031219-news-water-lawsuit
Caption +

Water sits in a retaining pond below a firefighting training area in November 2016 at Peterson Air Force Base in Colorado Springs.

Show MoreShow Less

The Security Water District and Venetucci Farm’s owner are suing the federal government for at least $18.3 million amid allegations that the Air Force ignored its policies on hazardous waste disposal for decades, tainting a key aquifer and leaving the fabled farm dry and contaminated.

The lawsuit by the water district and the Pikes Peak Community Foundation marks a new legal front in the expanding battle to hold agencies and companies responsible for fouling the Widefield aquifer, which is saturated with per- and polyfluorinated substances, also called PFAS. The toxins were used for decades in a firefighting foam at Peterson Air Force Base, as well as in many household nonstick items.

Previous claims brought by thousands of El Paso County residents challenged the foam’s manufacturers and distributors, as the federal government is largely immune from lawsuits over actions of the military.

Colorado senators join forces to hasten clean up of water contaminated by firefighting foam toxins

But in a break from that trend, the latest lawsuit targets the U.S. government under the Federal Tort and Claims Act, citing the actions of Air Force personnel dating to the 1970s.

“It was a very difficult decision,” said Roy Heald, manager of Security Water and Sanitation Districts. “But I think the biggest thing was just the dollars that were spent out of district reserves, and that money was intended for other purposes that now have to be deferred.

“If we can recoup that money, then it will be beneficial to our ratepayers.”

The water district, which typically got about half of its water from the aquifer, is seeking at least $14.2 million. That includes its costs responding to the contamination, such as piping in clean water from the Pueblo Reservoir and paying a premium to buy water from Colorado Springs Utilities.

Nearly $8.6 million is for the future costs of operating a system for 20 years for “removal of PFCs from Security’s water rights.”

The Pikes Peak Community Foundation is seeking nearly $3.2 million for past and future agriculture losses at the farm, which sits atop a portion of the aquifer that was among the most affected. That total also would pay for a treatment system so the farm again could irrigate its crops.

The district and foundation also asked the judge to award either of them more than $840,000 in water lease payments that Security never made to the foundation because the farm’s wells were shut down.

The lawsuit claims personnel at Peterson Air Force Base broke decades of military polices while using and disposing of the foam.

For example, it cited Air Force reports that the chemical was sprayed on unprotected ground, and that effluent from a base training site was flushed into Utilities’ wastewater treatment plant, which was not built to remove the small and remarkably durable chemicals. As a result, the chemicals were flushed into Fountain Creek, the aquifer’s main source of water.

The manmade chemicals, also called perfluorinated compounds, break down on a timeline described as geologic by researchers. They also bioaccumulate, meaning they build up in the body over time and hardly if ever leave.

The chemicals have been linked to a host of ailments, including cancer, liver damage, high cholesterol and low infant birth weight.

In May 2016, the Environmental Protection Agency issued a lifetime health advisory for two types of PFAS, of which there are thousands. But the substances remain unregulated, meaning no enforceable drinking water standards protect Americans.

Even so, water districts across southern El Paso County leaped to action in 2016 amid a public outcry over the chemicals’ presence in residents’ drinking water.

For a time, Security, Widefield and Fountain water managers cut off access to the aquifer and installed treatment systems or piped in cleaner water. Most of that work came without financial help from the Air Force, often leaving ratepayers on the hook.

Those treatment systems have dropped the chemicals to nondetectable levels in residents’ tap water. But they came at a cost.

Security water managers spent more than $6 million in unreimbursed costs responding to the crisis. Widefield Water and Sanitation District spent about $2.5 million without help from the military, and Fountain has spent about $1 million.

Those tabs have stopped rising over the past year, since the Air Force began picking up a greater share of the tab. Most notably, it has agreed to pay millions of dollars for long-term treatment facilities for Security, Widefield and Fountain.

But Air Force officials say they have no authority to reimburse the districts for money spent. Nor do their recent payments do anything to remove the chemicals from the aquifer once and for all.

Fountain leaders opted not to join Security in suing the federal government, said Curtis Mitchell, the city’s utilities director.

Widefield’s water manager, Brandon Bernard, also said he has no appetite to follow suit.

“We just want to keep in good relations with the Air Force and keep the steady progress moving forward, getting our new mitigation facility built,” said Bernard, whose district has not raised rates due to the water crisis.

Heald said Security’s decision was driven by its disproportionate financial burden. The water district, which is closest to Peterson and Utilities’ wastewater treatment plant, has imposed two rate increases: 15 percent last year, and 9.5 percent this year.

“Concern about the relationship was one thing, but again, the magnitude of the dollars involved, we just felt we couldn’t let that go,” Heald said.

The suit comes on top of litigation brought by about 7,000 El Paso County residents targeting 3M and several other manufacturers and distributors of the foam.

Those cases, which sought the creation of a blood testing program and damages for medical conditions caused by the chemicals, recently were consolidated before a South Carolina federal judge alongside similar cases across the nation, said David McDivitt, an attorney helping oversee the local cases.

No decision has been made on whether those local cases will be tried as a class.

Load comments