Daily Record News Group

DENVER - In late 1983, the State of Colorado sued the Cotter Corporation for $50 million, claiming the company's Canon City uranium mill had polluted the land, air and water surrounding the mill site just south of the city.

But records show the state - accused by Cotter of knowing about and allowing the alleged pollution of the Lincoln Park area - later settled the suit for $11 million dollars against the advice of the Environmental Protection Agency.

Records also show the state was the owner of the 640-acre mill site during much of the period when the pollution was alleged to have occurred.

The suit, which was settled in 1987 and finalized in 1988, was filed only months after federal officials determined that Lincoln Park was among the moat polluted areas in the country and placed it on the National Priority, or Superfund, list.

The suit and the settlement also came on the heels of two studies that were commissioned by the EPA and which were highly critical of both Cotter and the Colorado Department or Public Health and Environment, the agency that regulates radioactive practices at Cotter.

Although Cotter had in the 1970s been sued by and made a settlement with a Lincoln Park farmer who claimed molybdenum discharges had killed some of his cattle, the 1983 suit was the first major legal action taken against the mill since its opening in 1958.

But Cotter's legal problems began to surface in May 1983, when the EPA announced it was

placing Lincoln Park on the Superfund list. According to an EPA report issued that month, groundwater supplies in Lincoln Park had become polluted by the "waste disposal activities" at Cotter. The EPA claimed liquid waste containing radioactive material and heavy metals had been discharged for years into unlined tailings ponds and said Cotter's own data indicated a "plume" of contaminants that included molybdenum, uranium and selenium had spread along the so-called Sand Creek drainage extending east to the Fawn Hollow area several miles away.

In early 1984, Cotter took its case to a federal district court in Washington, D.C., but again failed to block the listing,

The state, which was and still is in charge of regulating Cotter, found itself in a precarious position when Lincoln Park was placed on the Superfund list. Under the 1980 Comprehensive Environmental Response and Liability Act - also referred to as CERCLA or the Superfund Act - both the state and Cotter could have been sued by the federal government.

The state was the longtime owner of the land on which Cotter was built in 1958. The State Board of Land Commissioners that year agreed to lease the old 640 acre "school section" to Cotter, but in June 1983 - a month after the EPA announced it was going to list the property as a Superfund site - the site was sold to Cotter for $38,400. State law at the time required the Land Board to solicit bids and advertise the sale of the land in a newspaper for a month, but there is no record of that happening.

Six months later, in December 1983, the state filed suit against Cotter. But its previous ownership of the mill property may have hastened the settlement of the suit.

In July 1984 a lawyer for Cotter wrote a letter to then-Colorado Attorney General Duane Woodard reminding the state of its alleged role in the pollution and announcing that Cotter would countersue the state.

"The mill is located on lands which were owned by the state during the period 1957-1953," Cotter attorney Marilyn Alkire wrote to Woodard. "Such damages, if any, have occurred with the knowledge and consent of the state. The state has admitted these facts in its reply to the counterclaim of Cotter."

Alkire’s letter also put the health department on the hot seat.

"Moreover, the state, by and through the Colorado Department of Health, has formally approved the Cotter milling operations by issuance and subsequent renewal of a radioactive material license," she wrote. "As a consequence of the ownership by the state lands on which the Cotter mill is located and the knowledge, consent and approval by the state of the mill operations, the state is liable to the same extent as Cotter for any damage which may have resulted from Cotter’s milling operations."

Alkire’s letter wasn’t the first criticism of the health department. In 1979, the EPA, after receiving an inquiry from union mill workers about employee safety, issued a report highly critical of both Cotter and the health department. It recommended the department take its enforcement duties more seriously and hinted the department had been lax in the past.

As part of its suit against Cotter, the state in 1985 contracted for a study of pollutants believed to have come from Cotter. That study criticized Cotter's monitoring of its own radiation.

"During.the 28 years.of regulation, there has been a continuum of and citations for the lack of, or inadequacy of, surveys to ascertain the quantities of radioactive materials and other waste releases to the air, groundwater and surface water," it said, adding that airborne contamination was coming from uncovered ore and contaminated soil at the site.

The report identified the "major pathway" of the groundwater contamination as a gap in the ridge of the Soil Conservation Service dam located just north of the mill - a pathway leadding to Lincoln Park and carrymg high levels of radiation.

"The contaminant plume in the groundwater of Lincoln Park contains levels of uranium and molybdenum in excess of the drinking water levels recommended by the National Academy of Science," it said. "These levels are up to 2,000 times above background (natural 1evels). This groundwater emerges in springs and seeps in lower Sand Creek, which flows to the Arkansas River, and inother springs near the Arkansas River."

