The Battle for Decatur

PFAS Contamination Divides an Alabama Town

A view of the Tennessee River in Decatur, Alabama. Photo: Johnathon Kelso for The Intercept

It was early afternoon when Paige Bibbee got the text from an anonymous number. Bibbee, the president of the Decatur City Council, was supposed to have a call later that day with Barney Lovelace, an attorney who represents the small Alabama city on several matters. But the screenshot of the email that someone sent to her phone in May made it clear that Lovelace was hoping he wouldn’t have to work with her in the future.

In the email, which Lovelace had sent four months earlier to recipients identified simply as “lawyers,” he explained that he and the president and then-chair of the Decatur-Morgan County Chamber of Commerce were hoping to find candidates to run against Bibbee and another member of the city council named Charles Kirby. Lovelace described a plan to influence the August 25 election from “very deep behind the scenes.” While he sought suggestions for possible challengers to Bibbee and Kirby, Lovelace said that he and the two chamber officials felt that “the effort to recruit good, electable candidates, and to help fund their campaigns and educate them about how to run a campaign, should probably be done by a group independent and separate from the Chamber.”

According to Bibbee, the issue that turned Lovelace against her and Kirby was contamination from a class of industrial compounds known as PFAS. The chemicals, which persist indefinitely in nature and have caused widespread contamination of water and soil in the area, are linked to cancer and other diseases. The law firm where Lovelace has worked for 37 years, Harris, Caddell & Shanks, represents Decatur in litigation over contamination from the toxic compounds. Lovelace needs the council’s signoff on the final decision on the litigation, and both Bibbee and Kirby have expressed concern publicly that he is unwilling to stand up to the polluters. “Charles Kirby is just as outspoken as me on the 3M issue,” Bibbee said. “So Barney knew right off the bat that with us, he had two ‘nos’ without breathing hard.”

The “3M issue” Lovelace is handling stems from two suits that were filed against 3M and other companies that made and used the chemicals in Decatur. Because the city co-owns a landfill where PFAS-laden waste was dumped and operates a local wastewater treatment plant through which the chemicals passed, Decatur is a co-defendant along with the companies, which include 3M, Daikin America, and a 3M subsidiary called Dyneon. But Bibbee thinks the city, where several highly polluted PFAS dump sites have been discovered during the past year, should instead sue the polluters.

“I asked Barney, ‘Why are we still defending them?’” Bibbee said recently. “He couldn’t give me an answer.”

DECATUR, AL - August 19, 2020: Councilman Charles Kirby canvasess a neighborhood in town. CREDIT: Johnathon Kelso for The Intercept.

Council member Charles Kirby canvasses a neighborhood in Decatur, Alabama, on August 19, 2020.

Photo: Johnathon Kelso for The Intercept

Lovelace told The Intercept that the city is pursuing claims against 3M in a mediation that is confidential “by law.” He added that an agreement reached in that mediation requires 3M to pay the legal fees for the city. Since 2016, the company has paid almost $200,000 to Harris, Caddell & Shanks to represent Decatur and the Morgan County Commission. In an arrangement that strikes Bibbee as concerning, when Lovelace has work lunches with 3M attorneys about the PFAS litigation — as he regularly does — his $250 hourly rate is paid by the company, even though the work he’s doing is technically for the city. Lovelace also represents the Decatur Industrial Development Board in considering tax abatements for industry, which Bibbee and Kirby say puts him in close and friendly contact with companies including 3M.

When I visited Lovelace in his office in downtown Decatur last year, he had kind words for the company. “3M has been a significant corporate citizen in this area,” Lovelace told me, calling my attention to the millions of dollars it has given to local organizations and schools over the years. 3M, which is worth more than $95 billion, has donated to at least 17 local organizations and funds scholarships at four local colleges. And that largesse has helped the company garner goodwill from Decatur’s citizens. The company is also closely involved with the chamber of commerce, whose recently elected board chair is the manager of 3M’s local plant.

But as news of the PFAS contamination has emerged in the local press, that relationship has begun to fray. “People down here have always believed a certain strata that told us that everything industry did was good for us,” said Kirby. In recent months, though, residents have become increasingly “alerted and alarmed” about the PFAS problem, he said. Although both he and Bibbee are now in hotly contested races for their council seats, Kirby feels that being targeted by Lovelace, whom he described as “someone who has made his living in smoke-filled backrooms,” has actually boosted his political prospects.

