In June 2023, two landmark settlement proposals were announced over PFAS, in which two of the chemical companies that manufactured them have agreed to make payments to the public water systems now saddled with cleaning them up.

In the first settlement announced, DuPont and related companies, Chemours and Corteva, agreed to pay $1.185 billion to settle claims that they contaminated U.S. public water systems with toxic "forever chemicals" now linked to liver damage, developmental issues, reduced immune function and cancer. 

Just a few weeks later, 3M announced a PFAS settlement of water systems claims against it for $10.3 billion, the largest drinking water settlement in U.S. history. This number could grow even larger, to $12.5 billion, depending on how many public water systems detect PFAS during EPA-required testing over the next three years. These are the latest developments in ongoing multi-district litigation between the manufacturers of PFAS and water suppliers across the country who seek to hold these polluters accountable for cleanup costs. 

Settlements are the beginning of recovering PFAS cleanup costs

In March, the EPA formally proposed strict maximum contaminant levels of 4 ppt for PFOA and PFOS (two of the most common PFAS). Since then, water systems have begun contemplating strategies for proper PFAS detection and mitigation, and for many, litigation, as the costs for cleaning up PFAS may be well beyond the capital and operating budgets of many public water systems nationwide. For nearly every water system, filing a product liability lawsuit or otherwise participating in litigation may be the only meaningful way to secure funds to offset the high costs of PFAS remediation. 

Virtually all U.S. public water systems that have detected PFAS in at least one of their supply sources, or are required to test for it under UCMR5, will be eligible to receive funds if the settlements are approved by the court. There is no obligation to prove that the PFAS contamination was caused by DuPont, 3M or their products. Since the proposed agreement is for a class action settlement, all eligible public water systems will be included unless they opt out, regardless of whether they have filed lawsuits against the companies.

If approved, the PFAS class action settlements against DuPont and 3M may help public water systems recover significant funds, but the process of submitting claims is likely to be complex and depend on a variety of data about each contaminated source. 

The role of legal representation for water systems

While eligible public water systems will automatically be included in the proposed class action settlements unless they opt out, there are still several reasons for a water system to retain legal counsel and file their own lawsuits in the MDL. If the proposed settlement is approved, the amount each participant ultimately receives will depend on a variety of factors including the total number of participants, the degree of contamination present in the water supply, the number of people served by the water system, and more — and systems that have filed lawsuits may be eligible for enhanced payments.

Additionally, class action settlements typically require the payment of attorneys’ fees out of the fund, so that even water systems that haven’t filed a lawsuit are effectively responsible for the fees. This means that water systems that choose to participate in the settlement but haven’t filed a lawsuit would likely have to pay legal fees out of their settlement shares but without the benefit of legal representation to guide them through the process. It is therefore in water suppliers’ best interests to seek legal counsel, even if they plan to participate in the class action settlement.

Finally, some water systems may find that the terms of the settlements do not suit their needs and choose to pursue litigation against DuPont or 3M instead. Participating in the settlement will resolve all potential or existing water systems’ claims against 3M and DuPont and its related companies, Chemours and Corteva. This means that water systems that don’t opt out will no longer be able to file additional lawsuits against any of those three manufacturers, even if the final settlement amount received fails to cover the full cost of PFAS cleanup. The right law firm can recommend the best path forward.

Accounting for all damages

The total cost of managing PFAS pollution, which may include shutting down contaminated wells, locating alternative water sources, building new state-of-the-art treatment facilities, and operating them for years into the future, can easily be millions of dollars per well or other affected source. Given the magnitude of these impacts, responsible water systems should explore all potential avenues for cost recovery in an effort to make polluters, not ratepayers, bear this expense.

As previously mentioned, public water systems that do not opt out of the proposed class action settlement would forfeit the opportunity to file additional claims against 3M, DuPont, Chemours and Corteva. Therefore, it is essential for participants to understand their potential compensation amount as they consider their next steps.

An environmental law firm with experience in water contamination cases can perform a detailed analysis of a water system’s PFAS impacts and estimate the amount it could expect to receive through the proposed class action settlements. By exploring all possible avenues of recovery, water systems can determine the best course of action to achieve
the best outcome.