The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Joint Motion for Preliminary Approval of Class Action Settlement (Doc. 294) filed by the parties. Having considered the matter, and being duly advised, the Court makes the following findings, GRANTS the Joint Motion, and Orders as follows.
1. Plaintiffs are Community Water Systems from six different states. As Community Water Systems ("CWS"), each of the Plaintiffs owns property and facilities designed to acquire, filter, and dispense water for public use. Compl. at ¶¶ 4-27. Community Water Systems are required under the Safe Drinking Water Act ("SDWA") to test their finished drinking water for contaminants, 40 C.F.R. 141.24(h)(2), to ensure they do not exceed any Maximum Contaminant Level ("MCL").
2. In their complaint, Plaintiffs allege that atrazine has continuously entered their water supplies allegedly injuring their property rights. Compl. at ¶¶ 35, 51, 54-56, 59, 62-63, 74. Plaintiffs allege that they have had to test and monitor their water supplies for atrazine, as well as to install, operate, and maintain systems to filter atrazine from their water supplies. Id. at ¶¶ 4-27, 56(b), 56(d), 57, 65(b), 65(d), 75(b), 75(d). Plaintiffs also allege that in addition to these past expenses, the continued presence of atrazine in their water supplies will cause them to incur future expense. Id. at ¶¶ 4-27, 56(b), 56(d), 57, 65(b), 65(d), 75(b), 75(d). Plaintiffs ask for all future damages likely to be incurred in removing atrazine from their water supplies, including costs associated with the purchase and operation of appropriate filtration systems. Id., Prayer for Relief (d).
3. Since 1991 the EPA has set an MCL of 3 parts per billion (ppb) for atrazine on an average annualized basis. 56 Fed. Reg. 3526-01 (Jan. 30, 1991); § 40 CFR 141.50(b). The EPA considers MCLs to be "safe levels that are protective of public health." 52 Fed. Reg. 25690, 25693-94 (July 8, 1987). Defendants have argued that Plaintiffs' only legally protected interest is the right to provide water that complies with the MCL for atrazine. Thus, for those Plaintiffs which have not experienced a violation of the EPA's Maximum Contaminant Level, Defendants maintain that they have not suffered a legally cognizable injury. In addition, the best available technology for removing atrazine from drinking water is commonly used to address drinking water issues other than herbicide removal. Thus, Defendants challenged Plaintiffs' ability to demonstrate legal causation.
4. Plaintiffs seek to represent the approximately 2,000 Community Water Systems in the United States that have detected atrazine in their water and sought to resolve whether atrazine has an inherent design defect that causes it to run into drinking water sources when used as intended; whether that design renders it unreasonably dangerous to public water providers; whether Syngenta was aware that atrazine had this design defect; and whether Syngenta sold atrazine knowing it would run into drinking water sources.
5. In accordance with the parties' joint motion, the Court certifies the following class for settlement purposes only:
All Community Water Systems in the United States of America for which any Qualifying Test Result shows any Measurable Concentration of atrazine (2-chloro-4 ethylamino-6-isopropylamino-s-triazine).
The definitions of the terms used in this class description and Order can be found in the parties' proposed Settlement Agreement, which is attached as Exhibit A to their Joint Motion for Preliminary Approval of Settlement.
6. The settlement class satisfies the requirements of Rule 23(a)(1) for purposes of settlement as it is comprised of approximately 2,000 members making joinder impracticable.
7. The Plaintiffs' products liability, negligence, nuisance and trespass claims for damages arising from the entry of atrazine into their water supplies satisfy the requirements of Rules 23(a)(2) and 23(a)(3) for purposes of settlement in that they present common questions that are typical of the class including:
a. Whether atrazine enters surface and ground water sources of drinking water when it is used as intended;
b. Whether Syngenta could have foreseen that its atrazine would enter surface water and consequently Class members' drinking water sources;
c. Whether Syngenta knew or reasonably should have known that atrazine would physically enter the ...