DU vote could clinch one settlement on toxic chemicals, advance two others

Oct. 28—The Decatur Utilities board will vote today on whether to approve three settlements that involve industrial chemicals disposed of by Decatur companies and that received approval Tuesday night from the City Council and Morgan County Commission.

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Assuming DU approves the settlements, one will become binding as soon as 3M signs off on it. The other two will be subject to court approval in a hearing that will be scheduled in Morgan County Circuit Court after all the parties to the settlements sign off on them. DU will meet today at 3 p.m. at the DU auditorium, 1002 Central Parkway S.W.

While remediation, or cleanup, of toxic per- and polyfluoroalkyl substances (PFAS) is central to all three settlements, neither the two lawsuits that led to the settlements nor any of the three settlements include claims for bodily injury.

"These cases have nothing to do at all with any personal injury claims," said Barney Lovelace, the lawyer for the city, county and DU, and settlement of the lawsuits does not prevent anyone from asserting claims that PFAS exposure caused them injury. — Decatur settlement

The settlement that has the easiest path to finalization involves four parties: 3M, Decatur, Morgan County and DU. Under the terms of that $98.4 million settlement:

—The city would deed two closed landfills to 3M, leaving the company rather than the city with any future liability for PFAS and other waste they contain.

—The city would deed a third closed landfill, which is under Aquadome Recreation Center and adjoining ball fields, to 3M after the city has built a replacement. 3M would pay the city $35 million for use in building the new recreational facility.

—3M would pay $7 million in attorney fees to Lovelace's firm.

—3M would pay — for projects "that support and promote community redevelopment and recreation" — $7.2 million to the city, $5.4 million to the county and $5.4 million to DU.

—3M would pay $9.2 million to reimburse DU and the Morgan County Regional Landfill (jointly owned by the city and county) for past PFAS costs.

—3M would also pay $7 million to DU for future sludge disposal costs.

—3M would pay $22.2 million to place synthetic covers over 10 closed and contaminated Morgan County Regional Landfill cells, a step that environmental engineer Craig Benson, retained by attorney Leon Ashford in the St. John case, said would dramatically reduce the amount of contaminated leachate that seeps into the Tennessee River and groundwater. — Other settlements

The City Council and County Commission also approved the settlements of one Morgan County Circuit Court class action lawsuit (the St. John lawsuit) and one federal lawsuit (the Riverkeeper lawsuit), neither of which will be finalized unless the class action settlement receives approval from retired Circuit Judge Glenn Thompson, appointed to preside over the litigation that began in 2002.

Summarizing these two settlements, which are very similar, is more complicated because many of the requirements they impose on 3M and other defendants are essentially identical to a detailed consent order agreed to last year between 3M and the Alabama Department of Environmental Management. The question, then, is what the settlements add to the requirements ADEM has already imposed and is monitoring.

The main additions, according to Riverkeeper attorney Bill Matsikoudis and Ashford, are these:

—A mechanism that allows experts, retained by Riverkeeper but funded by 3M, to have input into the monitoring and remediation of sites contaminated with PFAS. Riverkeeper would have had no formal role in these matters under only the ADEM order.

—Increased involvement by the Environmental Protection Agency, in conjunction with ADEM and Riverkeeper, into decisions on how to remediate contaminated sites.

—Increased scrutiny of a 40-acre landfill on 3M's State Docks Road site, including an evaluation in 2031 as to whether the PFAS can be removed or more effectively sealed.

—More stringent obligations on the monitoring of PFAS migrating from the Daikin and Toray Fluorofibers sites, near 3M.

—Cleanup of a PFAS-contaminated lagoon at the Moulton wastewater treatment plant by Daikin at a cost of up to $4 million, with an agreement by BFI to accept the contaminated waste in its lined Hillsboro landfill.

—Roughly 30 farm owners who applied contaminated biosolids collected at the DU wastewater treatment plant to a total of about 5,000 acres in several counties will share in a $5 million 3M payment, with an average settlement of $1,000 per acre.

