Water district, authority decline to participate in another PFAS settlement

As water systems and water providers, the Eagle River Water & Sanitation District and the Upper Eagle Regional Water Authority have recently been eligible to participate in class action settlements against companies that pollute public water systems with PFAS. PFAS is the catch-all name for thousands of long-lasting “forever chemicals” that can resist oil, water and stains, and are popular in items such as water-repellent clothing and ski wax.

In the fall, the district and authority declined to participate in two PFAS-related settlements. Last month, district staff received information about a new settlement the district and authority could elect to participate in, with similar terms to those in the fall, and lower compensation.

During their regular meetings on Thursday, July 25, the district and authority boards reviewed and declined the new settlement proposal, and authorized district staff to make decisions about similar settlements going forward.

History of PFAS in Eagle County

The district and authority have conducted three studies to sample the water they provide for PFAS over the last five years. Data from the most recent study, conducted in 2023, shows that PFAS have been detected in five out of 11 of the two water providers’ sources, with four detections within the authority, and one in the district.

All five detections were below the maximum contaminant level of four parts per trillion. For reference, one part per trillion is the equivalent of one drop of water in 20 Olympic-sized swimming pools.

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Part of the challenge of sampling for PFAS is that technology has not caught up to the chemicals — though there are thousands of PFAS chemicals, only 29 can currently be detected. At the moment, not all labs in the United States can test for PFAS, and the testing is very expensive.

The district and authority will next sample for PFAS in 2025.

Water district, authority rejected similar settlements in November

This fall, the district and authority boards considered two PFAS-related settlements that, as water providers, they were invited to participate in. The lawsuits were against the multinational conglomerate company 3M and a collective of companies including the chemical company DuPont de Nemours, Inc., The Chemours Co., and Corteva, Inc. The second settlement is often referred to by the shortened name, “DuPont.”

In those settlements, the district and authority, combined, were eligible for nearly $500,000 in compensation. However, joining the settlements would have made the water entities releasing parties, meaning they could not sue 3M or DuPont in the future, even if the PFAS created by those companies were found to have a greater impact than what was known at that time.

In November, the district and authority boards held a joint meeting to discuss the 3M and DuPont settlements. Together, the boards concluded that although the money offered in both settlements was not insignificant, ultimately, not enough was known about the impact of PFAS in water systems, and they did not want to be precluded from partaking in potential future lawsuits that may take place after more information is obtained.

“We just don’t understand the scope of the PFAS problem, and the settlements, by Steve’s (Bushong, water quality counsel to both boards) analysis, have some significant issues, namely very broad immunity for very little money, very little compensation compared to the treatment costs,” said Brian Thompson, government affairs supervisor for the district.

Water district board turns down new settlement, empowers staff

Last month, the district and authority received information about a third settlement that the systems are eligible for. The class action settlement, in this case, is from a lawsuit against Tyco Fire Products, LP, a company that creates fire suppression systems.

According to Bushong’s analysis, Thompson said, the settlement from Tyco Fire Products “closely mirrors the structure and the language, and has all the same issues,” as the 3M and DuPont settlements. “The big difference is, it’s even less money,” he said.

The Tyco Fire Products settlement would provide less than $19,000 in compensation, combined, for the district and the authority.

Both Bushong and Katherine Winn, the district and authority’s general counsel, “felt comfortable” suggesting that, as both boards elected to opt out of the 3M and DuPont settlements, “it probably makes sense to opt out of this, as well,” Thompson said.

The boards are likely to receive more opportunities to join PFAS-related class action settlements in the future, “with the same issues and same structure” as the 3M, DuPont, and Tyco Fire Products settlements, Thompson said.

Rather than bringing every new settlement to the district board individually, “if we receive a settlement and it’s the same structure, same language, same issues,” and the same amount of monetary compensation, or less, than the 3M and DuPont settlements, then staff could be directed to decline to participate in the lawsuit, Thompson said.

In such cases, Siri Roman, the district’s general manager, would work with Bushong to determine the similarity of the settlement to the 3M and DuPont settlements. Led by Roman, district staff would be able to decide whether the board needed to review the new settlement, or to decline without board review.

“If it’s a very different deal than 3M and DuPont, both in the terms or the compensation, we still want to come back to the board and get your direct authorization,” Thompson said. “If it’s still the same situation, still the same really broad immunity for not nearly enough money to address the problem, we don’t have to spend the time bringing it to the board — we can just take action based on your direction.”

Thompson asked the district board if its members were comfortable applying their decision to opt out of the 3M and DuPont settlements to the Tyco Fire Products settlement, and to give district staff the ability to decline to participate in similar future settlements.

The district and authority boards each approved both proposals.