With the exception of Kirby, who described himself as an independent, all of the Decatur council members and people now running for their seats are Republicans. Yet questions about how and whether to challenge the power structure that has long governed decisions of consequence in Decatur has also divided the city along environmental lines. After Lovelace’s email came out in the local press, Bibbee has received both enthusiastic praise and, online, where some have begun to refer to her as “Hillary,” some hate. Kirby told me that the response he’s received has been overwhelmingly positive. “People who have never called me before have called me and said, Get me a sign to put in my yard, and I’ve got a check for you,” he said.

Lovelace defended the email in a statement to a local TV station. “Like any citizen of the city of Decatur, I and the members of our law firm have an interest in seeing good, qualified candidates run for the City Council and the Board of Education,” he said. “I absolutely do not believe this email shows that I have a conflict of interest in representing the city in the future.”

The battle that has erupted over PFAS chemicals in this small Southern town on the Tennessee River is just one of a series of conflicts playing out throughout the United States. Because the federal government has so far failed to set binding regulation of PFAS that would hold polluters to account, the problem is largely being handled locally. And, in countless communities where the chemicals have been discovered, residents are now grappling with — and sometimes fighting over — how to force powerful companies to clean them up.

Secret History

Decatur plays a special role in the national PFAS crisis. Since the 1960s, it has been a production hub for 3M, the multinational company that first developed and made the chemicals. For decades, the company disposed of these compounds in local water and landfills, leaving this industry-friendly town in a state with notoriously lax environmental protections with what may be one of the most challenging PFAS pollution crises in the country.

Now thousands of acres of land are affected, according to Gary Davis, a local attorney who has represented plaintiffs in several PFAS cases. “Looks like they just dumped this crap everywhere in the two-county area,” Davis said. The most galling part is that while residents have just recently learned of the chemicals, 3M has known about the hazards they pose and their presence in local soil and water for decades.

While residents have just recently learned of the chemicals, 3M has known about the hazards they pose and their presence in local soil and water for decades.

3M developed PFOS and PFOA, the best-known chemicals in their class, more than 70 years ago. In addition to using and selling them as waterproof and stain resistant coatings for paper, textile, and carpets, including 3M’s Scotchgard, the company used PFOS to make firefighting foam it developed in partnership with the U.S. Navy. And it sold the closely related compound PFOA to DuPont, which famously used it to produce Teflon.

But by 1976, just 15 years after 3M opened its plant along the banks of the Tennessee River in Decatur, the company knew that the chemicals it was producing there had wound up in the blood of its workers. In 1978, its own internal studies confirmed the toxicity of the chemicals in lab animals. Tellingly, in 3M workers, the levels of organic fluorine traced to these chemicals were “proportional to the length of time that had been spent by employees in the production areas,” as one internal document explained. The company also knew that some of its employees had “slightly elevated liver enzyme levels,” according to a 1979 document marked “confidential,” which refers to earlier internal research in which monkeys given PFOS had died and rats exposed to it had liver effects “at all dose levels.”

That same year, testing done by 3M showed that one of the company’s PFAS compounds was in fish in the Tennessee River 26 miles downstream from the Decatur plant. Soon it also became clear how the chemicals might have gotten there. Testing done by the company in 1980 found that its wastewater contained the chemicals now known as PFAS. Although people caught and ate fish from the river, 3M didn’t make a public announcement about the presence of these chemicals in the fish or their toxicity.

DECATUR, AL - August 19, 2020: A portion of the 3M plant in Decatur. CREDIT: Johnathon Kelso for The Intercept.

1DECATUR, AL - August 20, 2020: A dead catfish near the bank of the Tennessee River near the 3M Plant in Decatur. CREDIT: Johnathon Kelso for The Intercept.

Top: A portion of the 3M plant in Decatur, Alabama. Bottom: A dead catfish on the banks of the Tennessee River near the 3M plant.