—Payment by the defendants of $51 million in attorney fees to Ashford's firm.

—Payment by the defendants of $1.09 million in attorney fees, based on a statutory fee for hours worked, to Matsikoudis' firm.

Unless they opt out of the settlement, hundreds of thousands of class members in the St. John settlement will receive no cash and will forfeit any future monetary claims they have for property damage caused by PFAS. — Health issues

PFAS have been linked with serious health conditions including kidney and testicular cancer, decreased fertility, liver damage, reduced birth weight and damage to the immune system. While the health effects of PFAS exposure were not on the agenda of Tuesday night's meeting where the commission and council voted, the topic occasionally came up.

The first reference involved Parkinson's disease, a malady that researchers have not typically linked to PFAS exposure.

Donnie Lane, 60, a Decatur resident who previously served on the school board, spoke at Tuesday night's meeting. He owns Enersolv, and in that capacity tested water samples at the Aquadome site and other landfills that have historically received 3M waste. He discovered PFAS contamination at those sites.

Lane stood up shakily and spoke quietly. He explained to the audience that he had been diagnosed with Parkinson's disease five years ago. He made no connection between his illness and PFAS, and emphasized that he supported the settlements, that DU drinking water is safe and that he expected to continue residing in Decatur.

Later in the meeting in comments directed toward Lane, Ashford explained that he originally brought the lawsuit in 2002 on behalf of James St. John, a 3M employee who had early onset Parkinson's disease and died from it in 2015.

"He thought, with everything that was in him, that that Parkinson's came from his work around these chemicals. The law in Alabama did not support that back then and it does not support that today. He'd have to prove specific causation. I just wanted you to know that that kind young man who worked for 25 years (at 3M in Decatur) also had this terrible disease," Ashford said.

Health effects of PFAS also came up when David Whiteside stood to speak. Whiteside is director of Tennessee Riverkeeper, but stressed he was speaking not in that capacity but as a Decatur resident. He spoke after Riverkeeper's lawyer, who had praised the three settlements.

Whiteside started by addressing the extremely low levels of PFAS contamination — 70 parts per trillion — that in 2016 triggered an EPA health advisory for drinking water. That such low levels of contamination are resulting in regulatory scrutiny is not an indication of EPA overreach, he said, but an indication of how dangerous the chemicals are.

"These PFAS chemicals are so toxic that they have to be measured in parts per trillion. So that is how serious of a public health risk we are talking about," he said.

Whiteside said he is frequently questioned by area residents about whether illnesses they have could have been caused by PFAS exposure. He said he has no answers for them, but answers are needed.

"Where are the public health studies? We need public health studies in this area. We need to know why people who are far too young are experiencing public health impacts," he said. "It's the least our public servants can do for us." — Dissent

Councilman Billy Jackson was the lone dissenter in the City Council's vote to approve the three settlements. Among other concerns, he said he did not trust legal advice received by the city in support of the settlements.

Jackson said in his 25 years on the council, "I have found it increasingly difficult to accept what Mr. Lovelace says at face value."

"That lack of trust has come over time," Jackson said to Lovelace, who responded, "Let me say this, Billy, it cuts both ways."

Lovelace said Jackson had failed to take advantage of opportunities to learn about settlement discussions over the course of the lawsuit. "You can criticize me all you want, but I will tell you, I am extremely proud of this settlement," he said.

Council President Jacob Ladner interjected.

"I would say let's not be distracted by personalities ...," Ladner said. "The real issue is what was presented at the beginning of this presentation, which was the goals of the mediation."

Those goals, Ladner said, were "remediation of existing (PFAS) issues that have been there for decades, making sure that those were taken care of. Making sure that any future potential harm to our citizens is addressed, and then making sure that the city and county and DU are taken care of and protected from a monetary standpoint. We have accomplished through this settlement every single one of those goals and more."

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