Mining Firm Wins a Ruling, but Loses a Town
As 12-Year-Old Colo. Case Over Toxic Runoff Is Sent Back to Trial Judge, Opposition to Waste Plan Grows

CAÑON CITY, Colo. -- It looked at first like a classic story of the "Erin Brockovich" genre: A feisty young lawyer and her long-suffering clients took on the local uranium mill -- and won big. In a series of trials, local residents who say they were poisoned by toxic runoff won more than $40 million from Cotter Uranium Corp.

But Hollywood-style happy endings are hard to come by in this hardscrabble canyon country. Last month, a federal appeals court in Denver threw out all the verdicts against Cotter.

The court ordered the trial judge to start the cases over -- a dozen years after the litigation began.

While the judges gave Cotter a clear legal victory, the company, which helped create the nation's nuclear age, has suffered severe political setbacks in this city of 16,000, partly because of publicity from the court cases and partly because of corporate plans to bring in toxic waste from other states for processing here. Even the Cañon City Daily Record, long a Cotter supporter, concluded on its editorial page that "Cotter's time has come and gone."

In short, it's hard to find anyone who has emerged a winner from Cañon City's half-century in the uranium business. Cotter executives say their current business plan is to get out of uranium processing as soon as possible. The plaintiffs in the lawsuits -- there are nearly 50 and many of them are aging, sick, or both -- seem to be losing whatever hope they had.

"Guy like me, 83 years old and not gettin' any younger, I'll probably never see a dime of it," said Norman Platt, who was awarded $1.6 million after alleging that his wife's death from bronchial cancer and the contamination of his farm were the result of polluted runoff from the uranium plant.

"But it isn't nothing about the money," Platt went on, his husky voice shaking with anger. "At this point, all we wants is to get our day in court and see those bastards shut down."

Faced with that kind of animosity, corporate spokesman Jerry Powers lamented the community's failure to recognize Cotter's service to the nation.

"You have to remember, we were recruited in the 1950s by the federal government," he said, to provide uranium fuel for the infant atomic power industry and for Cold War nuclear arsenals.

Suzelle Smith, the 41-year-old Los Angeles litigator who took up the Cañon City case when she was just of out the University of Virginia Law School, said the appeals court decision could become "a terrible precedent" for plaintiffs in environmental cases.

The U.S. Court of Appeals for the 10th Circuit said the trial judge in the case should have held a pretrial hearing about the expected scope of testimony by expert witnesses at the trial. "That will add a whole new layer of time and cost to any suit," argued Smith, whose firm has spent about $1 million on the Cotter case without earning any fees. "It makes one more chance for the deep-pocket defendant to bankrupt a plaintiff before a case even gets going."

The saga that has produced so much sorrow in Cañon City actually began in 1957, when the Atomic Energy Commission hired Cotter, a mining firm, to build the plant here for turning uranium ore into "yellow cake," a basic material of nuclear reactors and weapons. The factory was located on a hilltop in Lincoln Park, a neighborhood of family homes and small farms just south of the city.

Following standard procedure for the time, the firm created "tailing ponds" to hold wastewater and residue left over from the milling process.

"It is true that there was seepage from those ponds into the groundwater and soil," said Powers, the corporate spokesman. "But in the 1960s, it was industry practice to build tailing ponds without any concrete liner."

In a region riddled with abandoned mine shafts and a complex spaghetti of irrigation canals -- known here as "ditches" -- the contaminants from Cotter's waste flowed downhill to the nearby properties.

"They irradiated our water," said Deyon Boughton, 73, whose small farm is downstream from the plant. "This land has been irrigated for 100 years by the same ditch, and suddenly we found out that the water in the ditch was carrying heavy metals and radiation to our crops and livestock. They contaminated our food chain."

Boughton's farm is barely a mile from the Cotter mill, but her connection to the firm was even closer than that. Her husband, Lynn, was Cotter's chief chemist for two decades. He later contracted lymphoma, which doctors attributed to radiation, and died in 2001. The Boughtons sued Cotter and received a settlement, "but it was a heck of a lot less than the millions these people won in the trial," Deyon Boughton said.

As awareness of the contamination grew, the federal Environmental Protection Agency designated the neighborhood around the Cotter mill as a Superfund site in 1984, ordering the company to mount a cleanup effort.

Cotter, now a subsidiary of San Diego-based General Atomics, has denied that its runoff caused health problems. Surveys by the Colorado health department have shown that cancer rates here are not significantly higher than the statewide average.

Because Cotter was one of Cañon City's larger industries, the growing dispute over pollution from the plant caused angry rifts in the community through the 1980s and 1990s. But recently, the trend of opinion has turned sharply against Cotter, said Cañon City lawyer Dan Slater.

"This is a conservative Republican area, mostly pro-business and skeptical about government," Slater said. "But it has turned into a hotbed of environmentalism. People are acutely aware now of the chemicals coming out of the plant. And the general view is, that's not what we want our town to be."

Cañon City is best known in Colorado as the home of the legendary state penitentiary "Old Max." In fact, there are 14 state and federal prisons in the area, and the corrections industry is the biggest employer.

Mining and milling of ore traditionally comprised the second-largest line of work.

But the fastest-growing industry today in this mile-high mountain town, where the Arkansas River begins its long trip toward the Mississippi, is tourism. The thousand-foot deep Royal Gorge just west of town, a scenic railroad and a white-water rafting industry are increasingly popular attractions, said George Turner of the Chamber of Commerce.

The problem for Cañon City is that its past hardly contributes to a future built around scenery. "Being a dumping ground for prisoners and for radioactive waste doesn't really help you attract tourists," said Slater, the lawyer.

Accordingly, much of the town is now fighting to stop Cotter's plans to develop a new line of business to process and store toxic waste from other mills. Even the Chamber of Commerce, of which Cotter has been a leading member for decades, has refused to back the company in its effort to gain required state licenses.

And the "Erin Brockovich" figure in the case, Suzelle Smith, said she will continue fighting the company in the courts. "If we have to go to the Supreme Court, that's what we'll do," she said. "When you get 12 years into a fight like this, you're sure not going to give up because of one appellate court decision."