Photo: Johnathon Kelso for The Intercept

And, according to a memo from a 3M employee named Jerry, the company didn’t stop emitting at least some of its chemicals in its wastewater. Jerry’s team came up with a plan “to capture and incinerate the wastewater process streams containing residuals,” as he explained in 1998, stating that the plan should be implemented “as soon as possible.” But Jerry’s urgent request came 18 years after the company first confirmed the contamination of its wastewater.

The company also knew that its chemicals were not just present in human blood, but present at levels that presented danger. In the late 1990s, 3M came up with an estimate for the level of PFOS that it concluded would be “safe”: 1.05 parts per billion. Unfortunately, around the same time, it learned that the average amount of the chemical in the blood of the general population in the U.S. was already way higher: 29.7 ppb.

While the compounds were being released directly into water, they were also making their way into the environment through another route. The factory filtered its wastewater through a city-owned treatment plant, Decatur Utilities. The treated water had a far lower concentration of PFAS, but it also created a byproduct: sludge, a dense muck that had extremely high amounts of the chemicals. To dispose of it, the company decided to spread the chemical-laden goo on local fields as fertilizer. The practice, which was approved by Alabama’s Department of Environmental Management, went on for “approximately 20 years,” as 3M acknowledged in 2008, and ultimately affected some 5,000 acres of agricultural land. Because they don’t degrade, the PFAS chemicals were making their way from the soil into whatever was grown in it. By 2001, a 3M analysis of food revealed that an apple from Decatur had 2,350 parts per trillion of PFOA.

While the Environmental Protection Agency also knew about the sludge and its consequences — 3M said it told the agency about the contaminated food within seven days of publishing its 2001 analysis — neither the agency nor the company informed the public about the practice or what it meant for the food supply. The smearing of chemical waste on growing fields around Decatur continued until at least 2008. According to a letter 3M sent to the EPA the next year, the company told the city about the problem in 2007, “calling their attention to the presence of perfluorinated chemicals in the Decatur Utilities sludge.” But the city made no announcement of the problem, nor was there any local press about it. And while the practice of spreading sludge on fields stopped, neither the agency nor the company did much to call attention to or clean up the thousands of contaminated acres.

“3M takes pride in being part of the Decatur community for nearly 60 years, and the company values its role as a good neighbor and steward of the environment,” 3M stated in response to questions for this story. “During the last 12 months, we have identified areas where we can do more and better, and we’re committed to doing our part in our operations moving forward.”

In an email, 3M communications manager Fanna Haile-Selassie also wrote that “the selected documents you are choosing to use do not provide needed context or are limited to a scope of knowledge that is more than two decades old.”

Down by the River

In 2015, after Tennessee Riverkeeper, a local organization that protects the river from environmental threats, filed its lawsuit against 3M, the city of Decatur, and others over contamination in water and fish, bits of information about the chemicals began to trickle out. But for Bibbee, the wakeup call came just last year, when she was taking a tour of the Morgan County landfill — and saw for herself the huge mounds of soil from which sludge was still leaking.

“You can see the stuff — it looks like grease or oil — just coming out of the sides,” she said. Bibbee was incensed that no one had cleaned up the chemical-laden dirt even after it was brought to light by the Riverkeeper’s lawsuit. “What got me going is, you’ve known since 2015 and you haven’t as much as put a Hefty bag on it?”

After her tour of the landfill, the former youth pastor and stay-at-home mother began doing research on PFAS chemicals and sharing her findings with her fellow council members. At a December meeting with Lovelace about the contamination, she and other council members balked when he asked them to sign a confidentiality agreement that would have barred the local officials from speaking publicly about the PFAS litigation.

“That’s when it got really weird,” said Bibbee, who, along with her fellow council members, decided after the meeting to hire an independent environmental scientist to brief them. Even though Lovelace told her multiple times that he had been relying on the best scientists in the world, Bibbee told me, “We needed our own expert to confirm that their experts were as smart as they said they were.”

In June, the council voted to require that its members approve legal settlements worth more than $25,000. Previously, the mayor was allowed to make decisions about settlements of any size without their approval. According to Bibbee, the change only further soured her relationship with Lovelace. “That brought Barney to a different level of mad,” she said.

DECATUR, AL - August 19, 2020: Councilwoman Paige Bibbee at her office downtown. CREDIT: Johnathon Kelso for The Intercept.

