Miracle of Chemistry Conjures Corporate Poison

What was once proclaimed a miracle of modern chemistry has many Tennessee Valley residents not trusting their water supply. They’re looking for payback from the corporate magician.

You can take in the beauty of Wheeler Lake but health advisories warn about consuming its fish.

Jimmy Hill has spent most of his 70 years fishing for bass, crappie and catfish on Wheeler Lake, a sprawling 67, 000-acre impoundment of the Tennessee River in North Alabama.

“Ten years ago, I could go down there and catch all the catfish I wanted. I could catch a boat full, ” he says. “But in the past three years, I haven’t caught any fish.

“You don’t see people fishing much anymore, ” says Hill, who is retired and lives near Wheeler Lake. “And those who do, don’t eat the fish. They put a health advisory out that said you can eat one fish a month.”

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The reason Hill and many like him don’t eat the local catfish — or drink or cook with the local water — is a type of contaminants called PFCs.

Once proclaimed as a consumer miracle of modern chemistry, PFCs yielded, among other things, the waterproofing concoction 3M branded “Scotchguard.”

3M is the target of a flock of lawsuits in Alabama, as well as others going after the company in its home state of Minnesota. A large 3M plant in Decatur discharges into the Tennessee River feeding Wheeler Lake. Another, in Dalton, Georgia, discharges into the Coosa River near the Alabama state line, and feeds into the water supply of Gadsden.

A recently settled lawsuit in which 3M agreed to provide an $850 million grant to the state of Minnesota for a Water Quality and Sustainability Fund may be a precursor to settling similar lawsuits across north Alabama.

The money in the Minnesota suit will help remedy water pollution problems of private well owners and cities, which have already spent millions on new city wells and treatment systems. The money also will be used for habitat and recreation improvements and “enhancing groundwater recharge, ” according to a statement from 3M.

The company phased out production of its miracle chemical in the early 2000s. Perfluorooctanoic acid (PFOA) was used in manufacturing and perfluorooctane sulfonate (PFOS) was used to make carpets, clothing, fabrics for furniture and paper packaging for food that is resistant to water, grease or stains. The compounds, which enter the water supply through discharges or disposal site leaching, don’t break down easily.

3M does not believe there are public health issues related to PFCs, Senior Vice President John Banovetz said in a company release. He said the settlement is consistent with 3M’s commitment to environmental stewardship.

Rhon Jones, of Beasley Allen, represents public water supplies. Photo by Robert Fouts

A couple of years ago, the U.S. Environmental Protection Agency issued a new drinking water health advisory for PFOS and PFOA, establishing a limit of 70 parts per trillion, down from 600 parts per trillion. According to Alabama Health Department advisories, some studies indicate that exposure to PFOA and PFOS over certain levels may result in developmental effects to fetuses during pregnancy or to breast-fed infants.

Suits have been filed against 3M, DuPont and several carpet manufacturers in Northeast Alabama, where cities and towns get their drinking water from the Coosa River, and in Decatur on the Tennessee River. The attorney representing the Centre, Alabama water system and the Gadsden, Alabama water system says he thinks the Minnesota decision may help plaintiffs in Alabama.

“I think it will help, because it is more evidence that in that case, the state is able to successfully bring and resolve claims, ” says Rhon Jones, who manages the environmental section of Beasley Allen PC, a Montgomery law firm.

“The manufacturer in that case, 3M, allowed the PFCs to contaminate ground water and in the environment up there in Minnesota, so I think it will definitely help because it kind of makes our larger point, which is the PFCs need to be filtered out of the Gadsden water system and the Centre water system.”

Jones has filed suits on behalf of the Centre, Alabama water and sewer board against 3M, DuPont and more than 30 carpet makers, and has filed separate but similar suits on behalf of Gadsden’s water system.

A DuPont position statement says, “While federal and state environmental authorities never established regulations on the use, handling, emissions or disposal of PFOA, DuPont set extremely conservative exposure guidelines to guard against harm. DuPont took more precautions in the use and handling of PFOA than any other company.”

