DECATUR, Ala. — The discovery of PFAS chemical contamination at Decatur’s former Brookhaven Middle School led the board of education to threaten to sue 3M in December. The property was sold by the school board to 3M in May for $1.25 million.
But the Decatur-owned Aquadome Recreation Center, which sits right next to Brookhaven, wasn’t sold.
The difference highlights a dilemma.
The City of Decatur and 3M are involved, as co-defendants in lawsuits involving 3M chemicals, but some Decatur officials are arguing the company should pay to clean up the chemicals in Decatur. And, they say, Decatur should consider joining plaintiffs suing 3M, rather than sitting on the same side of the courtroom as the Minnesota-based corporate giant.
Brookhaven Middle School was opened in 1971 and closed in 2018. The City of Decatur said it was built on an old landfill and it asked 3M to investigate in July of 2019. Three former landfills in Decatur and Morgan County were found to contain high levels of PFAS and other chemicals.
3M made PFAS chemicals for decades at its Decatur plant. They stopped making the chemicals PFOA and PFOS — which were used to create water- and stain-resistant products — around 2002. The company still produces similar chemicals. The PFOA and PFOS chemicals don’t break down in water and can lodge in the human body. In May 2016 the EPA issued a lifetime health advisory of 70 parts per trillion.
The EPA said it is working on regulations for PFAS chemicals, but currently the health advisory is the only federal guidance. There are no regulations for PFAS found in the ground, like at Brookhaven. The chemicals have been linked to a number of health problems, including some cancers.
3M has a consent decree with the Alabama Department of Environmental Management to clean up PFAS chemicals found at its plant. The company paid the State of Minnesota $850 million in 2018 to resolve PFAS-contamination claims.
3M also paid the West-Morgan East Lawrence Water Authority $35 million in April 2019, to settle claims the company’s chemicals contaminated residents’ drinking water.
3M, Decatur Utilities and the City of Decatur are co-defendants in two lawsuits that accuse the company of polluting the Tennessee River with the PFAS chemicals. Those cases are in mediation.
Barney Lovelace, an attorney representing the City of Decatur in the 3M lawsuits issued a statement to WHNT News 19 that addresses the litigation, and some city council members called for Decatur to take action over the contamination and efforts to protect the government from liability if there are any PFAS laws or regulations developed.
“On behalf of the City, County and DU we are pursuing claims in that mediation which relate to the Decatur-Morgan County Regional Landfill, expenses incurred by DU relating to PFAS, the presence of PFAS at three former closed landfills located at what is now the Aquadome site, on Deer Springs Road and Old Moulton Road, and to provide for the protection of these governmental entities in the future from any new regulations or laws relating to PFAS,” the statement reads in part. “Although we recognize the complexity in these cases, we also wish that these cases could have been resolved sooner. However, the claims and issues in these cases are much more complicated than simply involving the purchase of a closed school like Brookhaven.”
The statement also indicates the city is considering action against 3M.
“In mediation, by Order of the Courts, all actions in these cases are stayed (put on hold) pending further Order of those Courts,” the statement says. “So, we are barred by Court Orders at this time to pursue claims in Court against 3M until allowed to do so by the Courts.”
3M declined to comment Thursday on the statement issued by Lovelace and on the question of whether the company is planning to buy the Aquadome property.
In January, 3M addressed cleanup issues and said the company planned to be more forthcoming about the chemicals.
“We are part of the solution to ensuring communities have confidence in their water. This includes addressing contamination of sites where we produced or disposed of PFAS,” 3M CEO Mike Roman said during a company earnings call in January.
In that same January call, Roman also announced the company is facing a new potential problem — a federal grand jury.
“In connection with our Decatur disclosures 3M received a grand jury subpoena from the U.S. Attorney’s office for the Northern District of Alabama in late December 2019,” Roman said.
During the COVID-19 pandemic federal grand juries have not been meeting.