Council president Paige Bibbee in Decatur, Alabama, on August 19, 2020.

Photo: Johnathon Kelso for The Intercept

After the email surfaced, things got even uglier. Bibbee threatened to share it with the local media, which sparked an angry tirade in which Lovelace told her, “I will burn you down,” and accused her of having a romantic relationship with a woman who used to run the local riverkeeper organization. Bibbee taped the conversation and played part of the recording for a reporter, who wrote it up for the Decatur Daily. Lovelace also told her that he had photos showing where her car was parked overnight, which Bibbee said made her worry about her safety. “I always carry a gun around,” she said. “After that, I got a more powerful one.”

“What got me going is, you’ve known since 2015 and you haven’t as much as put a Hefty bag on it?”

It’s not just Bibbee and Kirby whose lives have been upended by the contamination. Brenda Hampton, a local activist who has been calling attention to the problem of PFAS in communities downstream from Decatur for the past few years, told me that she, too, has met with repercussions for speaking out. Hampton’s interest in PFAS partly stems from the health problems she believes the chemicals have caused her family. Hampton’s mother had kidney disease, and even though Hampton donated her own left kidney to her in 1997, died of it four years later. Hampton’s grandmother and grandfather also died of kidney problems. Her niece Shalonda has serious kidney issues, as do Shalonda’s 15-year-old twins. Two of Hampton’s siblings are on dialysis. And, with just one kidney remaining, Hampton is now in acute renal failure.

Hampton and her relatives have lived their whole lives in Courtland, Alabama, which gets its water from the West Morgan-East Lawrence Water Authority. While 3M knew its chemicals were in the river in 1979, the water authority, which is 13 miles downstream from the 3M plant, first measured them in its waters in 2009 — 30 years later. In 2013, the Agency for Toxic Substances and Disease Registry analyzed the blood of 153 people who lived or worked in the water district and found elevated levels of three of the chemicals.

Three years after that, in 2016, when Hampton realized that the water she and her family had been drinking for years was contaminated with chemicals that have been associated with kidney disease, kidney cancer, and overall poor kidney health, she became alarmed and  shared the news as widely as she could. But it was soon clear that the subject was too sensitive to discuss with some of her friends and relatives who felt allied with the local chemical industry, including her daughter, who works for 3M. “We just steer clear of the subject,” she told me.

And Hampton said she has faced worse responses to her activism than stilted silences. In 2018, after she gave a talk at a local rec center about the PFAS pollution, Hampton returned to the parking lot to find that someone had vandalized her pickup and left a mutilated Chucky doll on its dashboard. On another occasion, she discovered a banana wedged in the truck’s tailpipe. Since then, Hampton, like Bibbee, has made sure to bring her gun with her when she goes out.

The Costs of Contamination

In other parts of the country, litigation over PFAS contamination has already cost 3M dearly. In 2018, the company settled a lawsuit brought by the Minnesota attorney general over contamination in that state for $850 million. New Jersey sued the company last year, demanding that it pay the costs of investigating and cleaning up contaminated sites and compensate the state for damages. And New York filed suit against 3M over PFAS contamination from firefighting foam several months later. Both cases are still pending. In February, 3M agreed to pay $55 million over contamination in Michigan. Meanwhile, more than 100 cases over firefighting foam, which has contaminated water around the country, have been combined into one giant suit in which 3M and other companies will likely face many billions of dollars in claims. Already, 3M is spending hundreds of millions on legal fees.

The company has also been battling substantial threats on the legislative front. 3M spent more than $6.2 million on lobbying last year — up from $4 million in 2018. Among the issues its lobbyists worked on in just the last quarter of 2019 were the PFAS Detection Act; the Safe Drinking Water Assistance Act; the PFAS Accountability Act; the PFAS Release Disclosure Act; the PFAS Action Act; the Protect Drinking Water from PFAS Act; the Providing Financial Assistance for Safe Drinking Water Act; the PFAS Waste Incineration Ban Act; the PFAS Testing Act; and PFAS Firefighting Foam Guidance. This year, the company has hired several new high-profile lobbyists, including a firm headed by the former policy director of Senate Majority Leader Mitch McConnell.

