinking water.

These settlements are being adjudicated in federal court in South Carolina through what is called a multidistrict litigation proceeding (MDL), a method used to streamline incredibility large and complex tort cases. There are currently several hundred public water suppliers as plaintiffs in the MDL; however, thousands more are eligible to join the settlement.

Whether you have tested and found PFAS in your water supply or have never tested for it (yet), all cities need to speak with your city attorney to determine whether your city is eligible to join the settlement and whether to file a claim. Only those cities that join will be eligible to receive compensation under the settlement for future testing and remediation. However, joining the settlement will also bar any future claim against 3M or DuPont for PFAS in your water system. Importantly, if you are listed as a claimant but do not file a claim you will not only be ineligible for monies under the settlement, but your city will be barred from pursuing future legal claims related to issues the settlement addressed (i.e., public water systems). The exception is for cities who were listed as claimants but submitted requests for exclusion by the deadlines established in the settlement. Those cities are not eligible to file a claim but are not barred from future legal claims.

Is your city eligible as a class member?

3M Settlement class members are:

1. All active systems in the United States of America that have one or more Impacted Water Sources as of June 22, 2023.
2. All active systems in the United States that do not have one or more Impacted Water Sources as of June 22, 2023, and (i) are required to test for certain PFAS under UMCR-5, or (ii) serve more than 3,300 people, according to U.S. EPA safe Drinking Water information system federal reporting services system (SDWIS).

DuPont Settlement class members are:

1. All systems in the United States of America 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.
2. All systems in the United States as of June 30, 2023 are (i) subject to the monitoring rules set forth in the Fifth Unregulated Contaminate 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 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.

Meanwhile, both the EPA and Washington’s Department of Health are increasing their focus on regulating PFAS in public water systems. In 2021, Washington adopted State Action Levels (SALs) for five PFAS. The EPA has proposed rules for a drinking water standard for six PFAS. Whether your city chooses to join the settlement or not, this issue is not going away.

Resources

• Pfaswatersettlement.com
• NLC – Local Governments PFAS Litigation: What Communities Need to Know (NLC members only)
• 3M Phase 1 Claimants
• 3M Phase 2 Claimants

Disclaimer: This information is being provided for informational purposes only and does not constitute legal advice nor does it create an attorney client relationship.