Five chemical makers’ claim that a pollution settlement they paid the city of Rome for contaminating its water with toxic chemicals should be secret flies in the face of settled law, lawyers for The Atlanta Journal-Constitution said in a brief Thursday.
The news organizations’ argument came in response to a lawsuit filed in September by DuPont and four other chemical companies seeking to block Rome from releasing financial terms of the settlement reached between the city and the companies over contamination by so-called “forever chemicals.” DuPont sued Rome, the AJC and the Rome News-Tribune in Floyd County Superior Court, alleging release of the settlement amount “would cause Plaintiffs economic harm and commercial disadvantage.”
DuPont and other makers of per- and polyfluoroalkyl substances, also known as PFAS, face a mountain of liability nationwide. Many have settled cases with publicized damages totaling well into the billions. Exposure to PFAS — found in wells, waterways and water systems nationwide — is known to have widespread and serious health impacts, including an increased risk of some cancers, impaired immune system response and developmental delays in children.
DuPont is involved in one of two huge, federal class-action settlements that are still pending, and local governments must decide soon whether or not they’ll join them.
“DuPont acknowledges its legal efforts to conceal the settlement amount are being undertaken to protect its bargaining position with other ‘actual and future litigants,’” AJC and News-Tribune lawyers Tom Clyde and Lesli Gaither wrote. “However, courts have consistently rejected this justification as ‘an inadequate basis for relief.’”
Local and state government agencies in Georgia typically release settlement agreements upon request in the normal course of business, as required under the Georgia Open Records Act.
A hearing on DuPont’s request for an injunction to prevent Rome from releasing the settlement amount is scheduled for Monday. The newspapers have requested that Judge Bryan Thomas Johnson deny that request.
“Settlement agreements entered into by government agencies are bargains struck on behalf of the public itself, so these agreements are subject to Georgia’s ‘strong public policy in favor of open government,’” Clyde and Gaither wrote, citing the Open Records Act.
Rome has battled chemical companies, flooring makers and the city of Dalton’s public utility over PFAS contamination. Last week, 3M became the latest company to finalize its settlement with Rome, agreeing to pay the city $75 million, according to records obtained from the city by the AJC. 3M did not contest release of its settlement.
To date, more than 30 defendants sued by Rome have settled, and the city will receive at least $233 million from those agreements to address PFAS contamination. The public knows this because previous settlement agreements were produced by Rome in response to document requests from the AJC and other media.
But that isn’t the full amount of the settlements reached so far, as the DuPont litigation has delayed production of records.
Georgia law includes certain exceptions for documents, including some matters that might be deemed trade secrets, but the AJC and News-Tribune’s lawyers argued in part that “unflattering information” is an insufficient reason to “trigger” such protection.
‘Free to inform its citizens’
On Sept. 11, the Rome City Commission approved a settlement with E.I. DuPont de Nemours & Co., the Chemours Co., the Chemours Co. FC LLC, DuPont de Nemours Inc. and Corteva Inc. The companies, which did not admit nor deny wrongdoing, all previously shared common ownership.
During the meeting, Rome’s attorney informed commissioners the companies sued to stop the News-Tribune and AJC from obtaining the settlement records from the city, citing potential damage to the businesses.
In the filing dated Thursday, Clyde and Gaither argued DuPont “has not identified any legal authority for its novel position that this Court can prohibit the citizens of Rome from knowing the most fundamental terms of the deal their government struck with DuPont.”
PFAS have been used for years in firefighting foam, nonstick- and water-repellent materials and thousands of other goods. PFAS are commonly called “forever chemicals” because they do not break down in nature and accumulate in the environment.
The compounds have been found in the blood of more than 90% of Americans exposed through environmental contamination and numerous consumer products.
Rome’s lawsuits against chemical makers, flooring companies and Dalton’s public utility alleged releases of wastewater from Dalton Utilities have contaminated Rome’s drinking water roughly 50 miles downstream.
The city’s case argued that Dalton Utilities has received PFAS-laden wastewater for years from flooring plants in the region — known as the “carpet capital of the world” — and that its treatment processes do not remove the chemicals.
Credit: ArLuther Lee
Credit: ArLuther Lee
Rome’s suit alleges that dangerous amounts of the chemicals run off a Dalton Utilities treatment site and flow downstream into the Oostanaula River, Rome’s main drinking water supply. Dalton Utilities agreed to pay Rome $25 million to settle the claims against it.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
Three of the companies in this case — Chemours, DuPont and Corteva — have already disclosed huge previous settlements, announcing in June they would pay $1.19 billion to resolve some other PFAS litigation. That same month, 3M announced it agreed to pay $10.3 billion to settle lawsuits claiming its PFAS chemicals contaminated hundreds of water systems around the country. Neither of those figures include the Rome settlements.
Each of the settlement agreements reached between Rome and the defendants in their case note that the city, as a municipal organization, is subject to Georgia’s Open Records Act.
But settling a lawsuit with a government entity to avoid a trial is no less public than a trial, attorneys for the AJC and News-Tribune said in the filing.
“The City of Rome should be free to inform its citizens of the details of its settlement agreements with each (of) the entities it accused of knowingly polluting the City’s water supply, including DuPont,” lawyers for the AJC and News-Tribune wrote. “The citizens of Rome deserve nothing less.”