Some Decatur City Council members say they have concerns about the future of the Aquadome property.
“From day one, it’s not about a check for me, it’s not about money in the city’s account from 3M. It’s about making our city whole,” said Paige Bibbee, Decatur City Council president.
Bibbee says she wants 3M to pay for a new recreation center and clean up the Aquadome site.
“You can actually walk that ditch that kind of separates the Brookhaven property from the Aquadome property and you can see some leaching of sorts from bank. So, I think it’s very important that they go ahead and fix that,” Bibbee said.
Council member Charles Kirby would like to take that idea a step further.
“An independent, and maybe Decatur Utilities and 3M all needs to chip into a fund to have an independent test result and discuss how safe the ground is, how safe any runoff is, how safe the residences around that property are,” Kirby said. “Our citizens need to know this and they need to have solid answers instead of political posturing.”
Council member Kristi Hill also has concerns about the property. She provided a statement to WHNT News 19 saying, “Fields are closed, I’d prefer our kids not to be playing on the grounds or in the ditches.”
Bibbee says the council began the process of hiring an environmental attorney before the economy was shut down due to the COVID-19 pandemic.
WHNT News 19 asked Decatur Mayor Tab Bowling for comment. Bowling did not comment, but Lovelace, the lawyer representing the city in the 3M litigation responded saying, “The city has tested the water in the Aquadome supplied by Decatur Utilities.
The statement reads in part, “Those tests have shown the level of PFAS to be well below the EPA lifetime advisory for drinking water. We are unaware of any public health hazard relating to being physically present in the Aquadome facility which is located on land that contains PFAS, but in the mediation we are certainly addressing those concerns that have been raised.”
The statement also notes that swimming in water containing PFAS isn’t a problem, according to health advisories from Michigan and Minnesota. It also cites Alabama State Health Officer Scott Harris telling a local newspaper in 2019, “Swallowing or dermal contact with PFAS-containing surface water through recreational activities are not expected to cause harm to human health.”
Councilman Kirby says a long-term plan is needed to deal with PFAS contamination.
“We need a written enforceable plan in place for any additional properties that could show up contaminated. And we know that there are some, there will be some,” he said. “The question is how many will there be and how many years will it be until it’s disclosed?”
Bibbee says if a resolution of the lawsuits does not come soon she would like to see changes to the city’s legal team.
“If these meetings and these negotiations don’t pan out here in the next month or so at least, then I think yeah, we have to look at different options,” Bibbee said. “And if that option is to go with a totally different firm, or contact some of the attorneys that have been in some of these other litigation cases with these chemical companies, I think it’s time we pulled the trigger and do that.”
Attorney Lovelace said the concerns are being addressed, but he can’t provide details because the lawsuits are in mediation.
Lovelace’s statement reads in part: “The City, County, and DU are diligently working in this litigation to insure that the citizens in our area are protected in the future from the presence of these chemicals in our environment. If a settlement is reached, it will involve much more than the $1.25 million dollars that the school system was paid for the Brookhaven School site.”
Kirby is already ready for a change in the city’s approach.
“Everybody that was involved in the past needs to go,” he said. “There needs to be a new mindset, there needs to be a new resolution passed by council, which has been reluctant to even have it on the table for discussion. We need to start with a new effort and advise the judge in the current cases that we need to be changing sides and we’re going with a new plan.”
Bibbee and Kirby both want the city move to the plaintiff’s side in the two ongoing lawsuits.
WHNT News 19 asked Tennessee Riverkeeper, one of the plaintiffs in those lawsuits, about Bibbee and Kirby’s call to switch sides and become a plaintiff against 3M, not a co-defendant.
The statement from the organization’s co-founder, David Whiteside reads, “To protect our public health, it is essential for Decatur and Morgan County officials to be more aggressive in cleaning up widespread PFAS pullution and conducting independant scientific testing for these forever chemicals. In my opinion, the city of Decatur should have been suing 3M all along.”