Decatur Utilities approves toxic chemical settlements; would get $18.4 million from 3M

Oct. 29—The Decatur Utilities board voted unanimously Thursday to approve three toxic waste settlements, clearing the way for one case to settle when 3M signs it and for two others to continue progressing in a process that requires court approval.

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The Decatur City Council and Morgan County Commission approved the three settlements in a joint meeting Tuesday.

The settlement that most directly affects DU and that received the most attention from DU officials at Thursday's called board meeting is a $98.4 million settlement between 3M, DU, the city of Decatur and Morgan County, referred to as the Decatur settlement.

David Langston, who along with Barney Lovelace represents all three governmental entities, said DU will receive $18,429,438 from 3M in the settlement.

Most of the money involves reimbursement for past and future disposal of sludge from the DU wastewater treatment plant.

DU General Manager Ray Hardin said the Alabama Department of Environmental Management notified DU in November 2008 that the sludge — biosolids removed during the treatment of sewage — had high levels of per- and polyfluoroalkyl substances (PFAS). Up until that time, Hardin said, DU had minimal sludge disposal costs because a contractor transported the sludge to farmers who applied it to their land as fertilizer.

"We had many farmers who requested that material to be placed on their land as fertilizer," Hardin said. "It was a beneficial use; they really appreciated that material. We contracted with a company called Synagro to work within our plant site. They operated our dewatering equipment, they hauled the material to the farmers and they spread the material on their farms."

Since ADEM advised DU of the PFAS contamination, Synagro has instead transported the contaminated sludge to the Morgan County Regional Landfill, where DU must pay tipping fees.

"We can expect that landfilling the sludge will be our only option for the foreseeable future," Hardin said.

The 3M settlement includes $5,929,438 for extra expenses for sludge disposal from 2008 until now, and another $7 million for estimated sludge disposal costs over the next 20 years.

"We asked 3M to reimburse us for those costs and they agreed to do so," Langston said.

He said the $7 million payment assumes disposal costs of $350,000 per year, but 3M agreed to make the payment upfront.

The approximately 30 farmers who had the sludge applied to a total of 5,000 acres for the 12 years prior to 2008 will share in a $5 million payout from the settlement of a class action lawsuit, called the St. John case, if that settlement is approved by retired Morgan County Circuit Judge Glenn Thompson. The judge's approval of the St. John case is also a precondition to settlement of a federal lawsuit brought by Tennessee Riverkeeper.

The Decatur settlement also allocates $5.4 million to DU for projects "that support and promote community development and recreation." Hardin said the utility had not decided how that money will be used.

"In addition, there's a $100,000 payment that's going to be made by 3M for mandatory PFAS and related testing costs," Langston said. "Looking forward, ADEM requires certain PFAS-related testing for our (wastewater treatment plant) effluent, and 3M's reimbursing us with an upfront payment for those costs."

Langston said the cost of testing the effluent is about $2,500 to $3,000 per year.

He said an important part of the Decatur settlement is that it does not entirely release 3M or other industries from future liability to DU.

"In the event of changes in laws or changes in any governmental regulations, we have the right to reassert any claims. So we are not fully releasing any party with this settlement," Langston said. "If there are any regulatory changes, we've got the ability to go back and reassert claims. ... Those are significant protections that we have that are included in the settlement."

Hardin said DU drinking water is safe, despite PFAS contamination coming from sources downstream of the water intake.

The Environmental Protection Agency is in the process of developing regulations that likely will include specific PFAS limits on drinking water. In 2016, the agency adopted a health guideline for drinking water applying to two types of PFAS: PFOA and PFOS. The EPA said lifetime consumption of drinking water with a combined concentration of PFOA and PFOS exceeding 70 parts per trillion could be harmful.

Hardin said after the meeting that DU drinking water averages between 5 and 6 parts per trillion of PFOA and PFOS. Some of that, he said, comes from Flint Creek. — Flint Creek

A former municipal landfill on Deer Springs Road in Flint previously received 3M waste. Runoff and groundwater from that landfill has high levels of PFAS, and the contaminated water enters Flint Creek.

Flint Creek enters the Tennessee River upstream of the DU water intake. 3M is in the process of evaluating and remediating PFAS contamination at the Deer Springs landfill, and one component of the Decatur settlement is that 3M will take ownership of this landfill and two other closed, city-owned landfills.

Hardin said he expects 3M's remediation of the Deer Springs landfill to reduce PFAS levels in Flint Creek and possibly reduce PFAS levels in DU drinking water.

The only member of the public to speak at the board meeting, and one of the few present, was Decatur resident Don Gowen. Gowen said he was frustrated that DU is not more open with the public about the amount of PFAS it is discharging into the river through the wastewater treatment plant.

While DU does not routinely advise the public of PFAS levels in the wastewater it discharges into the river, it files quarterly reports with ADEM that list the concentration of several PFAS, including PFOA and PFOS. The most recent report, for the quarter ending Sept. 30, listed PFOA concentrations of 249 parts per trillion and PFOS at 2 parts per trillion.

After the meeting, Gowen said DU needs to do more to remove PFAS from wastewater before it enters the river.

"No industry or governmental body should use our river as a sewer," he said. "No industry or governmental body has the right or should be allowed to discharge back into our river any water less pure than when it was withdrawn for use by the industry or governmental unit."

Hardin said it is technically possible to remove PFAS from wastewater effluent before it enters the river, but DU has not evaluated the cost of such treatment.

"Our position on that has always been that eliminating the sources of PFAS coming into the (wastewater treatment) plant would be far more economical than to treat 30-40 million gallons a day leaving the plant," Hardin said after the board meeting. "Until such time as regulations are promulgated as to what that limit should be, we've got to accept the fact that there are going to be some of those chemicals present in that water leaving the plant."

Hardin said that if regulations ultimately set limits on the PFAS that can be discharged into the river by DU, the settlement with 3M does not preclude the utility from asserting a claim against industries for the cost of filtering the wastewater.

A major source of PFAS that enters the wastewater treatment plant is leachate from the Morgan County Regional Landfill.

While leachate from the landfill continues to be pumped to the DU wastewater treatment plant, one aspect of the Decatur settlement is that 3M is required to spend $22.2 million to place synthetic liners over the 10 oldest cells in the landfill, cells that are thought to have the highest concentrations of PFAS. The goal is to reduce infiltration of rainwater into the cells, which are now topped with clay. By reducing that infiltration, according to an expert retained in the St. John case, the volume of leachate pumped to the DU treatment plant should be dramatically reduced.

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