Although Decatur has faced some of the most severe environmental contamination from the chemicals, the legal battles over PFAS in this town of 50,000 have so far been mild compared to these higher-profile and costlier conflicts. 3M and several other plants that emit PFAS in Decatur settled a suit filed by the West Morgan-East Lawrence water district for just $35 million in 2019, essentially the cost of installing a new filtration system. And when it was discovered that a local middle school was sitting on top of one of the company’s toxic dump sites, 3M settled the matter by buying the property for a mere $1.25 million.

“If this lawsuit doesn’t force the polluters to judiciously and thoroughly clean up these forever chemicals, this problem will persist in North Alabama for generations.”

While several lawsuits are still pending — and the combined litigation with the city is now in mediation — it is unlikely they’ll have anywhere near as dramatic an impact as a class-action suit over PFAS in West Virginia. There, after PFAS seeped out of a DuPont plant in Parkersburg — and locals discovered that the company had been withholding critical information from them for years — DuPont wound up paying out more than $1 billion. The payout included the settlement of thousands of personal injury claims from people who drank the PFAS-contaminated water and developed cancers and other diseases that have been linked to the chemicals.

Even though the people downstream of the Decatur plant also drank the chemicals for years, Alabama state law doesn’t allow for medical monitoring, which makes it difficult to connect diseases to exposure to the chemicals. Some of the personal injury claims related to the plant have been dismissed. So far, most of the suits filed over PFAS just charge nuisance, trespass, and endangerment, and little money has been collected to rid the area of the contamination. Most of those more modest suits have yet to bring relief to plaintiffs.

1DECATUR, AL - August 20, 2020: A view of the Tennessee River. CREDIT: Johnathon Kelso for The Intercept.

A view of the Tennessee River on August 20, 2020.

Photo: Johnathon Kelso for The Intercept

The suit Tennessee Riverkeeper filed in federal district court seems to exude an impatience with the lack of progress. The 2017 complaint “implores this court to help it do what the defendants, the state of Alabama and the United States Environmental Protection Agency should have done over the past several decades — compel the cleanup of the contamination.”

Yet, five years after the suit was first filed, the litigation remains unresolved. After being merged with a lawsuit filed in 2002 against 3M, other PFAS-manufacturers, and the city of Decatur, the litigation is now entering its 29th month of mediation. “They’ve been using delay tactics this entire time,” David Whiteside, executive director of Tennessee Riverkeeper, said of his opponents. “If this lawsuit doesn’t force the polluters to judiciously and thoroughly clean up these forever chemicals, this problem will persist in North Alabama for generations.”

Dead Zone

While Whiteside waits, the river is already forever altered. Decatur once had the greatest diversity of freshwater mussels of any place in the world. More than 150 species of mussels clung to the riverbed in layers, giving Decatur a profitable industry and Muscle Shoals, a town about an hour downriver, its name. During the peak of his career as a “musselman” in the 1980s and 1990s, Ron Mixon could make $500 a day diving into the river and collecting them with his bare hands.

“Now, the river is a dead zone,” said Mixon, who is 72. Most of the 12 men he worked closely with died before age 65, several of cancer. “Only two of us are left,” he said.

Decatur once had the greatest diversity of freshwater mussels of any place in the world.

Most of Decatur’s mussels are gone, too. On a trip last August to a broad stretch of the Tennessee known as Wheeler Lake with a mussel expert named Jim Stoeckel, it took repeated digging and sampling to find any of the creatures. The river is still beautiful, with birds flying overhead and reedy plants lining the shore. But Stoeckel, who is an assistant professor at Auburn University’s School of Fisheries, Aquaculture and Aquatic Sciences, found few very mussel specimens, and those he caught were tiny, dead, or both.

What he found in ample supply in the river, though, were PFAS. The compounds were not the only contaminants in the river. With 166 facilities in Decatur permitted to release water pollution, the Tennessee contains multiple contaminants, including heavy metals, that can affect the wildlife and could have contributed to the illnesses of Mixon’s fellow musselmen. But during our trip and in research published in 2017, Stoeckel and his colleagues found PFAS at remarkably high levels. In samples taken last August, Stoeckel measured the concentration of PFOA at 184 ppt, more than twice the safety limit for drinking water set by the EPA, and PFOS at 217 ppt, more than three times the EPA safety limit.


