EXHIBIT 10.1C
EXHIBIT C: ALLOCATION PROCEDURES
This Document describes the Allocation Procedures referred to in Section 11.5 of the Settlement Agreement. All capitalized terms not otherwise defined herein shall have the meanings set forth in the Settlement Agreement (which are included in the Definitions Annex attached hereto).
The Court will appoint a Special Master and Claims Administrator pursuant to Rule 53 of the Federal Rules of Civil Procedure to oversee the allocation of the Settlement Funds. They will adhere to their duties set forth herein and in the Settlement Agreement. The Special Master will generally oversee the Claims Administrator and make any final decision(s) related to any appeals by Qualifying Settlement Class Members and any ultimate decision(s) presented by the Claims Administrator. The Claims Administrator will perform the actual modeling, allocation and payment functions described below. The Claims Administrator will seek assistance from the Special Master when needed. The Claims Administrator may also seek the assistance of Interim Class Counsel’s consultants who assisted in designing the Allocation Procedures.
Qualifying Settlement Class Members fall into one of two categories, Phase One Qualifying Settlement Class Members or Phase Two Qualifying Settlement Class Members. The Settlement Funds will be allocated between and among Phase One Qualifying Settlement Class Members and Phase Two Qualifying Settlement Class Members as set forth in the Settlement Agreement and these Allocation Procedures.
The Claims Administrator shall not allow for duplicate recoveries for PFAS in or entering a Settlement Class Member’s Public Water System.
A Settlement Class Member will not be allocated or receive its share of the Settlement Funds if it does not submit a timely and complete Claims Form.
Claims Forms will be available online and can be submitted to the Claims Administrator electronically or on paper. Putative Settlement Class Members may submit Claims Forms at any time following Preliminary Approval, but will not be assessed (other than for deficiencies), scored or paid until after the Effective Date. The Claims Forms will vary depending on the applicable class membership category (Phase One or Phase Two) and on the specific fund(s) from which compensation is sought.
DEFINITIONS
As used in this Settlement Agreement and its Exhibits, the following capitalized terms have the defined meanings set forth below. Unless the context requires otherwise, (a) words expressed in the masculine include the feminine and gender neutral, and vice versa; (b) the word “will” has the same meaning as the word “shall”; (c) the word “or” is not exclusive; (d) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not simply mean “if”; (e) references to any law include all rules, regulations, and sub-regulatory guidance promulgated thereunder; (f) the terms “include,” “includes,” and “including” are deemed to be followed by “without limitation”; and (g) references to dollars or “$” are to United States dollars.
All capitalized terms herein shall have the same meanings set forth in the Settlement Agreement or in the additional definitions set forth below.
“Adjusted Base Score” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
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“Adjusted Flow Rate” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“Base Score” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“Baseline Testing” has the meaning set forth in Paragraph 4(b) of these Allocation Procedures.
“Capital Costs Component” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“Impacted Water Source” means a Water Source tested or otherwise analyzed for PFAS and found to contain any PFAS at any level.
“Litigation Bump” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“Operation and Maintenance Costs Component” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“PFAS Score” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“PFOA” means Chemical Abstracts Service registry number 45285–51–6 or 335–67–1, chemical formula C8F15CO2, perfluorooctanoate, along with its conjugate acid and any salts, isomers, or combinations thereof.
“PFOS” means Chemical Abstracts Service registry number 45298–90–6 or 1763–23–1, chemical formula C8F17SO3, perfluorooctanesulfonate, along with its conjugate acid and any salts, isomers, or combinations thereof.
“Proposed Federal PFAS MCLs” means the maximum level of a specific PFAS analyte (or a mixture containing one or more PFAS analytes) in Drinking Water that can be delivered to any user of a Public Water System without violating the rule proposed in 88 Fed. Reg. 18,638, 18,748 (Mar. 29, 2023) (proposing 40 C.F.R. § 141.61(c)(34)–(36) & n.1). If the federal PFAS MCLs are finalized before the Court issues Final Approval, the final federal PFAS MCLs will be utilized instead of the Proposed Federal PFAS MCL; otherwise, the Proposed Federal PFAS MCLs will be used.
