Class-action certification sought by residents of Fountain, Security and Colorado Springs — The Denver Post

Photo via USAF Air Combat Command
Photo via USAF Air Combat Command

From The Denver Post (Kirk Mitchell):

The lawsuit seeking class-action certification was filed Thursday on behalf of the nine residents living near Peterson Air Force Base, was filed by Colorado Springs attorney Michael McDivitt and New York City attorneys Hunter Shkolnik, Paul Napoli and Louise Caro.

Other companies named as defendants in the lawsuit include The Ansul Company of Wisconsin; National Foam, Inc. of Pennsylvania; Angus Fire of Bentham, United Kingdom; Buckeye Fire Equipment Company of Mountain, N.C.; and Chemguard of Wisconsin.

The plaintiffs are seeking a declaration that the defendants acted with gross negligence and careless disregard for the safety of residents who use water from the contaminated watershed. They are seeking a court order requiring defendants to test and monitor each property and all drinking water within the contamination area.

They are also asking that a judge order defendants to provide medical monitoring for all those in the proposed class, the lawsuit says. The plaintiffs are also seeking compensatory and punitive damages.

The lawsuit says the U.S. Air Force and other branches of the military, including the Army, use or have used firefighting foams that degrade into perfluorooctanoic acid (C8), which is highly soluble in water and likely to contaminate water supplies. The so-called aqueous film forming foam is water-based and used to fight difficult fires, particularly those that involve petroleum or flammable liquids.

A similar federal civil lawsuit was filed Wednesday against 3M, Ansul and National Foam by Denver attorneys Kevin Hannon and Justin Blum on behalf of three Colorado Springs residents. Plaintiffs in that case are seeking class-action certification and damages in excess of $5 million.

Peterson, Fort Carson and the Colorado Springs Airport have been linked to contamination of the Fountain Watershed area, the lawsuit says.

The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.
The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.

C8 has been detected in levels exceeding EPA health standards of 70 parts per trillion in the Fountain Creek watershed that provides municipal water and feeds private wells, the lawsuit says. In fact, the Fountain watershed is one of the hardest-hit of 63 areas nationwide where C8 contamination exceeds EPA risk levels, it says.

A panel of scientists, including three epidemiologist formed to study water contamination in Wood County, W.Va., “found probable links between (C8) and kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy induced hypertension and hypercholesterolemia,” the lawsuit says.

The plaintiffs all tested for elevated levels of C8 in their blood and their properties likewise had elevated levels of C8. They include:

  • Alan and Leslie Davis and Donald and Theresa Easter, all of Colorado Springs, get their water from the Widefield Water and Sanitation District.
  • Billy and Linda Long, and Lonnie Rouser Sr., all of Fountain, get their water from Fountain Water District.
  • Joyce Moore and Rhonda Sharkey, both residents of Security, receive their water from the Security Water District.
  • Besides being used in firefighting foams, C8 was once widely used in nonstick cookware and as surface coatings for stain-resistant carpets and fabric, the lawsuit says. The chemical is readily absorbed in the blood stream, kidney and liver after consumption or inhalation, the lawsuit says.

    The EPA issued lifetime health advisories about the health effects of C8, the lawsuit says. It can remain in the environment, particularly in water, for many years and can be carried in the air.

    An August 2016 the U.S. Army Corps of Engineers study found that the source of groundwater contamination of the Fountain watershed could have come from fire training areas at Peterson Air Force Base, the lawsuit says.

    All 32 of Security Water and Sanitation District’s municipal wells are contaminated, the lawsuit says. One well was 20 times the EPA’s risk level and the EPA recommended that pregnant women and small children should not drink the water.

    The class-action designation is sought in part because it would be impractical for the great numbers of people affected by the pollution to litigate their claims individually, the lawsuit says.

    Widefield aquifer via the Colorado Water Institute.
    Widefield aquifer via the Colorado Water Institute.

    CU grads invent water filter that targets hormones — TheDenverChannel.com

    noestra

    From TheDenverChannel.com (Nicole Brady):

    Hormones can get into the water by seeping out of of landfills, through human and livestock waste, and industry waste. A filter like Brita won’t get rid of hormones. An expensive reverse osmosis filtration system will, but Noestra is designed to be an affordable alternative — and well worth that price, considering the impact hormones can have on our health.

    “Over time, we’ve found those hormonal balances really do add up and it does have a serious effect on your overall well-being,” co-creator Emma Jacobs said.

