On June 13th, 2024, the United States District Court of South Carolina entered Preliminary Approval of a Settlement Agreement between active public water systems and Tyco Fire Products LP for an amount of $750 million. Plaintiffs allege that Tyco knew that their PFAS (per – and polyfluoroalkyl substances) would never break down in the environment and would end up in public drinking water sources. Counsel for public water systems has determined that it is in the best interest of class members to participate in the settlement to avoid the uncertainties of litigation and to ensure benefits for members. Tyco has entered into the settlement agreement to avoid further litigation and denies the allegations in the litigation.
Tyco is the successor-in-interest of The Ansul Company, which had been manufacturing, distributing, and selling aqueous film-forming foam (AFFF), a fire-extinguishing product which contains PFAS, since 1975. Tyco also acquired Chemguard in 2011, which had been selling AFFF since 1988, and continues to sell through its Chemguard Specialty Chemicals division.
As PFAS does not degrade and persists in the environment, advanced treatment methods or combinations of existing methods are necessary for remediation. Remediation cannot be achieved by conventional drinking water treatment. PFAS is highly regulated by the Environmental Protection Agency (EPA) and strict regulations and guidelines require all public water systems nationwide to test for the presence of the substance. The additional monitoring and remediation required of public water systems to limit the levels of PFAS in their supplies has required many systems to take steps ranging from taking wells offline, installing advanced water treatment systems, reducing flow rates, drilling new wells, pulling water from other sources, and/or purchasing supplemental water.
On July 3rd, 2024, the same Court entered another Preliminary Approval of a Settlement Agreement between active public water systems and BASF Corporation for an amount of $312.5 million. BASF is the successor-in-interest of Ciba Inc., which manufactured, distributed, and sold fluorosurfacants containing PFAS to AFFF makers, including Ansul and Chemguard, from the 1970s to 2003. Ciba sold its fluorosurfacant business to Chemguard in 2003 but retained pre-2003 liabilities. In July 2009, BASF acquired Ciba, retaining all Ciba liabilities.
Settlement awards to class members are based on allocation procedures that reflect factors used in designing a water treatment system in connection with PFAS contamination. The cost of treating PFAS in the allocation procedure formulas is based on the volume of impacted water and the degree of impact. These costs can be broken into capital costs, which are driven by the impacted water source’s flow rate, and operations and maintenance costs, which are driven by flow rate and the levels of PFAS in the water. Communities with public water systems are advised to consult their legal counsel before deciding whether to remain in or opt out of either settlement.
A Final Fairness Hearing to consider whether to grant final approval of the Settlements will be held on November 1st, 2024.
A key aspect of these proposed settlements is that they require public water systems to affirmatively opt out if they do not wish to participate. In other words, if your community takes no action, it will automatically become a party to the settlements.
Deadlines for objecting to &/or opting out of these settlements are:
Tyco settlement: Last day to object is August 24th, 2024, and the last day for opting out is September 23rd, 2024.
BASF settlement: Last day to object is September 15th, 2024, and the last day for opting out is October 15th, 2024.
For more information, visit www.pfaswatersettlement.com.