Attorneys defend $51M legal fee in class action suit involving toxic chemicals

Oct. 24—A proposed class action settlement announced last week would provide $51 million in fees to the plaintiffs' attorneys but no monetary relief to hundreds of thousands of north Alabamians included in the class, a result the plaintiffs' attorneys say is justified by 20 years of legal work that prompted 3M and others to begin cleaning up toxic waste and commit to doing so in the future.

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The proposed settlement would result in every resident of Morgan, Lawrence, Limestone, Lauderdale, Colbert and Franklin counties giving up some potential claims, including for damage to the value of their land, against 3M and other alleged industrial polluters.

In return the class members would receive the benefit of 3M and other industries monitoring a toxic class of chemicals — per- and polyfluoroalkyl substances (PFAS) — and limiting their continued discharge into the environment and river. 3M, however, already is obligated to take many of those actions pursuant to a consent order it entered into with the Alabama Department of Environmental Management last year and a separate settlement it has proposed with the city of Decatur and Morgan County.

Leon Ashford, the Birmingham-based lead counsel for the plaintiffs in the class action, acknowledges there is significant overlap between requirements of the ADEM order and 3M's obligations under the proposed settlement. He said that order and substantial remediation efforts taken by 3M over the last decade, however, were motivated in part by the lawsuit that he initially filed in 2002.

"I know the optics," he said of the $51 million in legal fees that would be paid by the defendants, which also cover costs expended by his firm for experts and other litigation expenses. "But I think if we look back from 2002 to today, our lawsuit has gotten the remediation that has occurred without it being part of a settlement agreement because (3M and the other defendants) knew that at some point they had to come to the table."

Ashford said that over the two decades the lawsuit has been pending, his firm has been instrumental in locating dumps that contained 3M waste in Morgan and Lawrence counties. They have notified 3M of these dumps, and 3M has taken remediation efforts. Each of these dumps is expressly identified in the ADEM order, which requires 3M to investigate them and clean up any PFAS found in them.

PFAS, called "forever chemicals" because they last so long in the environment, have been linked with serious health conditions including kidney and testicular cancer, decreased fertility, liver damage, reduced birth weight and damage to the immune system.

Three settlements

Three proposed settlements were announced Tuesday, all involving claims against 3M and others for contaminating the environment with PFAS.

—The class action settlement would resolve a Morgan County Circuit Court case referred to as the St. John case because it began in 2002 as a workers compensation lawsuit against 3M by James St. John. St. John, who died in 2015, is no longer a plaintiff and the lawsuit no longer includes workers compensation or bodily injury claims. Because it is a class action, this settlement — including the $51 million in attorney fees — requires approval by retired Circuit Judge Glenn Thompson, who is presiding over the case by appointment.

—The Riverkeeper settlement resulted from a lawsuit filed in federal court against 3M and others by the nonprofit Tennessee Riverkeeper in 2016. The lawsuit alleges the defendants violated federal law by allowing PFAS to enter the river, groundwater and soil. By its terms, the proposed Riverkeeper settlement will not be finalized unless the St. John settlement is approved. "Early in the mediation we were told we had to settle this case along with the St. John case," said Riverkeeper lawyer Bill Matsikoudis. "Otherwise 3M and the other defendants felt they weren't really buying peace."

—The proposed settlement with the city of Decatur, Decatur Utilities and Morgan County is not dependent on finalization of the other two settlements. The three governmental entities would release most claims against 3M. In return 3M would take ownership of three closed municipal dumps that contain PFAS, including the one that is beneath Aquadome Recreation Center, and would do extensive remediation at the Morgan County Regional Landfill. The obligations taken on by 3M would result in payment of $98.4 million to the governmental entities. No court approval is required for the settlement.

None of the settlements can go forward without the agreement of the Decatur City Council and the Morgan County Commission because they were named as defendants in the St. John and Riverkeeper lawsuits. Votes by both the council and commission are expected at a joint meeting Tuesday at 6 p.m. at Ingalls Harbor Pavilion. Ashford and one of the PFAS experts he retained are among those expected to speak at the meeting.

Huge class

The proposed class of plaintiffs included in the St. John settlement is extremely broad. It includes every person who has resided in Morgan, Lawrence, Limestone, Lauderdale, Franklin and Colbert counties at any time between 2003 and now. It also includes every business owner in the six counties, everyone who has worked in the six counties and anyone who has engaged in recreational activities in the counties, including in that section of the Tennessee River. The current populations of the six counties combined is about 440,000 people, and the size of the class would be much larger than that.

The only members of the class who would receive any monetary relief from the settlement would be a subclass of landowners that had PFAS-contaminated sludge applied to their farms as fertilizer. The sludge consisted of biosolids removed from wastewater at the Decatur Utilities wastewater treatment plant. That wastewater includes leachate from the Morgan County Regional Landfill, which for years was a repository of PFAS-contaminated waste from 3M and other industries.

The wastewater and the biosolids removed from it had, and continue to have, high levels of PFAS, which in turn contaminated about 5,000 acres of farmland over 12 years. The landowners who had sludge applied to their land before the practice was ended in 2009 would share in $5 million if the proposed settlement is approved.