    And if you need evidence that hormones are indeed messing with our natural balance, consider what the Noestra creators found when they tested water from the Boulder Creek.

    “This is what usually scares people,” says Eversbusch. “You can measure the amount of hormone by semester. So in the fall and spring it’s pretty high, and when all the students leave in the summer it’s much lower.”

    Second Widefield aquifer lawsuit in the works

    Widefield aquifer via the Colorado Water Institute.
    Widefield aquifer via the Colorado Water Institute.

    From The Colorado Springs Gazette (Jakob Rodgers):

    McDivitt Law Firm said it plans to file a lawsuit this week over the fouling of the Widefield Aquifer, which supplies drinking water to thousands of residents in southern El Paso County.

    McDivitt is partnering with a New York firm, Napoli Shkolnik, PLLC, which has been running television ads in recent months to woo clients.

    Mike McDivitt, the firm’s founder, said about 1,000 people have retained his firm, and many more residents have expressed interest.

    The possible move comes on the heels of another federal suit filed earlier this week against 3M, Ansul Foam of Wisconsin and National Foam of Pennsylvania. The companies manufactured and sold a military firefighting foam laden with chemicals associated with a host of health ailments, including cancer.

    The first suit was filed by the Hannon Law Firm of Denver on behalf of three customers receiving contaminated water.

    McDivitt’s suit was expected to be filed Wednesday, but he said the filing was delayed.

    #AnimasRiver: Senators seek repayment for mine spill response — The Farmington Daily Times

    The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
    The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

    From The Farmington Daily Times (Noel Lyn Smith):

    A half dozen U.S. senators are backing an amendment to expedite federal reimbursements to states, tribes, local governments and individuals for expenses incurred during the Gold King Mine spill.

    Sen. Cory Gardner, R-Colo., led the effort on Monday with senators Tom Udall, D-N.M., Martin Heinrich, D-N.M., Michael Bennet, D-Colo., Orrin Hatch, R-Utah, and John McCain, R-Ariz., in introducing an amendment to a Senate bill for the Water Resources Development Act.

    In addition, the amendment calls on the U.S. Environmental Protection Agency to work with states, tribes and local governments to develop and implement a water quality program to monitor the rivers contaminated by the Aug. 5, 2015 spill…

    The water quality program would be responsible for collecting water samples and sediment data, and releasing that information online for the public’s review, according to the amendment.

    In a joint press release on Monday, the senators said they support holding the EPA accountable for the spill, and they emphasized that reimbursements to government entities and individuals are needed.

    Udall said reimbursements to state and tribal governments “have taken far too long,” and the amendment will start the reimbursement process.

    “It also takes important steps to help rebuild confidence in the quality of the water in the San Juan and Animas rivers through long-term monitoring,” Udall said.

    Heinrich called the rate to repay individuals “unacceptable.” He also called for action to reform “outdated policies” to clean up contaminated mines in the West and on tribal lands.

    “Western communities deserve full and complete protection of their water, land and livelihoods,” Heinrich said.

    The bipartisan effort received support on Wednesday from Navajo Nation President Russell Begaye, who continued his calls for reimbursing Navajo farmers.

    Begaye said in a press release that funds received as a result of the amendment would be used to build a laboratory in Shiprock that would be used to study the water quality of the San Juan River.

    “This amendment sets forth funds to be provided for monitoring of the San Juan River and irrigation canals. We need for our farmers to be confident that the water quality is irrigable,” the tribal president said.

    #AnimasRiver: Bennet and Gardner hope to push payments from the EPA #GoldKingMine

    This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]
    This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]

    From The Durango Herald (Jonathan Romeo):

    Colorado senators Michael Bennet, a Democrat, and Cory Gardner, a Republican, joined Orrin Hatch, R-Utah, Martin Heinrich, D-New Mexico, John McCain, R-Arizona, and Tom Udall, D-New Mexico, in endorsing the measure, according to a news release…

    In a prepared statement, the senators said they hope to push the Environmental Protection Agency to cover costs incurred beyond Oct. 31, 2015, which the agency said it would not do, barring extenuating circumstances.

    The measure would require EPA to pay all costs eligible for reimbursement unless the agency proves that the amount is not consistent with what is mandated under federal law.

    If approved, EPA would have 90 days to pay out claims and give notice whether the agency will pay within 30 days of reaching a decision. It would also establish a water quality-monitoring program, which the EPA would reimburse local agencies to operate.

    “It’s been more than a year since the Gold King Mine spill, and it’s unacceptable that the EPA still hasn’t fully reimbursed Colorado communities for their costs,” Bennet said in the prepared statement.

