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Colorado AG sues makers of firefighting foam with 'forever chemicals'

Weiser wants companies to cover costs of investigation, cleanup, monitoring
Peterson Air Force Base workers
Posted at 4:19 PM, Feb 28, 2022
and last updated 2022-02-28 18:19:48-05

DENVER, CO — Colorado Attorney General Phil Weiser sued 15 companies that manufactured a firefighting foam containing so-called “forever chemicals” that have been tied to cancer, birth defects and other illnesses the state says have been found in water sources and soil across the state.

The lawsuit seeks to have the companies pay to further investigate, clean up, and monitor contamination at any site where the forever chemicals – polyfluoroalkyl or perfluoroalkyl substances (PFAS) – were used, spilled, stored, or disposed of, according to the lawsuit filed Monday in Denver District Court.

“Colorado now has forever chemicals in our soil and drinking water systems and people’s health is at risk,” Weiser said in a statement. “These companies knew that these chemicals posed significant threats to human health and the environment and nonetheless put Colorado at risk; it is important that they pay for the harm they caused.”

Weiser claims the companies sued Monday either knew of, or should have known, how harmful the PFAS, which were used in the aqueous film forming foams (AFFF), were to the environment, animals and humans.

According to the lawsuit, PFAS have been found in soil, surface and ground water in 50 of Colorado’s 64 counties, and close to Peterson and Buckley Air Force bases, Fort Carson, the U.S. Air Force Academy, the Suncor plant, at Colorado’s federal airports and near fire districts in Teller and Boulder counties.

PFAS were developed by 3M in the 1940s by 3M, which started selling them in the early ‘50s. The company left the PFAS market in 2000, but the 15 companies named in Monday’s lawsuit continued to sell them, according to Weiser’s suit, even though by then there was data that the AFFF products were harming people and the environment.

The 15 companies named as defendants in the lawsuit are E. I. Du Pont De Nemours and Company; The Chemours Company; The Chemours Company FC, LLC; DowDuPont, Inc.; Corteva, Inc.; Dupont De Nemours, Inc.; Tyco Fire Products, LP; Willfire HC, LL; Chemguard, Inc.; National Foam, Inc.; Angus Fire Armour Corporation; Angus International Safety Group, Ltd.; Royal Chemical Company; Buckeye Fire Equipment Company; and Fire Services Plus, Inc.

The PFAS are waterproof and stain resistant and have been used in a wide variety of products for years, including rain jackets, mattress pads, napkins and cookware. They are also used to make the AFFF products – a foam combined with water that can be sprayed by firefighters to help smother fires involving flammable liquids, like various fuels.

The U.S. Environmental Protection Agency has been studying the effects of PFAS at various sites and their environmental and health effects. And the makers of the compounds have faced lawsuits from people whose health was affected by them.

“We need all the companies involved to be held responsible and we need to get relief,” Weiser said in an interview Monday. “And that means money damages. That means remediations of the harm to public health.”

According to the lawsuit, the EPA last November asked its science advisory board to review new data surrounding types of PFAS and new draft documents “indicate that the levels at which negative health effects could occur … are much lower than previously understood.” It said the EPA expects to issue new proposed rules surrounding the compounds this fall and a final rule in 2023.

According to a Military.com report from December, Congress has plans to order the Pentagon to complete the process of identifying every installation contaminated by PFAS. The Pentagon has already banned the use of the firefighting foams containing them except for during emergencies and aboard ships, according to the outlet, but has had trouble finding foams that do not contain the compounds.

Colorado started in the past few years collecting sampling data on PFAS contamination, and lawmakers in 2020 passed measures for a takeback of the firefighting foam, the development of a safe disposal system and additional sampling. They also moved to require facilities with discharge permits to self-report on a survey about PFAS monitoring data.

The 2020 sampling included half of the state’s community public drinking water systems, which serve about three-quarters of the population, and found 34% of those systems had some PFAS levels in their drinking water.

PFAS were found in the Security-Widefield, Fountain and Air Force Academy areas, in Sand Creek downstream of Suncor, and in other areas of the state. They were also found in numerous groundwater and surface water testing sites and in soil testing, according to the CDPHE and the lawsuit.

The lawsuit says all samples taken from lakes and rivers in Colorado had some detectable levels of PFAS chemicals.

The lawsuit claims that Chemours was created to transfer Historical DuPont’s liabilities stemming from other lawsuits in other states to Chemours “was an attempt to segregate and escape from a large portion of Historical Dupont’s environmental liabilities.”

But Dan Turner, a spokesperson for DuPont, said in a statement Monday the company believes the complaint is without merit “and is the latest example of DuPont being improperly named in litigation.”

“In 2019, DuPont de Nemours was established as a new multi-industrial specialty products company. DuPont de Nemours has never manufactured or sold AFFF,” Dan Turner said, adding that the company has since 2015 split into different companies and merged with Dow Chemical and E.I. du Pont de Nemours and that the lawsuit “ignores this corporate evolution.”

The suit claims the “gravity of the environmental and human health risks created [by the PFAS] … far outweigh any potentially offsetting benefit.”

In addition to the full investigatory, cleanup and reporting costs, the suit also asks a judge to find the companies violated the Colorado Uniform Fraudulent Transfer Act in an attempt “to limit the availability of assets to cover judgments for all the liability for damages and injuries” caused by PFAS and AFFF.

The suit calls for further damages, restitution or disgorgement and costs and expenses of the attorney general’s office’s actions.

“We don’t necessarily know exactly what all the actors knew at what time. But what all of them have in common is they knew, or they should have known, that there was a public health risk,” Weiser said in an interview. “And despite that, they failed to take basic steps to manage or mitigate the harm to public health.”