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Lawsuit filed by Colorado Springs-area water customers in connection with contaminated wells

September 20, 2016 Updated: September 21, 2016 at 9:20 am
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COLORADO SPRINGS, CO - JUNE 8: A water tower overlooks the community of Security in the foreground of Pike's Peak on June 8, 2016. A invisible toxic chemical has been discovered in the drinking water that affects 70,000 people in the communities south of Colorado Springs. (Photo by Michael Reaves/The Denver Post)

Three Security Water District customers have filed a federal class-action lawsuit against companies that manufactured a military firefighting foam that's thought tied to contaminated wells in Widefield, Security and Fountain.

The foam was used for decades at Peterson Air Force Base and contains a chemical found in public and private wells at levels that exceed Environmental Protection Agency standards issued in May. The contamination was revealed after testing this year, and thousands of residents in the area have been drinking bottled water to avoid the perfluorinated compounds detected in wells.

The suit, which names Minnesota-based chemical company 3M, Ansul Foam of Wisconsin and National Foam of Pennsylvania as defendants, claims the contamination poses health risks and cuts property values. The suit seeks an unspecified amount of money to establish a medical monitoring program and punitive damages "in an amount sufficient to deter defendants' similar wrongful conduct in the future."

In a statement, a 3M representative said the company would "vigorously" defend its production and sale of the foam, which is also known as Aqueous Film-Forming Foam, or AFFF.

The company also pointed to its record in defending itself against similar cases in the past.

The foam "is a product that was used by the U.S. military and departments of defense around the world because it saves lives - which likely explains why this product remains in use approximately a decade after 3M exited the sale of it," said William A. Brewer III, a partner at Brewer, Attorneys & Counselor and counsel for 3M, in a statement emailed to The Gazette. "In any event, we believe these claims against 3M in connection with AFFF lack merit. 3M sold these products with instructions regarding their safe use and disposal."

The Hannon Law Firm of Denver, which filed the suit, declined to comment Tuesday.

The Air Force has banned use of the foam except in emergencies and has awarded a contract for a replacement that officials say is less toxic.

Across the nation, hundreds of sites have been identified where the military used the foam.

Class-action suits have been used in recent years against chemical manufacturers that made perfluorinated compounds alleging contamination around their plants.

The new suit blames the Air Force for contaminating the wells, but blames the manufacturers for knowingly building a toxic product. The suit also claims manufacturers didn't warn the military about the dangers of the foam.

"Upon information and belief, defendants had known of these health and environmental hazards for years," the lawsuit maintains. "For example, by the mid-1980s, 3M began a major program to review personnel handling of fluorochemicals and determined that fluorochemicals could bioaccumulate," meaning that they could build up in human blood over time.

In 2000, 3M reached an agreement with the EPA to phase out the foam, stopping manufacture in 2002.

The military is largely immune from lawsuits for actions taken on behalf of national defense.

"In general, the concept is that the government, as sovereign, is immune to suit by private parties - that's the basic principal," said Kevin Lynch, an assistant law professor at the University of Denver.

The chemical compound remains unregulated, and the EPA has only issued health advisories - as opposed to hard limits - on the chemical in drinking water.

The McDivitt Law Firm in the Springs has run TV ads seeking toxic water plaintiffs.

A judge will later rule on whether the lawsuit can move forward and whether it will be allowed as a class action.

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