DECATUR, AL - August 20, 2020: A drainage ditch filled with trash  at the former Mud Tavern Landfill in DecaturCREDIT: Johnathon Kelso for The Intercept.

Top: A tire floating in the Tennessee River. Bottom: A drainage ditch filled with trash at the former Mud Tavern Landfill in Decatur.

Photo: Johnathon Kelso for The Intercept

The scientists found other PFAS compounds too. 3M stopped making PFOA and PFOS in 2002, after the EPA began to understand that both chemicals didn’t break down and were toxic to animals and accumulating in people. And in 2006, eight companies that used and made the compounds, which are based on chains of eight carbons bonded to fluorine atoms, began to phase them out through an agreement with the EPA. 3M has repeatedly cited its decision to phase out these eight-carbon molecules before its competitors as an example of its ethical business practices.

But after it stopped using eight-carbon PFAS, 3M replaced them with chemicals based on shorter carbon chains. These chemicals also persist in nature indefinitely and accumulate in people’s bodies. And, as Stoeckel’s measurements showed, these shorter-chain molecules are now in the Tennessee River too. The scientists found six PFAS compounds based on shorter chains of carbon in the river. One of them was ADONA, a six-carbon compound that has been reported to be 3M’s replacement for PFOA. While ADONA has been detected near an industrial plant in Europe, it has never before been measured in an American river. When asked about the compound, Haile-Selassie, the 3M spokesperson, wrote in an email that “we do not import, manufacture, or use ADONA in the United States.”

Haile-Selassie did not respond when asked whether the company imported, manufactured, or used ADONA in the U.S. in the past.

Among the other compounds detected in the water were PFBS and PFBA, which are based on four-carbon chains. Although these short-chain PFAS exit the human body more quickly than the longer chain compounds, both are toxic. According to the Minnesota Department of Health — which, unlike Alabama, has already set safety levels for these two shorter-chain chemicals — the effects of PFBS include decreased offspring body weight, delayed eye opening, delayed vaginal opening and first estrus, reproductive hormone changes, decreased ovarian follicle number and uterine weight in young adult female offspring exposed in utero, and hormonal changes in both pregnant animals and offspring. Meanwhile, PFBA causes changes in the liver and thyroid, as well as decreased red blood cells, decreased cholesterol, and delayed eye opening in animal experiments, according to the Minnesota agency.

And it’s clear that these aren’t the only PFAS compounds in the river. Last year, 3M admitted that, since 2009, it had been releasing two of its short-chain molecules, FBSA and FBSEE, into the river despite a consent order with the EPA in which the company specifically agreed not to do so. As Chelsea Brentzel, a reporter for a local TV station, discovered, the state had been aware of the releases since 2014 but did nothing about them.

Records show that 3M is using or making other short-chain PFAS compounds at the Decatur plant, including at least two in “very large quantities,” according to the most recent records from the EPA, which defines “very large quantities” as in excess of 25,000 pounds per year. Along with at least 39 other PFAS compounds, the EPA allowed one of these short-chain compounds onto the market despite the fact that it was the subject of two 2003 reports from the company indicating that it might pose a substantial risk to health or the environment. One of those reports revealed that the chemical caused developmental effects in some lab rats. Another documented an experiment in which the compound affected rats’ production of red blood cells, cholesterol levels, and the weights of their livers and kidneys.

The EPA restricted the production and use of another PFAS compound now made in Decatur in large quantities, which is identified by the number 332350-90-0, because “EPA has concern for liver toxicity, irritation to mucous membranes, lungs and eyes,” as well as “potential concern for developmental and reproductive effects,” according to a 2003 consent order between 3M and the agency.

In the most recent publicly available EPA records, the company reported the amount of 332350-90-0 it produced as simply less than 1 million pounds. 3M withheld all other information — including the number of locations where it uses the compound, whether it is recycling it, and how many workers might be exposed to it — on the grounds that it is confidential business information.