Radiation wasn’t the only problem found in the investigation. Sediments in Sand Creek, Willow Creek and Forked Gulch were found to contain - in addition to radioactive material - molybdenum, cobalt, copper, arsenic, cadmium, lead and zinc. Part of the pollution was attributed to the long abandoned New Jersey zinc smelter located between Cotter and Canon city.

The sudy also found that sediment in the Arkansas River contained molybdenum, cobalt, nickel, copper, arsenic, cadmium, lead and zinc "identified with the Cotter site."

The mill site - including its then-new leak-proof' impoundment ponds - also came under attack in the report. The 136 acre new ponds, completed in 1979 as part of the construction of a new mill, were lined with a thick layer of rubber-like Hypalon. That,in turn, was covered with clay. Five years later, both the new impoundment and old tailings pond area were leaking pollutants into the ground, according to the report.

"The new impoundments are leaking and are a continuing source of contamination to the

underlying ground water," the report said. "This conclusion is supported by the increasing 1evels of uranium and molybdenum in the underdrains of the impoundments." The report also claimed the soil in the old tailings area contained 'elevated levels of uranium and molybdenum, nickel and lead to depth in excess of 15 feet - resulting in contaminants leaching into the ground water.

Years later, Cotter employee Louis DiOrio, in a sworn deposition, would testify that he saw workers cutting holes up 18 inches long in the HypaIon barrier to deflate air bubbles that were forming in it during installation. Cotter executive vice president Rich Ziegler, when asked about holes in the liner, said, "They were all repaied."

After four years of legal wrangling, the state and Cotter arrived at a settlement in the suit. That settlement called for Cotter to pay $4.5 million in penalties and $11 million for future monitoring and cleanup - a task that was estimated to take about 20 years. In the months before U.S. District Judge Jim Carrigan approved the settlement, it was roundly criticized.

Among the critics was the EPA, the agency that placed the area on the Superfund list. The EPA in early 1988 called the so-called Remedial Action cleanup plan "seriously deficient" and openly questioned the credibility of the proposed clean-up. In a letter to the health department, the EPA said it had "serious concerns about the Remedial Action Plan and the Consent (settlement) Decree."

The EPA called the cleanup plan "loosely defined and open-ended" and said the Remedial Action Plans "have merit as an initial and partial solution to the overall set of possible public health and environment problems found at the Lincoln Park NPL site." It claimed the settlement plan also left out many pollutants, saying "The only constituents for which standards have been set are uranium and molybdenum."

Cotter responded by saying, "The EPA reviewers are obviously confused and uninformed about essential site characteristics."

Members of the public also criticized the settlement during a series of public meetings. Former Lincoln Park resident Nard Claar, who would later sue Cotter himself, said he wondered how the cleanup cost could be estimated at $50 million and later be set at $11 million. He also predicted the lower-end settlement would "shrink" the size of the area to be cleaned up, leaving many Lincoln Park residents still at risk.

Jake Jacobi, who heads the radiation division at the Colorado Department of Public Health and Environment and who participated in state over-sight of Cotter at the time of the court case, defended the settlement in a recent interview.

"I think it was great settlement for the People of Colorado," he said. "All the people out there using wells were hooked up to city water. Cotter was made to address the soil contamination. We've conducted a very strong environmental cleanup and Cotter has been required to do several environmental studies and has had to fund a health-risk assessment process

"It's a very strong settlement."

Carrigan, in April 1988, gave final approval to the settlement, but the debate and the lawsuits were just beginning.

B.J. Plasket

Daily Record News Group

© Copyright 2002

CAÑON CITY - Since a criminal investigation into allegedly falsified records was launched in 1979, the Cotter Corp.’s regulatory record has been marked by a steady stream of violations that appear to have changed little in 22 years.

Although the 1979-80 investigation produced no criminal charges because the statute of limitations had expired, the allegations contained in that investigative report are strikingly similar to those that resulted in the uranium mill’s license suspension this summer.

And both the 1980 report and the current violations point a finger at Cotter’s management.

But, the mill’s record of violations also appears to pre-date both the 1980 report and the state’s assumption of regulatory duties in 1968.

In a 2000 opinion overturning a lawsuit against Cotter - a suit that has since been re-tried and which resulted in Cotter being ordered to pay pollution victims more than $43 million - the U.S. 10th Circuit Court of Appeals took note of Cotter’s record of repeated violations beginning its first year of operation.

