AFFF Water Contamination Settlement With DuPont, Other Chemical Companies, Approved By Court

A federal judge has granted final approval for an aqueous film-forming foam (AFFF) water contamination settlement agreement with DuPont, Chemguard and several other chemical manufacturers, in which local municipalities and water providers will receive $1.2 billion to cover some of the costs associated with cleaning up toxic chemicals from drinking water supplies nationwide.

In recent years, municipalities throughout the U.S. have filed firefighting foam lawsuits against DuPont, Chemguard, Inc., 3M Company and other companies involved in the sale of fire safety products that contained toxic per- and polyfluoroalkyl substances (PFAS), which have been widely used by the U.S. military and local fire departments, to combat fuel-based fires.

Lawsuits allege that the companies ignored the risk that run off from AFFF used during training and response exercises may contaminated water supplies with toxic chemicals, which are known to build up and persist in the environment, increasing the risk of cancer and other serious health problems.

Last summer, the communities reached a tentative settlement with DuPont, Chemguard, Inc. and others for $1.18 billion, to resolve claims over their role in the water contamination. A separate $12.5 billion AFFF settlement has been reached with 3M Company, which is still awaiting court approval.

AFFF Water Contamination Settlement Final Approval

Given common questions of fact and law presented in the litigation, all AFFF lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, for coordinated discovery, pretrial proceedings and a series of early bellwether trials.

Following a fairness hearing in December 2023, Judge Gergel issued an order and opinion (PDF) on February 8, granting final approval to the deal between the municipal water districts and the non-3M defendants. The settlement agreement includes all public water systems in the U.S. whose water was found to contain any amount of PFAS on or before the settlement date.

“The Court finds the settlement is fair, and all factors weigh in favor of this finding,” Judge Gergel wrote. “The settlement was reached through good faith bargaining at arm’s length without collusion; there is nothing in the record to suggest otherwise.”

The day before, Judge Gergel issued a court order (PDF) indicating how objections to the settlement can be submitted by those who qualify to opt-out of the agreement. They have 15 days after the order was filed to submit an objection.

AFFF Injury Lawsuits Continue Toward Trials

In addition to water contamination lawsuits brought by local water suppliers, manufacturers also face thousands of individual AFFF cancer lawsuits, brought by firefighters and other individuals who developed testicular cancer, kidney cancer, pancreatic cancer and other forms of cancer following exposure to the toxic chemicals in firefighting foam.

In May, Judge Gergel issued a case management order that directed the parties to prepare a list of 28 AFFF personal injury claims to serve as a bellwether pool, which will be prepared for a series of early trial dates to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation. These cases focus on plaintiffs who say they were exposed to AFFF through drinking water contamination, as opposed to direct exposure claims brought by firefighters.

The personal injury bellwether claims will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims involving individuals exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminster.

While the outcome of these early bellwether trials will not have any binding impact on other claims, it is expected that the amount of any AFFF lawsuit payout awarded by juries may influence future firefighter cancer settlement negotiations to resolve the litigation.