Decatur City Schools' success in settling its claims against 3M Co. by selling it the Brookhaven Middle School property for $1.25 million has some City Council members asking if Decatur needs to be more aggressive in pursuing claims against the company.
Councilwoman Kristi Hill questioned earlier this month why the city continues to use the Aquadome Recreation Center that’s on the same 40-acre tract at the corner of Eighth Street and Fifth Avenue Southwest as Brookhaven.
This property, a former city landfill, was used years ago to dispose of chemicals then used in 3M's manufacturing of various non-stick and stain-resistant products. Recent evaluations of the site found high levels of the chemicals, several of which studies have shown to be toxic, in surface water at the site.
3M is in the midst of a more in-depth study to evaluate contamination levels, by a class of fluorinated compounds called PFAS, in groundwater and soil. Hill wants the city to close the Aquadome for testing.
“I don’t know if I feel comfortable allowing other people’s kids to swim there when I probably wouldn’t feel comfortable with my own child swimming there,” said Hill, who is pregnant with her first child.
Councilman Billy Jackson said he agrees with Hill that there are concerns with the Aquadome.
“Testing needs to be done in the immediate area (of the Aquadome) and, if we find contamination, steps need to be taken to remediate the problem,” Jackson said.
Mayor Tab Bowling insists the Aquadome is safe and that the city can continue using it as a recreation center, a swimming pool and Decatur Youth Services offices.
“There’s no evidence that there’s anything inside the facility that would make it unsafe to anyone,” Bowling said. “If I had any kind of evidence there was a problem, it would have already been closed. There’s no threat to employees, residents or visitors to the center.”
Council members want to know why Carl Cole, the local attorney hired by the school board last fall for its case against 3M, could get such a quick resolution in settling DCS’ claims while the city’s legal issues involving PFAS linger.
“It’s amazing to me that Carl Cole was hired seven months ago and he’s got a deal for the school system,” Council President Paige Bibbee said.
Jackson said the city should hire Cole or Jeff Friedman, a Birmingham environmental attorney who worked with Cole, to take on 3M.
“Cole and Friedman are the only ones who have had any success in Alabama getting money out of 3M,” Jackson said.
The lawyers also represented West Morgan-East Lawrence Water Authority in a lawsuit involving the same chemicals. The lawsuit against 3M and Daikin America LLC settled for a combined $39 million.
Councilman Charles Kirby said the city and Decatur Utilities need to be filing claims against 3M, not remaining passive as co-defendants with the company, in the contamination cases.
He blames Barney Lovelace, the attorney who represents the city as a defendant in two lawsuits involving PFAS, referred to as "forever chemicals" because they do not decompose in the environment. One lawsuit, brought in 2017 by nonprofit Tennessee Riverkeeper, also names 3M, Daikin and Toray Carbon Fibers America.
The other, originally brought by a 3M employee in 2002 but expanded over the years to include numerous plaintiffs, also lists 3M, Daikin and Toray CFA as additional defendants. The allegations against the city in both cases result from its ownership of Decatur Utilities and co-ownership of the Morgan County Regional Landfill. Contaminated landfill leachate is piped to the DU wastewater treatment plant, which is not designed to remove the chemicals, and then into the river.
There are at least three closed landfills in Morgan County that contain the chemicals: the Brookhaven/Aquadome site, a site at Old Moulton Road and Ewell Lane, and a site at Deer Springs Road in the Flint area. Preliminary evaluations by 3M found high levels of PFAS at all three sites.
While she is concerned about the Aquadome site, Bibbee wondered why it is taking so long to get a resolution, especially as it relates to claims against the Morgan County Regional Landfill.
“Some of the council members think this (the length of time to reach a resolution) is getting ridiculous,” Bibbee said.
Jackson said he thinks Kirby is right in blaming Lovelace for the delays. He said another reason for a speedy resolution is the problem is hurting the values of homes near the Aquadome and other closed landfills.
Hill and Councilman Chuck Ard said they are also concerned about the length of the 3M cases. However, Hill said Jackson and Kirby didn’t help the process when they refused to go into executive session to discuss the case’s progress in March.
Hill said another delay was when most of the City Council, including her, refused to sign confidentiality papers in the case. At that point, Lovelace and City Attorney Herman Marks refused to talk more about the case to the council.
“Sometimes we don’t know the full scope of what’s being done so we need updates,” Hill said. “There has to be some levels of trust that we are all looking out for the safety of our residents.”
In a written statement to The Daily, Lovelace said both cases are in court-ordered mediation, so those involved are facing confidentiality requirements on the subjects discussed in mediation.
“Although we recognize the complexity in these cases, we also wish that these cases could have been resolved sooner. However, the claims in these cases are much more complicated than simply involving the purchase of a 15-acre site like Brookhaven,” Lovelace wrote.
Lovelace said the city, county and DU are working to ensure residents are protected.
“If a settlement is reached, it will involve much more than $1.25 million that the school system was paid for the Brookhaven school site,” Lovelace wrote.