Agenda

Back to Calendar Return

Item # 4.i.

City Council (FY24)

Meeting Date:	12/12/2023
Department:	Public Works

AGENDA CAPTION:

Consider action on a Resolution requesting exclusion from the class action settlement agreement between public water systems and E.I. Dupont De Nemours and Company related to perfluoroalkyl and polyfluoroalkyl substances ("PFAS").

BACKGROUND:

Polyfluoroalkyl and Perfluoroalkyl Substances (“PFAS”) are chemicals used in a range of products, from firefighting foam to non-stick cookware. They are often referred to as “forever chemicals.” Public water systems in various parts of the country filed lawsuits against 3M and other chemical companies, including DuPont, alleging harm resulting from the presence of PFAS in drinking water and/or the need to monitor for the presence of PFAS in drinking water.

The parties have reached a settlement agreement, the first between the public water systems and 3M, for $10.3 billion and a separate $1.19 billion settlement agreed to by DuPont. There are two groups of class members: (1) all active public water systems with one or more impacted water sources (i.e., tested positive for PFAS) as of June 22, 2023; and (2) all active public water systems that do NOT have impacted water sources but (i) are required to test for PFAS, or (ii) serve more than 3,300 people.

The settlements proposed appear to be structured to benefit cities with identified PFAS issues who are under state mandates to correct the problem prior to 2036. The EPA has not adopted any acceptable levels of PFAS, nor has Texas adopted any PFAS standards or treatment protocols. The settlement agreements also do not appear to provide sufficient financial incentive for water suppliers to waive possible future claims against Dupont for PFAS relief.

Several states and municipalities have filed objections to the settlement agreements, including Texas. Those objecting argue the settlement terms are too broad and could inappropriately release the companies from too much future potential liability over PFAS pollution – including for remediation of soil or wastewater contamination, and from some personal injury claims.

The City of Dallas, from whom the Town of Addison purchases its drinking water, lodged such an objection because it felt the funds proposed are grossly inadequate considering the future unknowns. The Dallas Water Utilities (“DWU”) held a meeting with its retail customers, including the Town of Addison, on November 27, 2023, during which DWU explained its position and asked its wholesale customers to opt-out of the settlement agreements.

Marten Law LLP represents DWU. They provided template letters to its wholesale customers requesting exclusion from the two separate settlement agreements. The provided letters include an affidavit from the wholesale customer, affirming the wholesale retailer’s inclusion in the settlement class. The affidavit also asserts the affiant’s authority to opt-out on behalf of the public water system and requests exclusion.

The deadline to opt-out of the DuPont settlement class is December 4, 2023, and the deadline for the 3M settlement is December 11, 2023. The required opt-out notices for the Town have been sent out.

Because the Town purchases its water from DWU, the Town will rely on DWU and its attorneys to test for PFAS, analyze the impact, if any, and devise a plan to recover the damages, if any, from the various chemical companies.

RECOMMENDATION:

Staff recommends approval.

Attachments
Resolution - DuPont Settlement Exclusion Request