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Public-Water Suppliers Must Evaluate Potential PFAS Claims Against 3M and Dupont

on Friday, 29 September 2023 in Environmental Pulse: Vanessa A. Silke, Editor

After a federal judge preliminarily approved the proposed class-action settlements, public-water suppliers risk releasing their claims if they do not act.

A federal judge preliminarily approved a proposed multibillion-dollar class-action settlement between public-water suppliers and DuPont de Nemours, Inc. (“DuPont”) and 3M Company (“3M”). As our previous article summarized, the settlement stems from lawsuits alleging that DuPont and 3M caused per-and-polyfluoroalkyl substances (“PFAS”) contamination in drinking water. DuPont and 3M, in the proposed settlement, agreed to pay $1.185 billion and $10.5 billion to $12.5 billion, respectively.

While over 440 public-water suppliers are already parties to the settlement, 6,000-7,000 public-water suppliers may also qualify to participate in the settlement. The eligibility criteria differs for each settlement:

To participate in the DuPont settlement, a public-water supplier must:

(1) Qualify as a “public water system;”  

(2) Have a current detectable level of PFAS in its water or face mandatory PFAS testing under federal or state law; and

(3) Not belong to a state or federal government or be located in the Lower Cape Fear River Basin of North Carolina.

To participate in the 3M settlement, a public-water supplier must:

(1) Have already detected PFAS in its water supplies; or

(2) Currently serve over 3,300 consumers and face mandatory PFAS testing by the end of 2025 under federal or state law; and

(3) Not belong to a state or federal government, be near a manufacturing site, or have already settled with 3M.

Many public water systems will qualify under at least one of these eligibility criteria.  A public water system is a “system that provides water for human consumption through piping of some sort, if that system included fifteen (15) or more service connections or regularly serves more than twenty-five (25) individual consumers.” 42 U.S.C. § 300f. And under a proposed rule, the U.S. Environmental Protection Agency would require every public water system to test for PFAS.

Public-water suppliers that qualify under one of these settlements must determine whether to opt out or object soon. That determination can depend on a number of legal and economic factors. In the DuPont settlement, the deadline to object is November 11, 2023, and the deadline to opt out is December 11, 2023. In the 3M settlement, the deadline to object is November 4, 2023, and the deadline to opt out is December 4, 2023. Class members that fail to opt out or object may involuntarily release their entitlement to a settlement or claim.

Attorneys at Baird Holm, LLP have experience and expertise in the areas of environmental law and litigation. If you have further questions or would like an evaluation of your potential participation in either class-action settlement, please do not hesitate to reach out.

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