3M Firefighting Foam Settlement Results in Up To $12.5B Payment in PFAS Water Contamination Lawsuits

The settlement agreement includes provisions to compensate drinking water systems which are known to be contaminated from firefighting foam, and those which test positive for PFAS contamination in the future.

3M Company confirms a massive firefighting foam settlement has been reached, which will result in payments of up to $12.5 billion to cities and communities nationwide, to resolve claims that toxic per- and polyfluoroalkyl substances (PFAS) contaminated water systems nationwide after use during firefighter training and response exercises.

The chemicals are included in aqueous film-forming foam (AFFF) products used by the U.S. military and local fire departments to combat fuel based fires, and have been linked to the development of various types of cancer and other injuries. However, runoff from the fire fighting foam has also caused widespread water contamination in many communities, leaving local cities and water suppliers to deal with the clean up costs.

3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers of PFAS chemicals and fire safety products have faced a thousands of water contamination lawsuits brought by local water providers in recent years, seeking billions in damages. However, the settlement does not resolve firefighter cancer lawsuits, brought by individuals who indicate they developed testicular cancer, kidney cancer, pancreatic cancer, prostate cancer and other forms of cancer from exposure during their firefighting careers.

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. However, just as the first case was set to begin earlier this month, 3M Company asked the court to delay the trial, indicating it believed it was on the verge of a final PFAS water contamination settlement.

Firefighting Foam Settlement Reached with Municipalities

According to the firefighting foam settlement agreement filed with the Securities Exchange Commission (SEC) on June 22, 3M will pay between $10.5 billion and $12.5 billion in the coming years, depending on how many drinking water systems test positive for PFAS contamination. The deal seeks to resolve both present and future claims brought by drinking water systems nationwide.

The announcement of the settlement comes after several other defendants, including Chemours Co., DuPont de Nemours Inc., and Corteva Inc., indicated they had reached a $1.19 billion settlement with U.S. public water systems to resolve their role in the claims.

“On June 22, 2023, 3M Company entered into a proposed class-action settlement to resolve a wide range of drinking water claims by public water systems (PWS) in the United States regarding any per- or poly-fluoroalkyl substance, subject to court approval,” the SEC filing states. “Eligible class members are United States public water systems as defined in the Settlement. Subject to court approval, the Settlement would resolve a portion of 3M’s PFAS-related multidistrict litigation that involves PWS drinking water claims in the United States by providing funding for treatment technologies to PWS that have tested positive for PFAS, funding for future testing, and funding for systems that test positive in the future.”

The firefighting foam water contamination settlement agreement still needs to be approved by Judge Gergel. If he approves the deal, the payouts to water systems known to have PFAS contamination will come first, involving more than 5,000 water systems. Then, a second phase will occur which involves systems which have not yet been thoroughly tested for the presence of PFAS chemicals.

Firefighter Cancer Lawsuits

PFAS include a group of over 9,000 man-made chemicals, which have been widely used in fire safety equipment and AFFF products in recent decades. While the chemicals are also widely found in products like non-stick pans, pizza boxes and other material, most of the problems linked to the chemicals stems from direct exposure to firefighting foam while combating fuel based fires, or releases into the environment around military bases, airports and other firefighter training locations.

The number of claims is likely to continue to grow for decades, given the nature of PFAS, which earned the name “forever chemicals” due to their persistence in the environment, meaning they will likely continue to be a toxic threat to water supplies and human health for a long time to come, and the defendants could be held liable for much of that as lawsuits continue to be filed for years.

However, in addition to claims brought by local cities and water providers over the damages caused by PFAS chemicals, 3M Company and the other manufacturers continue to face individual lawsuits brought by former firefighters diagnosed with various types of cancer.

In late May, the parties were directed to select 28 personal injury claims for the second bellwether pool involving plaintiffs who say they were exposed to AFFF through drinking water contamination, as opposed to direct exposure.

These cases will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims. In addition, they will be limited to individuals alleging they were 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 Warminister.

The order calls for the parties to select the cases by July 28, and propose a joint list of selected or proposed cases to the court by August 11.

If the current efforts do not end in a firefighting foam injury settlement, the outcome of the early bellwether trials will not have any binding impact on other claims. However, if they proceed, 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.