    “The communities in southwest Colorado paid out of their own pockets to maintain drinking water, provide for extra staffing costs, keep the public updated, provide water for irrigation and monitor water quality. This amendment ensures that the EPA fully reimburses these communities and works collaboratively to institute a robust long-term water quality monitoring plan.”

    Reimbursements to entities affected by the Gold King Mine spill, for which the EPA has taken responsibility, have trickled in since an agency-contracted crew released a massive plume of mine wastewater more than a year ago…

    According to EPA records, the agency has paid more than $5.2 million in costs associated with the Aug. 5 blowout, but local agencies say outstanding costs remain unpaid.

    San Juan County (Colorado) administrator Willy Tookey said the EPA has paid more than $250,000 (EPA records show $269,196) to the county and town of Silverton, yet $90,000 remains outstanding.

    Megan Graham, public affairs officer for La Plata County, said the county has received $172,000 in costs, and is waiting for an additional $87,000. EPA records indicate $369,578 has been paid out to La Plata County, and it was unclear Monday why there is a discrepancy.

    The city of Durango, too, says it’s due more money, having been paid $45,410 of its $444,032 request. Finance director Julie Brown said the city was notified Monday that the EPA intends to pay $101,465.

    Local companies and individuals impacted by the spill also are caught in the EPA’s waiting game for reimbursements.

    As of July, the EPA received 68 claims for financial reimbursements, yet the agency has not made any awards. The EPA has maintained it must conduct all reviews and investigations before awarding grants for financial damages.

    It was unclear Monday what the 68 filings totaled in cost amount. However, a response to a Freedom of Information Act request filed in October, when there were just over 30 filings, showed claims of financial damages surpassed $1.3 million.

    Those who believe they have been financially damaged by the EPA-triggered event have until Aug. 5, 2017, to file a Form 95, the claim process for financial reimbursements from economic loss caused by wrongful U.S. government actions.

    Lincoln Park/Cotter Mill update: Cotter to pay ~ $1 million for EPA oversight

    Lincoln Park/Cotter Mill superfund site via the Environmental Protection Agency
    Lincoln Park/Cotter Mill superfund site via the Environmental Protection Agency

    From The Pueblo Chieftain (Tracy Harmon):

    Cotter Corp. has agreed to pay the U.S. Environmental Protection Agency nearly $1 million to cover past costs the government agency incurred while working at the Superfund site during a two-year period.

    The Cotter Corp. oversees a now-defunct uranium mill just south of Canon City which has been on the EPA’s Superfund cleanup list since 1984. Officials are in the process of decommissioning the mill.

    The agreement requires Cotter to pay EPA $957,604 for past oversight costs, incurred between 2012 and 2014. Funds are required to be paid to the EPA by Sept. 23 and will be placed in a special account and used to pay for any future costs at the site, according to Richard Mylott, EPA spokesman.

    Public comment submitted in June urged the EPA to seek full restitution.

    “The EPA believes the settlement is in the government’s best interest. The EPA will immediately recover $957,604 in past response costs that will be used to fund EPA’s future work at the site and avoid potentially protracted expensive litigation,” according to the 19-page settlement agreement.

    One public comment submitted indicated it is difficult for the public to weigh-in on the agreement because government documents were not made available to assess what the total cost of oversight has been to the EPA. Certain EPA billing documents were not made public because of confidential business information which protects the documents from being released under the Freedom of Information Act, according to the agreement.

    In a separate agreement, penned in June 2014, Cotter Corp. has agreed to pay EPA’s costs for oversight of the mill’s cleanup into the future.

    Cotter produced uranium oxide, or yellowcake, at the mill in Fremont County from 1958 until 2006. Contamination to groundwater and soil resulted from the use of unlined impoundment ponds to hold tailings between 1958 and 1979.

    In addition, a June 1965 flood caused the impoundments to overflow into Sand Creek, releasing contaminates into the nearby Lincoln Park neighborhood, Mylott explained.

    Cotter officials have been working to clean up contamination since 1988.

    #AnimasRiver: Lackawanna Mill cleanup update

    Silverton, Colo., lies an at elevation of 9,300 feet in San Juan County, and the Gold King Mine is more than 1,000 feet higher in the valley at the left side of the photo. Photo/Allen Best
    Silverton, Colo., lies an at elevation of 9,300 feet in San Juan County, and the Gold King Mine is more than 1,000 feet higher in the valley at the left side of the photo. Photo/Allen Best

    From The Durango Herald (Jonathan Romeo):

    On Monday, a joint project between the Bureau of Land Management, the town of Silverton and volunteers from around the area hauled away the last metal debris around the Lackawanna Mill, a site just north of Silverton not included in the EPA’s Bonita Peak Mining District Superfund designation.

