PFAS Class Action Settlements & Washington Public Water Systems

By now, those involved in leadership of Public Water Systems in Whatcom County (and throughout Washington) may have heard about two proposed Class Action settlements to resolve claims for PFAS (Per- and polyfluoroalkyl substances) contamination in Public Water Systems’ drinking water: one involving DuPont (with a proposed settlement amount of $1.185 billion) and the other involving the 3M Company (with a proposed settlement amount of $10.5 billion – $12.5 billion).

While there are similarities in how the two settlement agreements are structured, there are also important differences. The leadership of Public Water Systems in the settlement class(es) should carefully evaluate the terms of each settlement agreement and make an informed decision on their participation.

Where Can I Find Information About The PFAS Class Action Settlements?

The Court-appointed Claims Administrator has developed a website – www.pfaswatersettlement.com – with extensive information regarding the two proposed settlements including court filings, claims forms, and copies of public notices. The website also contains FAQ pages related to each settlement:

3M FAQs

DuPont FAQs

Copies of the formal legal Notices sent to class members can be accessed here:

3M Class Notice (Long Form)

DuPont Class Notice (Long Form)

What Public Water Systems Are Involved?

It is important to note that there are differences between the two proposed settlement classes. These differences mean that it is possible for a Public Water System to be involved in one settlement, but not the other. The Settlement Class for the proposed 3M settlement is described in Section 5.1 in both the DuPont Settlement Agreement (pages 12-14) and the 3M  Settlement Agreement (page 14).

Both settlement class definitions reference the Environmental Protection Agency’s fifth Unregulated Contaminant Monitoring Rule (UCMR-5), which requires public water systems serving more than 3,300 people (and some smaller systems) to test for certain PFAS contaminants. An overview of the UCMR-5 program can be found here.

What Are The Key Upcoming Dates For Public Water Systems To Be Aware Of?

Deadline to Opt-Out: A settlement class member may elect to opt-out of the settlement class by mailing a Request for Exclusion that is received prior to the following dates:

DuPont: December 4^th, 2023

3M Company: December 11^th, 2023

Note that (1) there are specific requirements regarding what information a Request for Exclusion must contain, (2) to be treated as valid, a Request for Exclusion must be served on specific parties, and (3) the Request for Exclusion must be received by (not sent by) the deadline.

Any settlement class member that does not submit a valid Request for Exclusion prior to these deadlines will (assuming the settlement receives final approval from the Court) be bound by the terms of the settlement.

Deadline to Submit Objection: A settlement class member who has not opted out may file an objection to the settlement with the Court prior to the following dates:

DuPont: November 4^th, 2023

3M: December 4^th, 2023

There are also requirements associated with submitting an objection, which can be found via the FAQ pages linked above.

Takeaways:

Deciding whether to participate in these proposed settlements is a significant decision that warrants careful consideration. With the deadline to submit a Request for Exclusion fast approaching, the leadership of Public Water Systems in Washington should work with their legal counsel to (1) understand the specifics of each proposed settlement, (2) consider the short and long-term implications for their particular water system, and (3) make an informed decision on how to proceed.