Did Colorado share blame?
The Daily Record News Group
- In late 1983, the State of Colorado sued the Cotter Corporation
for $50 million, claiming the company's Cañon City uranium
mill had polluted the land, air and water surrounding the mill site
just south of the city.
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.
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.
suit, which was settled in 1987 and finalized in 1988, was filed
only months after federal officials determined that Lincoln Park
was among the most polluted areas in the country and placed it on
the National Priority, or Superfund, list.
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 of Health and Environment --
the agency that regulates radioactive practices at Cotter.
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.
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.
did not go quietly in accepting the Superfund listing that would
open it up to possible lawsuits. Three months after the issuance
of the report, the company went to federal court to block the designation.
After a federal judge refused to issue an injunction prohibiting
the EPA from placing the area on the Superfund list, Cotter appealed
that decision to the 10th Circuit Court of Appeals. The appeals
court also refused to block the listing and in September 1983 the
EPA formally added the area to its National Priorities List.
early 1984, Cotter took its case to a federal district court in
Washington, D.C., the home of the EPA, but again failed to block
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
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.
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.
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.
mill is located on lands which were owned by the state during the
period 1957-1983," 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."
letter also put the health department on the hot seat.
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."
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.
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.
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 piles and contaminated soil at 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 leading to Lincoln
Park and carrying high levels of radiation.
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 levels).
This groundwater emerges in springs and seeps in lower Sand Creek,
which flows to the Arkansas River, and in other springs near the
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 materials - molybdenum, cobalt, nickel,
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.
study also found that sediment in the Arkansas River contained molybdenum,
cobalt, nickel, copper, arsenic, cadmium, lead and zinc "identified
with the Cotter site."
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.
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 levels 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
later Cotter employee Louis DiOrio, in a sworn deposition, would
testify that he saw workers cutting holes up to 18 inches long in
the Hypalon 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 repaired."
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.
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 cleanup. In a letter to the health
department, the EPA said it had "serious concerns about the
Remedial Action Plan and the Consent (settlement) Decree."
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 environmental 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."
responded by saying, "The EPA reviewers are obviously confused
and uninformed about essential site characteristics."
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.
Jacobi, who heads the radiation division at the Colorado Department
of Public Health and Environment and who participated in state oversight
of Cotter at the time of the court case, defended the settlement
in a recent interview.
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.
a very strong settlement."
in April 1988, gave final approval to the settlement, but the debate
and the lawsuits were just beginning.