    “While there’s still talk about how to deal with the big things, we’re looking around to see what are the little projects we can do that can have some punch,” said Lisa Richardson, a … technician for BLM.

    The remediation of the Lackawanna Mill Site began in 1996 when crews removed piles of mine tailings that were dumped beside the Animas River when the mill operated from 1928 until it shut down sometime in the 1960s.

    “The river was eroding into the tailings,” said Peter Butler, a coordinator with the Animas River Stakeholders Group. “Because it was right on the banks of the Animas it justified doing that.”

    As a result, an area that once leached heavy metals into the Animas River is now a thriving wetland, home to several beaver ponds and prime habitat for riparian and avian life.

    In 1999, the town of Silverton used a Great Outdoors Colorado grant to purchase about 26 acres for $110,000 with the intent of expanding Kendall Mountain Recreation area, which included part of the Lackawanna mill. The BLM also owns a portion of the land.

    At the time, Silverton town officials proposed repurposing the historic mill into a space that would promote economic development and heritage tourism. Such ideas as a museum, artist residency, hotel and even an amphitheater were thrown into the mix. Lack of funding stalled the project.

    However, last year life at the Lackawanna Mill seemed to reawaken. The town of Silverton launched a project to repair the building’s failing roof and other crumbling infrastructure.

    “It (the damage) was significant,” said Chris George, parks, facilities and recreation coordinator for the town. “There were a lot of areas we couldn’t stand on until it was reinforced.”

    The project, completed this year, didn’t address any of the structural needs inside the decrepit mill, George said. And many outstanding issues, such as utilities and access, remain a major obstacle to Lackawanna breathing new life.

    “It would be an incredibly challenging job to make that a piece of economic return,” said town Administrator Bill Gardner. “Will it happen someday? I hope so. The dream is still there.”

    Regardless, Richardson said removing the debris, which included rusty scrap metal, car parts, plywood and “just junk,” was significant both aesthetically – the mill is visible from town – and environmentally as the site is located above the wetlands and beaver ponds.

    “It’s been used as a dumping site, so a lot of the junk is not associated with the mill, archaeologically speaking,” she said. “If we can, we want to keep those things on-site and put them in places where they won’t end up in the beaver ponds, which are really taking off.”

    Richardson said the genesis of the debris cleanup day started when Outward Bound, an outdoor education program, approached the BLM with the idea of a community service project at Lackawanna.

    Last year, a class of Outward Bound students built a temporary boardwalk across the wetland, allowing crews of mostly volunteers access to the mill site.

    “All this volunteer work has led this project to cost almost nothing,” Richardson said.

    Altruism is no stranger in the once-heavily mined San Juan Mountains around Silverton. The mining has impacted water quality in the Animas watershed since it started in the 1870s. For the past two decades, efforts to improve the watershed have been led by the Animas River Stakeholders Group, a coalition of mainly volunteers.

    “If you add it all up over 20 years, there’s probably a million dollars of volunteer time from the stakeholders group,” Butler estimated, adding that the group has held similar community cleanup days.

    “I think people really enjoy the beauty of the landscape around them, and this is something simple and easy they can do to try and improve environment.”

    Despite the goodwill of countless individuals and organizations, the scope of hard-rock mining’s legacy around Silverton and the effects to downstream communities proved too large for a grass-roots movement to handle.

    Last week, the EPA officially declared a number of mine sites responsible for degrading water quality as a Superfund site, thereby taking control of future cleanup efforts on a substantial portion of the district.

    The EPA, for its part, has maintained in the year since one of its contracted crews triggered a massive blowout at the Gold King Mine that the agency will involve local entities as best it can.

    Bill Simon, a retired co-founder of the stakeholders group credited with organizing countless cleanup days, said he’s not so much opposed to federal intervention as he is to losing community involvement.

    “The advantage of doing that is you develop a sense of stewardship so that they care for what they’ve done and fully understand the consequences, environmentally, of extraction endeavors,” Simon said. “It gives an idea of the true cost.”

    Next year, if the funds are available, Richardson said a project will aim at reseeding the grounds around Lackawanna. She hopes to draw out volunteers for that effort, too.