By Evan Belanger
Attorneys for the city of Decatur and Morgan County have filed court motions that could allow the local governments to file claims against 3M Co. and other manufacturers in an ongoing lawsuit over environmental contamination with chemicals named in a recent EPA health advisory.
“Who the city and county may file against has not been completely decided, although I would expect the claims would be asserted against 3M,” said Barney Lovelace, attorney for the city and county, which are defendants in the lawsuit.
Lovelace and other attorneys with the Harris Caddell & Shanks law firm in Decatur filed a motion this week asking Morgan County Circuit Judge Glenn Thompson to lift a stay barring parties in the suit from filing cross-claims and certain other matters while the dispute was in court-ordered mediation.
The city, county, 3M and other companies are defendants in the lawsuit, which has multiple plaintiffs.
This week’s motion noted two mediation sessions, each lasting two days, in January and March had not resolved the dispute and no other mediation sessions have been scheduled.
“The City and County contend that if the parties are to participate in any further mediation sessions it would be beneficial to that process if the city and county were allowed to assert claims against one or more existing parties in this action,” the motion stated.
A cross-claim would mark the first time the city and county have attempted in court to shift liability in the lawsuit to 3M Company and other manufacturers that used perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA).
In response to a state agency’s concerns about the chemicals, 3M says it has spent $65 million on environmental rehabilitation efforts near its local plant.
The U.S. Environmental Protection Agency in May issued a health advisory that lifetime exposure to the two chemicals in drinking water should not exceed concentrations of 70 parts per trillion to avoid possible health risks.
The lawsuit was filed in 2002. In 2015, the city and county were named as defendants. The plaintiffs alleged the two governments had contributed to contamination of the Tennessee River and other areas by accepting industrial waste laced with the chemicals at the Morgan County Regional Landfill and failing to remove the chemicals from landfill leachate that was treated at Decatur Utilities’ sewer plant before being discharged into the river.
The city owns and operates Decatur Utilities, and the city and county jointly own the landfill.
Decatur Mayor Don Kyle said the city and county have long maintained the companies that benefited from use of the chemicals should pay the cost of removing them and that the city has already spent “several million dollars” as a result of the contamination.
“Our goal is to not let (the cost) end up falling on our citizens and our ratepayers,” he said.
While EPA and the Alabama Department of Environmental Management have not established regulations that prohibit the discharge of the chemicals, 3M began phasing out all perfluorinated chemicals, including PFOA and PFOS, in 2000. The company ended the majority of its use within two years and all “significant” use by 2008, according to the company’s annual filings with the U.S. Securities and Exchange Commission.
According to an EPA fact sheet, 3M was the primary manufacturer of PFOS prior to the phase-out. The company had used PFOA and PFOS for Teflon-like nonstick products, such as Scotch Gard.
Industrial defendants that were named in the suit include 3M and its subsidiary, Dyneon LLC, Daikin America Inc., Toray Fluorofibers (America) Inc. and its sister company, Toray Carbon Fibers America Inc., all of which operate manufacturing plants in Decatur.
On Wednesday afternoon, the day after it filed its motion, Harris Caddell & Shanks removed from its website the names of 3M and Toray Carbon Fibers America, which were included in a list of the law firm’s “representative clients.”
Lovelace said the law firm does not consider either company to be regular clients and has not done any work for either related to the chemicals at issue in the suit.
The law firm continues to serve as general counsel for the Decatur Industrial Development Board, which has previously granted tax abatements to 3M, Daikin America, Toray Carbon Fibers America and other local industries.
Lovelace said any cross-claims filed by the city and county would have nothing to do with Decatur Utilities’ drinking water supply. DU’s intake is upstream of Decatur industries and tests of the water system have indicated no contamination.
Attorneys for the plaintiffs with Hare Wynn Newell & Newton in Birmingham filed a response Wednesday, saying they have no opposition to lifting the stay for the “limited” purpose of filing a cross-claim against defendants in the suit.
“We’re involved in a mediation process and it’s best, if you’re talking about resolving all claims, to have all claims,” said James Pratt III, an attorney with Hare Wynn.
William Brewer III, the Dallas-based legal counsel to 3M, said the stay should be lifted in its entirety because the “mediation has proven unsuccessful” and doing so would allow parties to move forward with the litigation.
A former 3M employee filed the suit in 2002, seeking unstated damages and alleging he suffered an elevated risk of health problems as well as property damage from exposure to perfluorinated chemicals at the Decatur plant.
In 2005, the court granted 3M’s motion to dismiss personal-injury claims, and in 2006, the plaintiff’s legal counsel filed an amended claim limiting the case to property damage on behalf of residents and property owners in the vicinity of the Decatur plant.
In October, the West Morgan-East Lawrence Water Authority and residential water customers filed a separate complaint in federal court against 3M, Dyneon and Daikin America, alleging the companies were reckless and negligent by releasing toxic chemicals, including PFOA and PFOS, which found their way into the Tennessee River and eventually into their drinking water.
Presence of the chemicals in water distributed by the West Morgan-East Lawrence system caused its general manager to warn customers not to drink or cook with its water in June. After the authority began blending its water with water from Decatur Utilities, PFOA and PFOS weren’t detected in fresh samples and the health advisory was lifted.
The nonprofit environmental organization Tennessee Riverkeeper Inc. filed another federal lawsuit in June against 3M, BFI Waste Systems, the city of Decatur and its utility department, as well as Morgan County.
That suit alleges the dumping of PFOS and PFOA in landfills and the Tennessee River contaminated groundwater, private water supplies, the river and its tributaries and wildlife, and public drinking water supplies.
Legal counsel for 3M and BFI filed separate motions to dismiss that suit last week on multiple grounds, including that BFI discharges its leachate in accordance with a permit issued by the Alabama Department of Environmental Management and that 3M is in the midst of a remediation program that will make Riverkeeper’s argument moot.
“We believe the remedy being sought by Tennessee Riverkeeper would interfere with the ongoing work between our company and state regulators — work that has led to the decreased environmental presence of these materials,” Brewer said.
According to a voluntary agreement between ADEM and 3M, the company deposited wastewater sludge on the southern portion of its 864-acre campus on Alabama 20 from 1978 to 1998, resulting in the presence of PFOA and PFOS in soil, groundwater and vegetation at the site.
In the agreement, 3M committed to install a “multilayer cap” over the site to contain the chemicals, install a network of monitoring wells and take other actions to restore the site.
David Whiteside, executive director and founder of Tennessee Riverkeeper, said remediation efforts by defendants do not do enough to “fix their toxic problem.”
Travis Carter, director of media and community relations for Brewer’s firm, said the 3M remediation project began in 2006 and will continue through 2019. Brewer said 3M has already spent more than $65 million on local remediation efforts.
Since the company stopped using the chemicals, monitoring conducted by ADEM and 3M from 2002 to 2012 found no increase of PFOS in fish or water in “certain parts of the Tennessee River,” he said.
Carter noted that a “no consumption” advisory for fish in effect as recently as 2012 for Bakers Creek, where 3M allegedly discharged wastewater containing the chemicals from its treatment plant, had been revised to the current “one-meal-per-month” fish advisory.