"As early as 1959, the Atomic Energy Commission, which then regulated uranium-production operations at the mill, notified Cotter of violations of the conditions of its license," the court said. "Annual violations of AEC standards of protection against radiation occurred through 1968, when the state of Colorado took over responsibility from the AEC for licensing radioactive materials."

That pattern of violations appeared to come to a head in the spring of 1979, when local resident Paul Kendall complained to then-Gov. Dick Lamm about the mill’s operations. Lamm ordered the Colorado Bureau of Investigation to look into possible criminal wrongdoing at the mill.

Former CBI agent Alvin La Cabe, who is now an attorney and a federal prosecutor in Denver, was given the job of investigating allegations that Cotter, according to his report, "had engaged in improper practices in regard to the monitoring of radiation exposure to its employees and the reporting of those radiation levels to the Colorado Department of Health."

In interviews with the CBI, at least two Cotter laboratory employees claimed they were ordered by then-mill manager Myles Fixman to concentrate on production work instead of safety testing required by the mill’s license.

The late Lynn Boughton, who was the chief chemist at the mill until resigning in 1979, told La Cabe he remembered at least two occasions when air samples were simply not taken at all, but that forms were filled out indicating the tests were completed, and that the figures entered in those forms were made up to match readings taken before and after.

La Cabe’s investigation concluded that no air sample tests were conducted at all during two months between 1975 and 1978. Boughton also claimed that air samples that tested too high for radiation were sometimes re-taken after the sampling area was thoroughly washed down to settle dust.

Boughton also told the CBI that Cotter was always given at least three days advance notice of inspections by health department employees. He said that when inspections were scheduled, Fixman would tell him to put all other work aside and to make sure all the "paperwork" was ready for inspection.

The health department continues to give Cotter advance notice of inspections.

When asked why, Jake Jacobi, who heads the radiation division at the health department and who personally conducted inspections as far back as the 1970s, said it was important for inspectors to be able to talk to specific people at the plant when inspecting. If those individuals were not notified to be there, the inspectors could end up wasting their time, he said.

William Hayhurst, the lab employee in charge of air samples at the time of the CBI report, backed up Boughton’s story and reported to LaCabe that he once told a health department inspector that the air sampling program was a "joke," but that he felt helpless in changing the situation.

Hayhurst also told LaCabe that when sampling indicated an overexposure, he would sometimes re-test the area after a wash-down. According to Hayhurst’s testimony, the mill also took unusual steps prior to and during inspections. He said the floors in the yellow-cake area were routinely washed down every day, but that the walls were only washed immediately before an inspection. He also alleged that employees halted dust-creating activities such as ore-crushing during inspections and that on occasion crushers were purposely scheduled for maintenance so they would not be operating during the inspections.

LaCabe’s report also noted a list of violations discovered by state inspectors in the years leading up to the criminal probe.

In 1975, the mill was cited for failing to properly calibrate air monitoring equipment, failure to maintain a "breathing zone" and overexposing workers to radiation. In 1978, Cotter was cited for allowing workers to be exposed to airborne uranium in excess of allowable limits and failure to report the overexposures.

According to LaCabe’s report, Fixman declined to be interviewed in the investigation until he contacted his lawyer. The report said Fixman’s lawyer agreed to get back to him regarding an interview with Fixman, but never did.

According to the report, La Cabe also had trouble interviewing fearful current and past employees.

"During the first week in August, I conducted a series of interviews with former and current Cotter employees who were associated with the analytical laboratory," the report said. "All expressed concern over being named as the source of any information because of fear of harassment on their job or in the community and fear that the information they might give could possibly affect the health department’s application for the license to run the new milling facility."

B.J. Plasket

Daily Record News Group

© Copyright 2002

CAÑON CITY - While radiation releases have been targeted by many of those who have sued the Cotter Corp. over the years, some of those same people have claimed heavy metals such as molybdenum and lead also have taken their toll.

Arthritis, brittle bones, developmental disabilities and worn-down teeth - as well as lung cancer deaths among non-smokers - have been blamed on air, land and water allegedly fouled by the uranium mill.

Last year, a jury awarded $16 million - a figure that is now more than $43.5 million with interest - to a group of Cañon City residents who claimed their families’ lives were destroyed by Cotter pollution. The list of ailments blamed on the mill is lengthy, and both a doctor and a scientist agreed with the jury’s determination that the injuries stemmed from the mill.

Prior to what is now known as the Dodge case, Cotter had been held responsible by the courts for polluting the land, water and air, but not for physical injuries suffered by those who lived near the 52-year-old uranium-processing mill.

