3M to pay Decatur, DU, Morgan County $98.4M in chemical contamination settlement

·7 min read

Oct. 19—3M Co. will pay a settlement of $98.4 million to the city of Decatur, Decatur Utilities and Morgan County to resolve a pair of chemical contamination lawsuits, according to the city.

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The lawsuits allege 3M and other defendants disposed of PFAS-contaminated industrial waste, causing toxins to enter the Tennessee River and numerous dump sites in Morgan County.

The largest portion of the 3M settlement, $35 million, will go to the city "for a new recreational facility and ball fields to replace the Aquadome complex," according to a news release from the city. The 25-acre Aquadome facility, currently in use, sits above a closed municipal landfill that contains PFAS-contaminated 3M waste, according to the Alabama Department of Environmental Management.

According to the city's statement, the city will build a new recreation center with an indoor pool and ball fields, but the location of the complex has not been determined.

Barney Lovelace, who represents the city in the litigation, said Aquadome will remain open to the public until a new recreational complex is built. He said the city will deed the Aquadome property to 3M after it is closed. Lovelace said screening of soil at the Aquadome property indicates it has PFAS levels below those that require remediation under Environmental Protection Agency guidelines.

PFAS, called "forever chemicals" because they last so long in the environment, have been associated with serious health conditions, including cancer and reduced birth weight.

Lovelace's firm, Harris, Caddell & Shanks, is receiving $7 million in legal fees, which Lovelace said "did not come out of the settlement amount being paid to our clients."

Another $25 million represents a payment to Decatur, Decatur Utilities and Morgan County.

3M will pay $22.2 million to cap 10 cells at the Morgan County Regional Landfill, jointly owned by the city and county. 3M and other industries disposed of PFAS-contaminated waste in the landfill in the past. Leachate from the landfill, which enters the river via the Decatur Utilities wastewater treatment plant, has high levels of PFAS.

Lovelace said the 10 cells are the oldest at the landfill, and were built before federal regulations required liners beneath them. He said the city expects that the 3M-financed capping and closure of the cells will significantly reduce the PFAS-contaminated leachate that flows from the site.

3M will pay $9.2 million to reimburse the city and county for past PFAS costs, and another $7 million will go to DU for future sludge disposal costs.

Under the terms of the settlement, according to the city's statement, 3M will pay all costs involved in investigating the extent of PFAS groundwater contamination at the landfill and — if ADEM requires it — treatment of the groundwater.

The settlement involves two separate lawsuits, one originally filed in 2002 by a 3M employee and another filed in 2016 by the nonprofit Tennessee Riverkeeper, represented by in-house counsel Mark Martin and the New Jersey law firm of Matsikoudis & Fanciullo.

The Riverkeeper settlement requires 3M, BFI (owner of the Morris Farm Landfill in Hillsboro), Daikin and Toray Fluorofibers to take various steps to monitor and if necessary remediate PFAS in soil, groundwater and the river. It also provides Riverkeeper with input into any remedial action, and the defendants agree to pay ongoing fees incurred by Riverkeeper in monitoring the defendants' compliance.

Under the settlement, 3M will place $2.5 million in an escrow account to cover legal and expert fees incurred by Riverkeeper in monitoring compliance and proposing remedial actions. BFI will evaluate PFAS levels in its landfill's groundwater and pay up to $100,000 for Riverkeeper's use to hire experts to determine if PFAS can be removed from the leachate.

Daikin must perform a compliance audit and share groundwater monitoring results with Riverkeeper. Daikin will place $200,000 into an escrow account for use by Riverkeeper in hiring experts and attorneys. Toray also must perform a compliance audit and will pay $17,500 toward expert monitoring of its actions. It also agreed "to undertake a pilot study to reduce the amount of GenX it sends to Decatur Utilities."

In a separate settlement, Daikin has also agreed to pay for the removal, remediation and groundwater monitoring of the sludge retention lagoon of the Moulton wastewater treatment plant at a cost of up to $4 million.

The plaintiffs' attorneys in the 2002 lawsuit are entitled under the settlement to up to $51 million in attorney fees and costs, an amount that must be approved by retired Morgan County Circuit Judge Glenn Thompson, who was appointed to preside over the case.

The proposed settlement with Decatur, DU and Morgan County will be the topic of a joint meeting of the Decatur City Council and the Morgan County Commission at 6 p.m. Oct. 26 at Ingalls Harbor.

There are hundreds of PFAS but most research and the only EPA health advisories for drinking water involve two, PFOA and PFOS. According to Decatur Utilities, its drinking water contains a combined 6 parts per trillion of PFOA and PFOS. The EPA lifetime advisory for drinking water is a combined 70 parts per trillion for the two chemicals. DU's water intake is upstream of the wastewater treatment plant and 3M.

In the city's statement, Decatur Mayor Tab Bowling said the settlement would benefit the city.

"This settlement will fund improvements that will make the environment in Decatur and Morgan County healthier. We are pleased that 3M is funding the development of a replacement rec center that adds a quality of life benefit for the whole city," he said.

Lovelace said he was pleased with the settlement.

"The significant monetary settlement and the substantial remediation work to be performed will ensure that our environment is preserved for all to enjoy," he said in the city's statement.

3M also issued a statement today.

"Through this agreement, we can resolve these matters and take action that will strengthen Decatur for the future — a great thing for 3M and this community," Michelle Howell, 3M's Decatur site director, said in the statement.

In addition to the Morgan County Regional Landfill and the Aquadome property, PFAS-contaminated waste that originated at 3M has been found at numerous other dump sites in Morgan and Lawrence counties, according to a consent order entered into last year between 3M and the Alabama Department of Environmental Management. That order requires 3M to investigate and remediate the dump sites.

3M previously bought the former Brookhaven Middle School from Decatur City Schools for $1.25 million. The 15-acre Brookhaven property sits over the same closed landfill that also is under the Aquadome property.

Lovelace said his understanding is that after the city deeds Aquadome to 3M, the company will demolish both the Aquadome and Brookhaven structures and create a park. He said the only expected ongoing remediation of the old landfill will involve extraction wells on the east side of the property to remove contaminated groundwater.

In April 2019, 3M settled a lawsuit by the West Morgan-East Lawrence Water Authority for $35 million. WMEL alleged that PFAS that entered the Tennessee River by way of landfill leachate, groundwater and runoff had contaminated its drinking water. WMEL used the money to build a reverse osmosis filtration plant capable of removing PFAS from the water.

PFAS is short for per- and polyfluoroalkyl substances that are used in nonstick frying pans, water-repellent sports gear, stain-resistant rugs and countless other consumer products. The chemical bonds are so strong that they don't degrade or do so only slowly in the environment and remain in a person's bloodstream indefinitely.

Under a strategy announced Monday, the Environmental Protection Agency will move to set aggressive drinking water limits for PFAS under the Safe Drinking Water Act and will require PFAS manufacturers to report on how toxic their products are. The agency also will designate PFAS as hazardous substances under the so-called Superfund law that allows the EPA to force companies responsible for the contamination to pay for the cleanup work or do it themselves.

eric@decaturdaily.com or 256-340-2435. Twitter @DD_Fleischauer.