Today, one of two major settlements between chemical producers and cities across the nation could be approved by courts. The first of the two settlements includes Dupont, Chemours and Corteva, settling lawsuits over PFAS contamination to the tune of a billion dollars — but not all eligible cities in North Carolina are signing on.
A few things could happen at today's final fairness hearing for the Dupont settlement says Paul Calamita, an attorney at AquaLaw who has been advising cities across the U.S. on the case.
"If enough opt outs have occurred, Dupont, Chemours, Corteva can walk away and we go right back on the litigation path," Calamita said.
Any water authority with PFAS contamination above federal guidelines can sign on the suit. In doing so, they could receive money to upgrade their water systems to filter our PFAS, but they also forfeit the right to sue later on. By opting out, they can reserve that right. Calamita says more cities than expected have chosen not to sign on to the billion dollar settlement. Some cities chose not to sign on because they have no contamination.
"Two, there are others that had some contamination, but very low levels and they just weren't going to get a lot," he said.
A third group of hold outs are cities with significant levels of contamination. That's because PFAS filtration systems are expensive.
"They may have to do major projects. Ten to 200 million dollars, no exaggeration," Calamita said. "Those folks, many of them, decided we're not taking a few pennies on the dollar and giving these guys a release."
The settlement is subject to court approval, meaning today, a judge in South Carolina will review the case. Calamita says the likeliest outcome is that its approved and no one walks away. That could prove more beneficial to the cities that have signed on.
"The utilities who stayed in may get a bit of a windfall because they'll get some of the money that would have otherwise gone to the opt outs," he said.
As for how much each city will receive, that's unknown for right now. It depends on the number of plaintiffs and a complicated calculation based on size of the water supplier.
The other settlement is with 3M, a multinational company that produces over 60,000 products — from scotch tape, laminates, and ear plugs. 3M's settlement, announced earlier this year, will hand out $10-12 billion.
"3M is trying to get a little bit more on their release than just drinking water, their release strays into other things," Calamita said.
3M's settlement covers more than just drinking water. It also covers wastewater and stormwater and seeks to prevent future punitive damages. In July, 22 state attorneys general opposed the 3M settlement, saying it was too broad. Those objections were pulled back after changes to the agreement. Nonetheless, there remains opposition. A primary critique is that the total settlement money is not enough to cover all the costs associated with installing and maintaining a PFAS filtration system. The final hearing date for the 3M settlement is February 2, 2024.
Last year, the Cape Fear Public Utility Authority, which serves Wilmington, installed a $43 million system.
These settlements are in response to thousands of lawsuits from state, county and local authorities seeking to reduce the harms of PFAS contamination.
PFAS is a class of chemicals used in manufacturing to produce heat and water resistant items, ranging from skillets to rain jackets to fire-fighting foam. PFAS has been linked to higher cholesterol, liver damage, and some cancers.
A few cities in North Carolina have PFAS levels above federal guidelines. According to tests from last year that sampled 50 cities around North Carolina, NCDEQ reports that Greenville, Goldsboro, Smithfield and Rocky Mount have all tested for levels that exceed guidelines. PRE reached out a number of large cities in Eastern North Carolina. Goldsboro and the Cape Fear Public Utility Authority have signed on to the settlements. Greenville said in an email that it is not eligible, while New Bern, Jacksonville, and Beaufort each said they have not signed on.
