Oct. 20—3M Co. has agreed to pay a settlement of $98.4 million to the city of Decatur, Decatur Utilities and Morgan County — including $35 million for a recreation center that will replace the Aquadome — to resolve a pair of chemical contamination lawsuits.

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The settlement, one of three related settlements involving the 3M plant in Decatur tentatively reached Tuesday, is contingent on approval by the City Council, County Commission and DU board. A joint meeting of the council and commission, open to the public, will take place next Tuesday at 6 p.m. at Ingalls Harbor Pavilion.

The lawsuits allege 3M and other defendants disposed of PFAS-contaminated industrial waste, causing toxins to enter the Tennessee River, groundwater 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 ballfields to replace the Aquadome complex," according to a statement from the city, and the new facility will include an indoor pool. 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.

The location of the new recreational complex has not been determined, according to the city.

Barney Lovelace, who represents the city, county and DU in the litigation, said the 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 the new recreation center is completed. 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, short for per- and polyfluoroalkyl substances, are called "forever chemicals" because they last so long in the environment. The chemical bonds are so strong that they don't degrade or do so only slowly and remain in a person's bloodstream indefinitely. They have been associated with serious health conditions, including kidney and testicular cancer, decreased fertility, liver damage, reduced birth weight and damage to the immune system.

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."

In addition to the $35 million for a recreation center, the $98.4 million includes:

—A $25 million payment to Decatur, Decatur Utilities and Morgan County. The money, according to the settlement agreement, "shall be applied toward projects within the City of Decatur and Morgan County that support and promote community redevelopment and recreation."

—$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, encompassing about 100 acres, are the oldest at the landfill and were built before federal regulations required synthetic liners beneath them and closed before regulations required a synthetic liner as a cap. He said the city expects the 3M-financed capping of the cells with synthetic liners will significantly reduce the PFAS-contaminated leachate that flows from the site.

—$9.2 million to reimburse the city and county for past PFAS costs.

—$7 million will go to DU for future sludge disposal costs. Sludge is the biosolid material removed from wastewater — including contaminated landfill leachate — before the water is treated and returned to the river.

Under the terms of the settlement, 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 city, county and DU will release 3M from future liability for PFAS under the settlement agreement unless such claims arise due to changes in laws or regulations relating to PFAS, or unless DU's treated drinking water reaches PFAS levels that exceed EPA health guidelines.

Tennessee Riverkeeper

The three overlapping settlements involve 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 PFAS in soil, groundwater and the river, as well as contamination levels of fish tissue, and to remediate the PFAS if necessary. 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. 3M is required to place $2.5 million in an escrow account for Riverkeeper's expenses in monitoring compliance, and the other defendants are required to pay lesser amounts.

David Whiteside, director of Riverkeeper, said the settlement is welcome but only the first step of his organization's efforts to ensure PFAS is cleaned up.

He said celebrating is premature until "we don't have to worry about this being in our water and our fish. ... The work's not over."

In another agreement, Daikin committed to paying 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.

Toray agreed "to undertake a pilot study to reduce the amount of GenX (a type of PFAS) it sends to Decatur Utilities."

Lovelace said the three settlement agreements together create an environmental path forward for the region.

"These settlements represent a very comprehensive plan to investigate and remediate any property contaminated with PFAS in our area," he said.

The plaintiffs' attorneys in the 2002 lawsuit are entitled under the settlement to up to $51 million in attorney fees, an amount that must be approved by retired Judge Glenn Thompson, who was appointed to preside over the case. The named plaintiffs in the case filed as a class action are businesses and landowners who allege the value of their property has been hurt by disposal of PFAS. It includes farmers who accepted contaminated wastewater sludge for use as fertilizer.

The lead attorney in the 2002 case is Leon Ashford of Hare Wynn, based in Birmingham.

The settlement agreement does not specify how much class members are entitled to receive. Class members appear to include anyone who lives in Morgan, Lawrence, Franklin, Limestone, Colbert and Lauderdale counties.

"The real value is in the remediation/clean up/containment which has been done as a result of our litigation and the injunctive relief we have obtained which will reduce the PFAS footprint going forward, including discharge to the river," Ashford said in an email.

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 health 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.

3M also issued a statement Tuesday.

"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," said Michelle Howell, 3M's Decatur site director.

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 settled a claim by Decatur City Schools by purchasing the former Brookhaven Middle School for $1.25 million. The 15-acre Brookhaven property sits over the same closed landfill that 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 and filter contaminated groundwater. 3M did not respond to questions about its plans for the property.

3M will also take ownership of the closed Old Moulton Road landfill and the closed Deer Springs Road landfill in Flint, both owned by the city.

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 are used in nonstick frying pans, water-repellent sports gear, stain-resistant rugs and numerous other consumer products.

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