As part of the Dodge suit - currently being appealed by Cotter - a doctor and a biochemist hired by the plaintiffs’ lawyers said there was little doubt about the connection between Cotter and health problems.

Molybdenum has been among the chief culprits, they said.

"I have discovered that here are at least 23 plaintiffs with chronic pains throughout their body and at least four who have been diagnosed with gout," University of California biochemist Martyn T. Smith said in a report referring to some of the more than 500 people who have sued Cotter.

"Complaints of these plaintiffs are remarkably consistent and the symptoms described are extremely similar to those observed in people with molybdenum poisoning," he said.

While some of arthritis/gout sufferers were middle-aged or older, some were not.

"The fact that aches and pains are being produced in relatively young people and whole families living in Lincoln Park is highly indicative of a case of environmental heavy-metal poisoning," Smith wrote.

The Dodge family - former owners of the Ponderosa look-alike Dal DeWeese property on Elm Avenue - is perhaps the best example of that argument.

Joseph and Thelma Jean Dodge, who bought the property in 1972 and raised four children there, have seen those symptoms in all their children. The family raised most of its own food - including produce, meat, milk and eggs - on their land.

Joe Dodge watched his wife die of leukemia in 1992. Jean Dodge also was diagnosed with gout prior to her death, and her retired husband limps on legs marred by bony growths attributed to metal poisoning.

During a 1993 interview with plaintiff doctor Edward P. Radford, Dodge reported breaking ribs on three occasions. Dodge said he broke the ribs during routine activity - once while leaning against a window sill. Radford’s report was entered into evidence in the lawsuit.

Dodge daughters Desiree Chrysler, Yvonne Pegararo and Rhonda Butson also reported arthritis and gout symptoms. So did their son, Patrick Shane Dodge. Desiree Chrysler also reported that her teeth were "wearing down" and that her tooth enamel was chipping off.

Her husband, Dan Chrysler, reported similar symptoms, and their children reported an abnormal number of cavities.

"There is evidence, therefore, that in addition to the abnormal bone growth in these families, calcification of bones and teeth is impaired and leads to greater fragility of calcified structures, resulting in a much greater sensitivity to bone fractures or broken teeth," Radford wrote. "In view of the well-known effects of molybdenum on the process of calcification, these problems are highly likely to be caused by exposures to molybdenum from effluents from Cotter operations."

Radford also questioned the high number of Lincoln Park children with learning disabilities and/or behavior problems. He noted that in one school year, 16 Lincoln Park children were placed in special programs, while the area north of the river - with four times the population of the south side - had 34 such students.

"This is an important matter, because it is now known that in the atomic bomb survivors, even low doses of radiation to fetuses, especially during the first trimester of pregnancy, can interfere with normal development of the nervous system, leading to cognitive and behavioral abnormalities after birth," Radford wrote in his report.

The federal civil jury hearing the case awarded Joseph Dodge $1.5 million, and his adult children won similar judgments. The highest award, however, went to the family of 29-year-old Brett Luna, who was born in 1973 with a severe cleft lip and palate and learning disabilities. After winning a $2.9 million judgment, Donald Luna said the money will be used to care for his son, who will never be able to care for himself.

"We won’t be around forever," said Donald Luna, whose sister also had a child born with some of the same problems as his son. The Lunas now live in Denver but lived in south Cañon City when their children were conceived and born.

According to Joe Dodge, his family lived what it thought was an idyllic, self-sustaining life until the pollution took its toll.

"We grew most of our own food. We had cattle, sheep, pigs, chickens, and they ate the grass coming out of that ground," he said. "Sometimes my kids would drink 3 gallons of milk a day."

But then the animals started dying.

"We had 18 horses, and eight of them got cancer," he said. "I’d never seen a horse get cancer."

Tests performed on the Dodge’s soil, water and home finally shed some light on the mystery.

"All the places we grew food tested really hot," he said. "Even the area where the wild asparagus grew along the ditch."

Tests on the attic of the home turned up 1,600 parts per million of Pb-210, a radioactive lead isotope, according to Dodge.

"If it’s above 400 parts per million, you are supposed to tear down the structure and get rid of it. We raised our family there."

In 1992, Thelma Jean Dodge felt ill, and Joe took her to a Salida doctor, who immediately checked her into a hospital with leukemia.

"I took her straight to St. Mary Corwin in Pueblo without stopping at home," Dodge said. "She died there 44 days later without ever going home. She had a form of leukemia that is caused by radiation."

Dodge said his grown children have never gotten over their mother’s death.

"She was an extraordinary woman," he said. "Cotter destroyed my family."

Dodge said damage from the radiation caused permanent genetic changes that may doom future generations of his family.