Industry Influence

3M will soon have to find out how much of these chemicals has gotten into local water, according to a consent order that 3M entered into with the Alabama Department of Environmental Management in late July, written in consultation with the EPA. The document included a list of 50 “on-site PFAS” compounds, including ADONA and the two compounds made in very large quantities, which “reflects compounds for which we have agreed to test on-site based on current or historical production,” according to Haile-Selassie. And the order goes further, requiring the company to investigate and report the release of “any PFAS” at the plant by April 2022.

“The company, with oversight from ADEM, will implement changes that will meet or exceed operational best practices for PFAS management,” 3M said in a statement to The Intercept. “We are committed to the full and timely implementation of the consent order obligations and remain committed to continuing to work with ADEM, the U.S. Environmental Protection Agency and the local community.”

According to a 3M press release, the new agreement “resolves matters related to previously disclosed per- and polyfluoroalkyl substances (PFAS) discharges at 3M’s Decatur, Ala. facility, and furthers the company’s comprehensive program investigating and performing appropriate remediation of soil and groundwater in the area.” Local news coverage has been similarly positive, hailing the agreement as “unprecedented.”

But veteran PFAS experts worry about what will happen after the chemicals in Alabama are identified and measured, in part because the agreement gives 3M considerable power to influence the safety levels the state ultimately sets. Rob Bilott, who represented plaintiffs in the class-action suit over PFAS in West Virginia — and recently wrote a book documenting the yearslong cat-and-mouse game he played with DuPont and regulators — was particularly skeptical of the agreement.

“This is like two criminals shaking hands after robbing a bank.”

In one of the most tawdry chapters of the struggle in West Virginia, DuPont helped influence state regulators who wound up setting a cleanup level for PFOA that was 150 times higher than a safety threshold the company had set internally.

“Unfortunately, it appears history is repeating itself in the world of PFAS,” Bilott said of 3M’s consent order in Alabama.

As in West Virginia, where DuPont held considerable sway over the state’s regulation of chemicals, Alabama’s environmental regulators are known for being particularly amenable to industry. Several powerful leaders from the state made their names working for polluters, including Luther Strange, who was a gas and oil lobbyist before becoming the U.S. senator from Alabama, and Trey Glenn, who worked for an energy company before becoming head of the Alabama Department of Environmental Management in 2005. Glenn is no longer at ADEM; he was appointed by President Donald Trump to head the regional EPA office in 2017 and indicted on ethics charges over a bribery scandal in North Birmingham a year later. But the state’s waterkeepers feel that his successor, Lance LeFleur, is also ineffectual and that “ADEM’s failures are systemic and political.”

All of which may not bode well for giving the state and 3M control over PFAS.


A view of the 3M plant in Decatur.

Photo: Johnathon Kelso for The Intercept

“Here we have a deal being announced by a PFAS manufacturer and a state where it appears that the manufacturer is being given the ability to control the design and direction of new scientific studies and the development of potentially new safety standards for PFAS, without necessarily including any input from the public or direction by independent scientists,” Bilott said. He also worried that whatever number the company helps Alabama set “may then be held out to the public (or in courts across the country) as ‘government-approved’ PFAS research or state standards.”

The Environmental Working Group, a nonprofit that has been calling attention to PFAS chemicals for almost 20 years and recently began investigating pollution at the Decatur site, had an even harsher take on the July agreement. “They’re not requiring 3M to remediate all the contaminated land. They’re not setting up a system for handling PFAS-laden sludge. They’re not setting a drinking water standard that requires utilities to provide consumers with clean water,” said Scott Faber, who is senior vice president for government affairs at the organization.

ADEM defended its agreement. In an emailed statement, M. Lynn Battle, head of the state agency’s office of external affairs, wrote, “The interim consent order with 3M covers not just its plant but also any PFAS-contaminated sites already identified in the region as well as any sites identified later. 3M is responsible for conducting assessments of the sites for PFAS presence and for remediation of the sites.” Battle also noted that “ADEM has required all water systems in the state to test for PFAS in their drinking water, and none of the data reported from the water systems found PFAS levels above the EPA’s health advisory for lifetime exposure of 70 parts per trillion.”

But Faber said ADEM’s failure to stop the pollution in the past cast doubt on the current agreement. “The polluter and the regulator who failed to regulate the polluter are going to get in the room and pick the numbers,” said Faber. “This is like two criminals shaking hands after robbing a bank.”

