What’s Next in the AFFF MDL?

During June of 2023, two landmark class action settlements emerged from ongoing multi-district litigation over the contamination of drinking water with toxic per- and polyfluoroalkyl substances (“PFAS”) resulting from the widespread use of aqueous film-forming foam (“AFFF”). The first settlement was a $1.185 billion agreement with DuPont, Chemours, and Corteva and the second was a historic $12.5 billion agreement with 3M Company. Together, these settlements provide a pathway for Public Water Systems to fund needed contamination remediation projects in their water systems. Both these settlements are subject to approval by Judge Richard M. Gergel, who was assigned in December 2018 to oversee the ongoing MDL proceedings in the United States District Court for the District of South Carolina. While the settlements reached by DuPont, Corteva, Chemours and 3M mark a significant milestone in the litigation, there are still other chemical manufacturers who have not reached a settlement for the public drinking water PFAS related liabilities. As a result, the litigation against these remaining chemical manufacturers persists. Moreover, some Public Water Systems may have other PFAS or AFFF related claims alleging damages other than drinking water including claims for soil or groundwater contamination, property damage clean-up and remediation, or natural resource damages. These agreements do not release any claims beyond those related to PFAS contamination in Public Water Systems’ drinking water. Consequently, proposed class members and other individuals or entities who have suffered injuries may continue to pursue non-drinking water claims. The future of the litigation involves claims from various entities, including airports, owners of landfills, fire departments, wastewater treatment plants and individual personal injury claims. The use of AFFF in airports and fire departments has resulted in the contamination of not only their property but also adjacent landfill and wastewater treatment plants. The extensive use of AFFF containing PFAS has led to the release of these chemicals into the environment also affecting the health of surrounding communities. The AFFF MDL has had significant implications for the environment and public health and has served as a means of holding manufacturing companies accountable. There is still a considerable amount of litigation yet to unfold. However, this litigation has shed light on the detrimental effects of these toxic chemicals creating awareness and encouraging greater corporate responsibility in the interest of safeguarding the environment and protecting public health.