The hundreds of thousands of other class members who would receive no monetary relief from the settlement can challenge the fairness of the settlement when the judge holds a hearing to determine whether to approve it. That hearing will not be scheduled until after the settlement agreement has been signed by all parties. The class members may also be able to "opt out" of the class. This would require taking affirmative action advising that they do not want to be included in the class. Those who do not opt out will be included in the class and, if the settlement is approved, will lose some claims they may have against 3M and the other defendants.

The one type of claim they would still be able to assert if the settlement is approved would be for "manifest bodily injury" caused by PFAS. It is not enough to demonstrate "the presence of PFAS in his or her body," according to the settlement terms. Rather, a class member would have to allege that PFAS exposure caused a specific physical injury, at which point they could file a separate lawsuit against the defendant they believe to be responsible for the PFAS exposure.

Class members, however, would lose any claims that the value of their property has been diminished, that they've suffered emotional distress or experienced other losses as a result of PFAS.

While the class action settlement provides no cash to most class members, it does — in combination with the Riverkeeper settlement that depends on the advocacy group's approval — require 3M and the other defendants to take numerous steps to monitor and remediate PFAS.

Even this settlement benefit, however, comes with a caveat. Many of the remediation steps are already mandated by a separate order.

ADEM order

In July 2020, 3M entered into a consent order with the Alabama Department of Environmental Management that includes numerous requirements for monitoring and remediating PFAS, both from where contaminated soil was dumped on the 3M site and from offsite dumps. These obligations are similar to those contained in the St. John and Riverkeeper settlement agreements.

Ashford's partner, Bruce McKee, said the origins of the ADEM order can be found in the recommendations made by experts his firm retained and that were formulated during years of mediation.

"We can look at specifics in the ADEM agreement and see that they came directly from recommendations made by our experts," he said.

But the combined Riverkeeper and St. John settlements do provide some remediation requirements that are not included in the ADEM order.

Other defendants

For one thing, the Riverkeeper and St. John settlements impose obligations not just on 3M but on other defendants who have used or disposed of PFAS including BFI's Morris Farm Landfill in Hillsboro, Daikin and Toray Fluorofibers. Daikin, for example, agrees in the settlement to clean up Moulton's wastewater treatment plant, which was contaminated by PFAS contained in leachate it received. Ashford said that's an important portion of the settlement that's not included in ADEM's order.

"The sweet little city of Moulton whose wastewater treatment plant was utterly put out of commission by the leachate that was brought to them not knowing that it was contaminated, not knowing about PFAS. That little site is going to be remediated completely so that the lagoon is done away with," Ashford said. "We brought that kind of scope to the agreement."

The settlements also give Riverkeeper experts — paid for with 3M funds — the ability to have input as ADEM monitors 3M compliance.

"We're going to be there every step of the way to make sure the best possible remediation is done, and we're getting paid by 3M to have the expert input to do it," Matsikoudis said. Past 3M remediation efforts "have come up short," he said, and have lacked public input and attention. "This time around there's going to be a white glaring light and the informed input of Riverkeeper and the St. John plaintiffs."

He said an important part of his client's settlement that expands on the ADEM order is that it requires 3M to do a more thorough investigation into the PFAS contamination on the 3M site on State Docks Road and collaborate with Riverkeeper experts on the best solution. Both the Riverkeeper and St. John settlements, like the ADEM order, focus heavily on PFAS disposed of at the 3M site, which they believe is a major source of high concentrations of PFAS in adjoining Bakers Creek and the Tennessee River.

Ashford said 3M disposed of hundreds of tons of contaminated soil in a landfill at the 3M site. While 3M is taking steps under the supervision of the EPA to prevent PFAS from leaching into groundwater or the river, the St. John and Riverkeeper settlements require the company in 2031 "to effect the best change that they can given the options that are available scientifically to them at that point," Ashford said.

The settlements' goals of adapting to fast-changing technology on remediating PFAS are also reflected in requirements that BFI continue to evaluate any technologies for removing PFAS from landfill leachate, even though no feasible methods of doing so currently exist.

Ashford figures 3M has already spent $250 million in PFAS remediation, in part because of his litigation, and has committed to a definite $50 million more in the St. John settlement agreement.

"That's a $51 million fee against what we know is about $300 million right now in hard costs. That's one-sixth," he said, plus 3M has "an unconditional commitment to spend whatever is required in the future."

Ashford stresses that his 2002 lawsuit was filed before PFAS was even on the radar of regulators.

"We stuck it out," he said, and put ongoing pressure on the defendants "to confer a benefit on everybody that lives in north Alabama and everybody that uses the Tennessee River and everybody whose lives are going to be made better by the changes that occur."

David Whiteside, director of Tennessee Riverkeeper, said the focus on money — be it attorney fees or money 3M would pay to the city and county — is unfortunate.

"Tennessee Riverkeeper and I are not out for money and never have been. I can't say the same for the polluters," he said. "Quit stalling and clean up your mess. We are going to be there to make sure you do."

— eric@decaturdaily.com or 256-340-2435. Twitter @DD_Fleischauer.

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