Two preliminary class action settlements between manufacturers of Aqueous Firm-Forming Foam (AFFF) and public water systems may have significant implications for public airports nationwide. The proposed settlements are the first sizable settlements in the AFFF Multidistrict Litigation (MDL) and would provide some recovery for public water systems nationwide with any measurable detection of PFAS. However, participating in the class action settlements requires owners of public water systems to broadly waive rights to certain additional recovery from the settling AFFF manufacturers. Where public water systems and airports are operated by the same public entity, settling may impact the claims that airport operators can assert in the future regarding damages due to AFFF releases at airports. Owners of public water systems nationwide have until December 4 (for the DuPont settlement) and December 11 (for the 3M settlement) to decide to settle PFAS claims with those manufacturers or “opt out” of the proposed settlements. A public entity which has not opted out by this deadline will be bound by the terms of the class action settlement. Public entities which operate both airports and public water systems should carefully consider whether or not to participate in the settlement based on: (i) the potential PFAS exposure of their public water systems and airports; (ii) their independent assessment of the likelihood of future recovery based on other PFAS-related claims; and (iii) their resources available to pursue other PFAS-related claims, whether against AFFF manufacturers or other parties responsible for PFAS contamination, outside of the class action process.
If you would like to speak with us further about the pros and cons of participating in the settlement, please contact Sara Mogharabi (email@example.com), Polly Jessen (firstname.lastname@example.org), Thomas Bloomfield (email@example.com), or any of our other attorneys with whom you normally work.
For additional information about managing Airport PFAS risk, federal PFAS regulatory developments, and PFAS litigation, please refer to:
- KKR & Jacobs White Paper on Minimizing Airport PFAS Risk
- KKR News Alert: EPA Issues Notice of Proposed Rulemaking to Set First Nationwide Drinking Water Standards for Some PFAS
- KKR News Alert: EPA Issues Notice of Proposed Rulemaking to Designate Some PFAS as CERCLA Hazardous Substances
- KKR Article in ABA Natural Resources & Environment Magazine: PFAS Litigation – Emerging Trends for the Latest Emerging Contaminant