Trust Out the Window

Some of the locals are dubious too. “Trust is out of the window for us,” Brenda Hampton told me after the consent order was announced. “We’ve been lied to for too long and lost too many people to various illnesses in this community. It’s very hard to trust anything coming out of the CEOs’ mouths.”

As one of the few local entities to settle litigation with PFAS producers, the West Morgan-East Lawrence Water District, which provides water to Hampton’s hometown of Courtland, has actually already installed a filter to take PFAS out of its water. But in a bitter turn, although the water is finally safe to drink, many in her community no longer trust what comes out of their tap.

Hampton is now recovering from a serious case of Covid-19, an ordeal that her doctor said was worsened by her reduced kidney function. But before she fell ill, she spent much of her time — and her own money — distributing bottled water to the elderly and infirm from a local church.

Ernest Nance, one of the Courtland residents Hampton regularly supplies with bottled water, told me that he may never drink from his own faucet again. “They say they fixed it, but I don’t think they fixed it,” said Nance, who has puzzled over how the chemical company executives allowed the contamination to happen. “They had to know,” he said. “When you’re dumping chemicals in the water, you got to know that they go somewhere.”

COURTLAND, AL - August 19, 2020: Brenda Hampton stands outside a corn field near her house in Courtlandl CREDIT: Johnathon Kelso for The Intercept.

Brenda Hampton stands outside a corn field near her house in Courtland, Alabama, on August 19, 2020.

Photo: Johnathon Kelso for The Intercept

Meanwhile, upriver in Decatur and the surrounding area, where PFAS contamination still flows through streams and creeks and is laced through soil, mistrust is also an issue. Several previously unknown hot spots have been discovered in recent years, one as recently as February. Whiteside, the Riverkeeper executive director, suspects there are more. “I’m afraid we’re going to keep finding alternative PFAS chemicals and new dump sites,” he said, the anxiety audible in his voice.

Whiteside also worries that spending by the companies that polluted Decatur with PFAS might sway voters in the upcoming election. In early August, just weeks before the vote that could determine if and to what extent the pollution gets cleaned up, the city’s mayor, Tab Bowling, announced a plan to upgrade a local amphitheater with permanent sound and lighting systems. Much of the cost would be covered by a $160,000 donation from Daikin America, one of the defendants in the PFAS litigation, which originally built the amphitheater. Part of the work on the upgrades would be done at cost by Willie LaFavor, the former chamber of commerce chair whom Barney Lovelace said in his email helped devise his election plan.

“We’ve been lied to for too long and lost too many people to various illnesses in this community.”

To Whiteside, the timing seemed fishy. “These chemical companies donate what seems to be large amounts of money towards projects like the amphitheater, which makes them look like great citizens,” he said. “But the cleanup costs are far more than these charitable donations. Their money would be better spent getting rid of the chemicals.”

Neither Daikin America nor LaFavor responded to requests for comment for this article.

Eight months after they decided to bring in an independent environmental expert, the Decatur City Council has yet to do so. Bibbee is frustrated by the delay, only some of which can be attributed to the pandemic. In any case, the city officials have been busy trying to keep their council seats. Kirby has one opponent. Bibbee, who has been taking heat for supporting an ordinance requiring face masks, has three.

Although the chamber of commerce has opted not to officially involve itself in the race, Bibbee suspects that at least one of the candidates running for her seat was “recruited to run” because of the PFAS issue. That candidate, Carlton McMasters, is reportedly a friend of Lovelace. (McMasters did not respond to an inquiry for this article.) But the connection isn’t necessarily surprising, since both are longtime residents of this relatively small town. Nor does it mean that, if he is elected, McMasters will support the lawyer in his decisions about how to handle the city’s PFAS litigation. Kirby’s challenger, an 18-year-old named Hunter Pepper, told me that no one had asked or paid him to run, but he failed to file required campaign finance paperwork with the city. He also said that he was running for the city council in part because God told him to.

For her part, Bibbee told me something similar — that God put her into local politics for a reason. It’s not clear what Election Day will bring. But even if she loses, Bibbee feels she can still hold her head high. “We’ve brought this issue to the surface,” she said of the contamination. “It had been hidden for far too long.”

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