counsel to water utilites in pfas class action settlement

A nationwide settlement has been reached to resolve a pending class action against 3M and DuPont related to PFAS contamination, which is designed to provide more than $13 billion to eligible water systems throughout the United States.

The claims process can be daunting, and many law firms are soliciting water systems to provide counsel in exchange for a percentage of the system’s recovery – usually around 25%. There are downsides to such an arrangement, particularly when the attorney fee would greatly exceed an amount that would ordinarily be charged on an hourly basis. As an alternative, Dooley Gembala has partnered with several state rural water associations to represent members under a preferred hourly rate structure, that gives greater flexibility while maximizing the settlement benefit to systems.

Eligibility

Eligibility is divided into two groups: Phase One and Phase Two. Determining membership in either group is the first step to evaluating a system's potential recovery, and the timeline within which the system must take action.

3M Settlement Classes

Phase One – Includes any Active Public Water System in the United States that has one or more Impacted Water Systems as of June 22, 2023. Each Phase One Qualifying Class Member must test each of its Water Sources for PFAS. Phase One Settlement Claims must be received by April 2, 2024 at the earliest depending upon the date the court approves the settlement.

Phase Two – Includes most Public Water Systems that (i) are required to test for certain PFAS under UMCR 5, or (ii) serve more than 3,300 people. Phase Two Testing forms must be received no later than January 1, 2026.

DuPont Settlement Classes

Phase One - Includes any Public Water System that draws or otherwise collects from any Water Source that tested or otherwise analyzed on or before June 30, 2023 and found to contain any PFAS at any level. Phase One Settlement Claims must be received by May 8, 2024.

Phase Two – Includes Public Water Systems that are not Phase One Qualifying Settlement Class Members and as of June 30, 2023, are subject to the monitoring rules set forth in UCMR 5 or other applicable state or federal law. Phase Two Testing forms must be received no later than January 1, 2026.

Perform Baseline Testing

All systems (with minor exceptions) must perform Baseline Testing as part of the claim process. This is different from what the EPA requires for UCMR 5 because claimants must test every water source, not just the entry points to the distribution system. These test results are used together with a system’s flow rates to generate a PFAS score, which is an indicator of the monetary payment available to a system. Payments to eligible claimants will take place over time and consider capital expenditures as well as operation and maintenance expenses associated with PFAS mitigation.

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