“We filed both of our cases separately and we filed them in state court, ” Jones says. “The one in Gadsden was in Etowah County, the one in Centre was in Cherokee County. The defendants sometimes do what is called removal and make an argument that the case ought to be in federal court, the general idea being that federal court is a better place for the defendants.

“Both cases got removed to federal court, and we had said all along that they shouldn’t be removed, that they should be in state court and the federal judge, after hearing both sides, agreed with us and so she sent them back to state court respectively in Cherokee and Etowah.”

Jones says he estimates that there are more than a dozen similar suits in progress, and “if you add suits like those filed by organizations like Riverkeeper, you probably have around 20 or so.”

David Whiteside, executive director of Tennessee Riverkeeper, holds a giant hellbender salamander on a Tennessee River tributary. Photo by Tennessee Aquarium

Tennessee Riverkeeper has filed suit against 3M in Decatur, the city of Decatur and others alleging that PFOA and PFOS were improperly disposed of and that the chemicals have leached into the Tennessee River. The trial date is set for next year.

“This is an environmental lawsuit, ” says David Whiteside, Tennessee Riverkeeper executive director. “Our goal is to clean up the river, to remove the toxic PFC pollution, the PFOA and the PFOS. It is different from the class action lawsuits that have been filed. The class action lawsuit intent is to seek financial damages for injured individuals that have claims that their health has been negatively impacted by the pollution.”

The chemicals would be removed through remediation. “We are in discussions with 3M, which has a plan to remove them, ” Whiteside says, adding that “part of cleaning it up is to stop the leaking and the run off, or there is no point in cleaning up the river. These chemicals don’t dissolve in water, so the first step is to stop them from entering the river in the first place. To get it from the river, we have to clean the land as well.”

“I have been doing this work for nearly 20 years, and this is the most complicated case I have ever seen, and there are a lot of moving parts. It is almost like a shell game — they have moved this around to so many landfills and to so many offsite facilities, it can get very complicated very quickly, ” Whiteside says.

Whiteside says a large part of the problem is that the chemicals in question will not dissolve in water and “biomagnifies up the food chain, to the top of the food chain which is often fish that people are eating and feeding their family with. Those are the ones that have the highest concentration.”

Jones says back in the 2000s he tried a case for a well owner or two in the area of Minnesota where the 3M manufacturing facility was located.

“We were not successful at that point, so a lot of what the state was bringing in that Minnesota case — the genesis of it was our original lawsuit back in the early 2000s. We kind of started the lawyers and the state up there with a road map on how to handle the claim that they had, because when we started it there was a lot less known about it. So sometimes in history you lose a battle early on but the war ends up getting won.”

Jones says the PFC contamination is becoming better known because of the Minnesota case.

“I think you are going to see more of these water systems say, ‘Hey, this is not something that is going to kill somebody tomorrow, but it is something that is going to have to be addressed.’ What 3M did with a couple of the water systems, they were proactive and they provided the filtration systems for a couple of those water systems up there, which is really what we are saying in our cases.”

Both Jones and Whiteside say they are not anti-business.

“We don’t think all corporate citizens are bad people, ” Jones says. “But they have made a lot of money with these products doing what you should do in America, but part of having that good product and making that good money is discharging it in a more responsible way, so that you don’t end up with some of the readings we have now. You are talking about companies that knew decades ago that the way they were discharging this was going to end up right where it ended up.”

Whiteside says Riverkeeper is not seeking to profit from the lawsuit. “We do this work to, first, protect the peoples’ drinking water and, second, to protect the fish and make them safe, because we feel that the people have the right to go catch a fish and take it home and feed it to their family without fear of poisoning them. We are not anti-business.”

“Fishing is a part of the Southern way of life. We have more fish and more rivers, in general, than the rest of the regions and there is a lot of rural lifestyle here where people still go and catch the fish and eat them.”

But not Jimmy Hill.

“I’ve eaten fish all my life up until the last three or four years. But I wouldn’t eat them now. I don’t know anybody that eats them, really.”

And he will continue to buy gallons of water from the local grocery store. “I buy all my drinking water, ” Hill says. “Anything I use to cook with, for coffee, for drinking water, to wash food with, I buy it.”

Bill Gerdes is a freelance writer for Business Alabama. He is based in Hoover.

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