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Despite $5 million Daikin settlement, many legal challenges remain over chemicals in Tennessee River

DECATUR, Ala. --  A federal lawsuit over chemicals discharged into the Tennessee River, filed in June by environmental group Tennessee Riverkeeper Inc., should be dismissed according to defendants 3M, the City of Decatur and BFI Waste Systems of Alabama.

The class of chemicals known as PFCs was cited in a May health advisory by the U.S. Environmental Protection Agency. Testing found levels in excess of recommended exposures for PFOS and PFOA in the West Morgan East Lawrence Water Authority drinking water.

What are potential health effects for PFCs? 

The authority recommended residents stop drinking its water for a time as it worked to secure water from other sources. The authority is currently working on adding an advanced filtration system to its water operations.

The water authority announced a $5 million lawsuit settlement last week with Daikin America. The company will pay for the $3.9 million filtration system, which is set to go online next month and is expected reduce the presence of PFOS and PFOA by 99 percent. The authority is still in litigation with 3M and Dyneon.

But the Riverkeeper lawsuit shows no signs of settling.

In arguing for the dismissal, Decatur points to its discharge permits authorized by the State of Alabama.

Decatur is an owner, and operates the Morgan County Landfill and city Wastewater Treatment plant.

The lawsuit wants the federal court to regulate the waste it receives at the landfill and monitor runoff. It also wants the court to monitor disposal of sludge and the runoff at the Wastewater Treatment plant.

“There are no allegations in the Complaint that the City has violated the terms of these permits,” Decatur argues in a motion to dismiss. “In fact, the permits specifically authorize the conduct that Riverkeeper seeks to enjoin in this lawsuit.”

Riverkeeper attorneys have asked the court to reject Decatur’s dismissal motion.

“While Plaintiff may be ‘attacking’ actions which Defendant feels it has been allowed by permit to do, that is ‘the very nature of an imminent and substantial endangerment citizen suit’, to ‘allow citizens to seek judicial remedies where, allegedly, an agency has failed to protect people or the environment from danger, the Riverkeeper’s argue.

BFI says its activities are also permitted. It operates the Morris Farm Landfill and the lawsuit is asking the court to order the monitoring of the waste the landfill receives and runoff from the landfill.

3M, which made the chemicals, PFOs and PFOA at its Decatur plant for more than 30 years before stopping in 2002, cites its ongoing remediation program monitored by the state in and around its Decatur facility.

“Although 3M has always (correctly) believed that PFCs are not harmful to human health or the environment, it agreed to conduct significant remediation at and around its facilities to address the presence of PFCs in the environment,” the company argues in its motion to dismiss the lawsuit.

3M says in the filing its remediation program runs until 2019 and requires it to “install a multi-layer cap over a portion of its property; install a network of monitoring wells; perform sampling and analysis; relocate certain materials; and restore the site’s environment.”

Riverkeeper replied to 3M’s contentions in a reply to the company’s dismissal motion.

“3M Company’s Motion to Dismiss rests on an untenable contradiction: 3M swears toxins it made and dumped are not hazardous, yet asserts it has diligently complied with its duty to sufficiently abate those contaminants,” the plaintiff’s argue in a response to 3M motion to dismiss. “Both claims cannot be true – and, indeed, both are false: PFOA and PFOS are highly toxic and 3M has not remotely remedied the substantial threats they pose.”

The defendants say the federal courts are barred from intervening, both because of the complexity of the environmental permitting by the state, and the need to avoid upsetting the state’s regulatory scheme.

But the Riverkeeper lawsuit argues a federal court is not barred if its proposed remedies – in this case to increase efforts to remove more chemicals before they go into the river – are consistent with the U.S. Clean Water Act.