Water utilities across the county recently received settlement notice letters related to the per- and polyfluoroalkyl (PFAS) litigation pending in the U.S. District Court in South Carolina. The deadline for opting out of settlements with 3M and DuPont is looming in December, and water utilities will need to carefully consider their next steps.

PFAS are a class of substances used in a wide variety of applications, including the firefighting material aqueous film-forming foam (AFFF). PFAS are coming under increasing regulatory scrutiny, with water systems subject to testing requirements, and soon, federally enforceable limits for certain PFAS compounds. Thousands of individual lawsuits related to PFAS contamination from AFFF have been consolidated in a multi-district litigation in the District of South Carolina.

Approximately 400 of the lawsuits in the multi-district litigation were initiated by water companies alleging PFAS contamination to their water systems. The court has conditionally certified public water systems (with certain exclusions) as a class of plaintiffs whose claims share enough common features that it is appropriate to address them together. In June, 3M and DuPont (significant PFAS manufacturers) reached separate settlements with the plaintiffs’ executive committee (PEC), meant to resolve the majority of past and future PFAS-related claims by this class of U.S. drinking water providers against those manufacturers. These settlements earned preliminary approval from the court in August. Notice letters were sent to class members shortly thereafter.

Since public water systems are being addressed together as a class of plaintiffs, any of the 12,000 water providers nationwide that are part of the covered class are covered by the settlement unless they take affirmative steps to opt out – whether they had any part in negotiating the settlement or not. If the settlement gains the final approval of the court, even public water systems that have not been tracking the litigation will be bound by the settlement unless they opt out. Critical deadlines to be aware of include:

• November 4, 2023: deadline for water providers to object to DuPont settlement
• November 11, 2023: deadline for water providers to object to 3M settlement
• December 4, 2023: deadline for water providers to opt out of DuPont settlement
• December 11, 2023: deadline for water providers to opt out of 3M settlement

As water utilities decide whether to opt out of the settlements, they will need to carefully evaluate the specific settlement terms (which vary between 3M and DuPont). They will also want to consider their legal options and alternative remedies as well as their specific factual circumstances such as likely PFAS sources, PFAS load in the water system, and the projected funding needed to address PFAS issues.

In the meantime, the attorneys general of 20 states (including Connecticut) plus other jurisdictions (including Puerto Rico and the District of Columbia) have filed an opposition to the plaintiffs’ motion for approval of the class settlement. The objecting jurisdictions argue, among other things, that the indemnification provisions are too favorable to 3M, and could result in water utilities being obligated to indemnify 3M. States expressed similar concerns regarding the proposed DuPont settlement in an amicus letter to the court. Each settlement will be subject to a final fairness hearing (in December 2023 for DuPont and February 2024 for 3M) before the settlements are finalized.