Decatur City Schools has filed a notice that it intends to sue 3M Co. over industrial toxins leaking from a closed landfill beneath the former Brookhaven Middle School.

In the letter, sent to 3M and filed with the Alabama Department of Environmental Management and the U.S. Environmental Protection Agency, DCS says chemicals are discharging from the landfill into a “creek and groundwater leading to the Tennessee River.”

The letter advises that DCS will seek a court order “requiring the cleanup of the solid and hazardous waste and removal of PFOA and PFOS, and other chemicals from the soils, surface water, and groundwater on the property.”

PFOA and PFOS, once used by 3M’s Decatur plant in the manufacture of Scotchgard and other nonstick products and coatings, are in a family of per- and polyfluoroalkyl substances, or PFAS. They are known as "forever chemicals" because they do not degrade in the environment.

The notice was signed by Jeff Friedman and Lee Patterson of Birmingham-based Friedman, Dazzio, Zulanas & Bowling. Decatur attorney Carl Cole is local counsel for DCS in the action. The same three lawyers represented West Morgan-East Lawrence Water Authority in a lawsuit against 3M and Daikin America LLC involving PFOA and PFOS contamination of drinking water. Daikin settled last year for $4 million and 3M settled in March for $35 million.

The letter was filed pursuant to the federal Resource Conservation and Recovery Act (RCRA), which requires 90 days advance notice before filing a suit demanding cleanup of a dumping site.

DCS and its lawyers issued a prepared statement Friday in response to a request for comment.

“A RCRA letter is a prerequisite to filing a lawsuit. It doesn’t necessarily mean one will be filed. Hopefully it won’t be necessary," according to the statement. "Decatur City Schools are handling this the right way and intend to be proactive. The hiring of these attorneys that navigated the process for West Morgan-East Lawrence Water Authority is a clear signal of how seriously DCS is taking this matter.”

In July, 3M announced it would investigate whether PFOA and PFOS were present in the old Brookhaven landfill. Last month, 3M filed with ADEM a 346-page Preliminary Investigation Work Plan of the site prepared by its contractor, GHD Services Inc.

According to GHD’s investigation, the 40-acre tract — home to Brookhaven, the Aquadome, a playground and numerous ball fields — operated as a landfill from the mid-1940s until 1963. ADEM records indicate municipal and industrial waste was disposed of in the landfill. The Aquadome remains open. Brookhaven Middle School closed last year.

The old landfill is between Eighth Street Southwest on the north, an alley behind Beard Street on the south, Fifth Avenue on the west and Second Avenue on the east. The Decatur Board of Education owns the 15 acres around Brookhaven, at the southwest corner of the landfill site, and the city of Decatur owns the rest.

GHD’s preliminary investigation involved taking several surface water samples from the Brookhaven and Aquadome properties. PFOA and PFOS were found in all the water and sediment samples, except for a sample from a pipe that drains the Aquadome pool. Groundwater was not tested because existing monitor wells were not functional, but testing found the highest concentrations of PFOA and PFOS in water collected from a pipe believed to contain groundwater.

The combined PFOA/PFOS levels at this collection site were 789 parts per trillion, 11 times the EPA’s recommended drinking-water maximum. While it is in the midst of a rulemaking process, the EPA has not set mandatory PFAS limits on drinking water, or on soil, surface water or groundwater. 3M advised ADEM that it plans to do a more intensive evaluation of the site, which will include testing of the groundwater.

"The school board ... had no knowledge of 3M's hazardous materials on the property when they purchased it, and there was no reason to believe the property had been used as a hazardous industrial dump site," according to the notice of intent to sue. "In 2018 the school board learned that 3M's hazardous materials were possibly contaminating the school board's property."

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Health risks

The notice, dated Nov. 26, goes into detail on risk factors associated with PFOA and PFOS.

“The human health risks caused by exposure to low levels of PFOA, PFOS and related chemicals include cancer, immunotoxicity, thyroid disease, ulcerative colitis and high cholesterol,” according to the letter, which cites several studies on the chemicals. “PFOS crosses the placenta in humans, accumulates in amniotic fluid, and has been detected in umbilical cord blood.”

A spokeswoman for 3M on Friday said waste at the landfill was disposed of properly, based on applicable regulations at the time.

“3M lawfully disposed of waste at the former Brookhaven landfill," said Fanna Haile-Selassie. "We have publicly shared that we are investigating Brookhaven and certain other closed waste disposal sites in Morgan and Lawrence counties, and we will work with ADEM to ensure these sites are treated according to 21st century waste management standards, as necessary.”

Decatur Councilman Billy Jackson, whose district includes the old landfill, said he supports the DCS action against 3M and questioned why the city of Decatur, which owns 25 acres over the landfill, is not pursuing similar legal remedies.

“We’re in no different situation than Decatur City Schools. We have to look at the safety and well-being of our citizens. We need to get it cleaned up,” Jackson said.

Decatur is a defendant, along with 3M, Daikin and other industries, in two lawsuits involving PFOA and PFOS contamination. Jackson said he’s frustrated the city has not filed cross-claims against 3M in those lawsuits, and that it is being less aggressive than DCS on the Aquadome/Brookhaven landfill.

Decatur attorney Barney Lovelace represents the city in the two pending lawsuits, and he said the parties to those lawsuits are in the midst of court-ordered mediation.

"In the mediation of these cases the city is addressing its claims relating to any PFAS contamination at any of the three old landfills, which includes the Aquadome property owned by the city," Lovelace said in an email.

Because of a court rule, he said, "we are unable to discuss the substance of any matters being addressed in mediation. We can assure you and the public that the city is being very proactive on all aspects relating to the presence of PFAS in the environment in and around Decatur and Morgan County."

Councilman Charles Kirby’s district lines are within two blocks of the landfill site on the south and east. He said the city should consider legal action against 3M, which is located just outside Decatur city limits and employs about 960 workers.

“I don’t want to punish industries, but I sure would like to see it cleaned up,” Kirby said. “I am in favor of getting the whole problem resolved, and if filing suit is the only way to do that, then we need to do what’s necessary on behalf of our citizens.”

Written by the The Decatur Daily and distributed by Tribune Content Agency, LLC.