“Public Water Provider Bellwether Bump” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“Qualifying Test Result” means any result of a test conducted by or at the direction of a Qualifying Settlement Class Member or of a federal, state, or local regulatory authority, or any test result reported or provided to the Qualifying Settlement Class Member by a certified laboratory or other Person, that used any state- or federal agency-approved or -validated analytical method to analyze Drinking Water or water that is to be drawn or collected into a Qualifying Settlement Class Member’s Public Water System.
“Regulatory Bump” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“Settlement Award” has the meaning set forth in Paragraph 4(h) of these Allocation Procedures.
“State MCL” means the Maximum Contaminant level of a specific PFAS analyte (or a mixture containing one or more PFAS analytes) in Drinking Water that can be delivered to any user of a Public Water System without violating the law of the state where that Public Water System is located as of the Settlement Date.
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The Claims Administrator will verify each Phase One Qualifying Settlement Class Member’s eligibility by confirming it has one or more Impacted Water Sources as of June 30, 2023.
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The Claims Administrator shall pay any money remaining in the Phase One Supplemental Fund as of December 31, 2030, to the Phase One Qualifying Settlement Class Members participating in the Phase One Action Fund.
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Examples of Determining PFAS Score:
CWS 1 owns and operates 4 water sources: Surface Water (SW) System A, Well B, Well C, and Well D. The maximum levels of each PFAS chemical of each water source and the PFAS Scores are listed below.
Impacted Water Source | Sum of PFOS + PFOA | Avg. of (PFOA + PFOS) & Max Other PFAS | PFAS Score | Max PFOA | Max PFOS | Max PFNA | Max PFHxS | Max PFHxA |
SW System A | 62 | 35.15 | 62 | 15 | 47 | 8.3 | 5 | 0 |
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Well B | 0.95 | .475 | 0.95 | 0.95 | 0 | 0 | 0 | 0 |
Well C | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Well D | 15.2 | 27.6 | 27.6 | 12 | 3.2 | 0 | 1600 | 5.2 |
PFAS Score = {[(PFOA (Max Level) + PFOS (Max Level)] + Other PFAS (Max level)0.5} / 2
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Base Score = Capital Costs Component + Operation and Maintenance Costs Component
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Capital Costs Component = (EPA unit cost * flow rate)
Treatment cost per thousand gallons = 7.7245 * (flow rate)-0.281
Capital Costs Score = annual 1000 G units * treatment cost per thousand gallons
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O&M Cost Component = ((PFAS Modifier * PFAS Score) * Capital Cost Component + Capital Cost Component)
PFAS Modifier = 0.005
(EPA unit cost * flow rate) + ((PFAS Modifier * PFAS Score) * Capital Cost Component + Capital Cost Component)
(EPA unit cost * flow rate) + ((PFAS Modifier * PFAS Score) * Capital Cost Component + Capital Cost Component)
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Example of Determining Base Score
CWS 1’s SW System A has a PFAS Score of 62 and an adjusted flow rate of 1,494 gpm.
Cost per 1,000 gallon production = 7.7245 * (1,494) -0.281 = .99
Annual 1000 gallons units (1,494 * 60 * 24 *365) / 1,000 = 785,246
Capital Costs Component = 785,246 * .99 = 777,828
O&M Costs Component = ((62 * .005) * 777,828) + 777,828 = 1,018,955
Base Score = 777,828 + 1,018,955 = 1,796,783
After calculating the Base Score of each Impacted Water Source, the Claims Administrator will apply any bumps to the based on certain factors defined below. This will yield the Adjusted Base Score for each Impacted Water Source.
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Example of Determining Adjusted Base Score
CWS 1’s SW System A’s PFAS levels exceed the federal proposed MCL. CWS 1 filed a lawsuit in the AFFF MDL on November 1, 2022 against Settling Defendants and it was not selected as a Public Water Provider Bellwether Plaintiff. System A will receive the following Bumps:
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Regulatory Bump: 4.00
Litigation Bump: 0.15
Total Adjustment: 4.15
Adjusted Base Score = (Sum of Adjustments * Base Score) + Base Score
(4.15 * 1,796,783) + 1,796,783 = 9,253,432.5
Adjusted Base Score = (Sum of Adjustments * Base Score) + Base Score
Allocated Award = (Adjusted Base Score / Sum of All Adjusted Base Scores) x (Phase One Action Fund)
The Claims Administrator will notify each Phase One Qualifying Settlement Class Member of the Allocated Amount(s) for all its Impacted Water Sources.
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