Judge orders Rome ‘forever chemicals’ settlement be made public

DuPont and four other chemical makers sought to block city from releasing records to the AJC and Rome newspaper
An aerial photograph shows a water pump station on the Oostanaula River near Rome on Tuesday, Aug. 23, 2022. (Hyosub Shin/Atlanta Journal-Constitution/TNS)

Credit: TNS

Credit: TNS

An aerial photograph shows a water pump station on the Oostanaula River near Rome on Tuesday, Aug. 23, 2022. (Hyosub Shin/Atlanta Journal-Constitution/TNS)

A North Georgia judge ruled Friday that the financial terms of a legal settlement between the city of Rome and several chemical companies are not a trade secret and ordered the release of records showing damages paid to the city for toxic contamination of its drinking water.

Floyd County Superior Court Judge Bryan Thomas Johnson rejected arguments from DuPont and four other makers of PFAS — so-called “forever chemicals” — that sued the city of Rome, The Atlanta Journal-Constitution and the Rome News-Tribune alleging disclosure would harm the companies. The chemical companies argued the information was trade secret and therefore exempt from disclosure to the public under the Georgia Open Records Act.

The AJC and Rome newspaper sought the financial terms after DuPont and the four companies settled litigation in September related to the release of chemicals known as per- and polyfluoroalkyl substances, or PFAS, that have contaminated Rome’s drinking water.

The compounds, found in firefighting foam, nonstick and water repellent materials and other goods, have been linked to cancer and other detrimental health and environmental impacts. The companies neither admitted nor denied wrongdoing.

Rome, which has battled dozens of chemical companies, flooring makers and the city of Dalton’s utility related to the contamination, plans to build a $100 million water treatment plant to ensure safe drinking water.

Johnson said in his Friday order that DuPont and its allies failed to establish that the settlement amount is a trade secret or that its release would disadvantage the defendants.

“Because plaintiffs have not pleaded or provided evidence of any specific facts which justify classifying the settlement amount as a trade secret and because plaintiffs have offered mere speculation as to the effects of release, this court declines to declare the settlement agreement worthy of trade secret protection,” Johnson said.

Johnson ordered Rome to release records sought by the AJC and the News-Tribune no earlier than 3:30 p.m. Tuesday and no later than noon Wednesday. On Friday afternoon, lawyers for the chemical companies filed notice they will appeal the ruling.

A message left with an attorney for the chemical companies was not immediately returned.

Still, Friday’s ruling is a victory for public transparency under the state’s open records law. The Georgia Open Records Act requires local and state government agencies to release most public documents upon request, and governments typically release settlement agreements as a normal course of business. The law includes certain exceptions for documents, including some matters that might be deemed trade secrets.

The Georgia First Amendment Foundation sharply criticized the DuPont effort as “outrageous” and an affront to the public’s right to know. Lawyers for the AJC and News-Tribune said in court last month that DuPont cannot produce a court decision from anywhere that supports its argument.

In an October hearing, an attorney for DuPont said the companies paid Rome a “disproportionately high” settlement compared to their level of responsibility as determined by scientific experts, and making public such information would harm the companies in pending class-action lawsuits.

The PFAS litigation in Rome has drawn intense media coverage. In September, after Rome leaders 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 sued the city and the newspapers to prevent disclosure of the settlement amount.

More than 30 defendants have entered into a settlement agreement with Rome, including the five companies involved in the lawsuit over open records. These five companies all previously shared common ownership.

Rome will receive at least $233 million to address the PFAS contamination, based on the settlement terms released to the AJC so far. That includes $75 million from materials manufacturing giant 3M and $25 million from Dalton Utilities.

The settlement will also cover the cost of the new $100 million water treatment plant in Rome to ensure the safety of its water system. City officials initially implemented water rate hikes to pay for the facility, but those were rolled back in June when the settlement was accepted.

Makers of PFAS chemicals face a mountain of lawsuits and billions of dollars in potential damages nationwide. The companies themselves have a history of announcing their own settlement terms.

In June, three of the companies in this case — Chemours, DuPont and Corteva — announced 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 included the Rome settlements.