"Almost all my grandchildren have birth defects," he said.

Radford’s report also attributed the death of Dorothy Platt, a plaintiff who died of lung cancer in 1993 before the case went to trial, to airborne carcinogens.

"Mrs. Platt had never smoked, and thus it was very unlikely for her to develop a bronchial cancer in the absence of exposure to airborne carcinogens such as those discharged by Cotter Corp.," he wrote. "Not only has she been exposed to airborne radioactive dusts, including uranium, thorium and other radioactive elements, but there had also been exposure to arsenic and nickel compounds, which are known to contribute to increased risk of bronchial cancer."

Smith, the University of California biochemist, agreed that it was "more probable than not that Mrs. Platt’s lung cancer was caused by the inhalation of contaminants originating from the Cotter site."

Lynn Boughton, the former chief chemist at Cotter who eventually sued the company and who later died of what the coroner officially ruled radiation-caused cancer, also grew vegetables at his Cedar Avenue home. Scientists who tested the home and land found metal and radiation levels high enough to warn the Boughtons to sell their cattle and quit using the land for agriculture.

Deyon Boughton, Lynn’s widow, said molybdenum was found in the turnips growing in their garden.

"Cotter later accused us of injecting the turnips with molybdenum," she said. "I don’t know how you would do that."

Cotter has steadfastly denied injuring anyone in its 52-year history. Company President Richard Cherry said in a recent interview, "The fact is, there is no contamination," and he called stories of mill pollution "another part of ancient history."

Cotter Executive Vice President Rich Ziegler, who has been with the company for three decades, said there should be no fear on the part of neighbors.

"I have developers calling me every year wanting to buy property from us," he said.

Dominic Moschetti - Little is known about the suit filed by Lincoin Park resident Dominic Moschetti in the 1970s. It is believed to be the first civil suit against the company. Court records could not be found, but references to the suit are contained in other suits. The suIt, filed after Moschetti's cattle were allegedly poisoned by molybdenum resulted in a confidentiaI settlement.

A memo written by former Cotter mill manager Myles Fixman indicates the company paid to have the Moschetti property hooked up to city water as part of that settlement. Moschetti's widow, Wanda Moschetti, declined to answer questions regarding the suit.

Colorado v. Cotter (1983) - The State of Colorado sued Cotter for polluting natural resources in 1983. The suit was filed in December of that year - six months after the state completed the sale of the mill site to the Cotter Corporation, which had leased the 640-acre property since 1958. It was also filed three months after the Environmental Protection Agency listed the area on its National Priorities, or Superfund, list.

The suit was settled in 1988 when Caner agreed to pay $4 million in penalties and $11 million for an ongoing cleanup and monitoring program that continues today.

Boughton, et, al. v. Cotter (1989) - A group of 550 Lincoln Pard-area residents filed a $550 million suit against Cotter in 1989, claiming the mill had contaminated their land and wells. A federal judge denied class-action status for the case, which was then tried in two pieces. In 1994, the claims of eight "bellwether plaintiffs" went to trial. Ajury awarded nothing to three of them and five of them were awarded a total of $141,122, which jumped to $220,722 with pre-trial interest.

The remainder of those claims did not go to trial. The rest of the so-called Boughtdn defendants settled with Cotter for an undisclosed amount in 1996. While the settlement was confidential, it is believed to have included medical monitoring for some of the plaintiffs.

Dodge, et. al. v. Cotter (1991) - The so-called Dodge case, which included 16 plaintiffs, was the first to claim personal injury as a result of pollution from Cotter. A federal jury awarded the plaintiffs a total of $5 million in a 1998 trial, but the U.S. 10th Circuit Court of Appeals overturned the verdict, ruling that U.S. District Judge Zita Weinshienk erred in deciding what

the jury could consider. The case was retried in 2001 and the plaintiffs were awarded a total of $16 million. That figure jumped to $43.5 million with pre-trial interest. Cotter has appealed the second verdict, but had to bond the $43.5 million to do so. The appeals court is expect-ed to rule on the appeal in mid-to-late 2003.

Boughton worker's compensation case - Lynn Boughton, who worked as a chemist at Cotter from 1958 to 1979, later applied for worker's compensation benefits based on the cancer he claimed was the result of exposure at Cotter. The case ended up before an administrative law judge, who in 2000 awarded Boughton just under $500,000. The ruling came after lab reports indicated Boughton's body contained 700 times the amount of background radiation normally found in humans. Boughton died of cancer in 2001. His widow, Deyon Boughton, said costs took about $67,000 of the award.