DENVER - Since it began regulating the state's radioactive materials
industry 34 years ago, the Colorado Department of Public Health
and Environment had never suspended the Cotter Corp.'s license to
process radioactive materials.
When the CDPHE suspended Cotter's license in July, it did so in
what it called "the interest of worker safety."
The safety of the mill's workers, however, is nothing new. It has
been an issue at Cotter for decades. And so has the health department's
performance as the public's watchdog over the uranium mill.
That fact is not lost on Douglas Benevento, the new interim executive
director of the CDPHE. He was appointed to the temporary post when
his boss, health department Executive Director Jane Norton, was
tapped to be Gov. Bill Owens' running mate during the fall campaigns.
"We need to rebuild the public perception of this department,"
he said. "I don't think we've done a good job communicating with
Other governmental agencies have, over the past 25 years, claimed
the department has also done a poor job regulating Cotter.
When the state allowed Cotter to build its new mill in the late
1970s, it did so in spite of opposition by both the Environmental
Protection Agency and the Nuclear Regulatory Commission.
In 1979, the NRC said the mill location "would probably not be
authorized for a new uranium mill site due to its proximity to the
town." The NRC added that the mitigating measures proposed by Cotter
"can be sufficient to minimize harmful effects, on both the environment
and the population surrounding the site."
A later report based on an NRC review of the health department's
files, however, said the documents "do not lead to the conclusion
that (state) controls are adequate for this site" and said that
in spite of a 20-page set of suggestions by the EPA, the health
department's own files "do not reflect the vigilance urged by the
In a 1981 report commissioned by the EPA after workers inquired
about potential health risks at the mill, the private consulting
firm Fred Hart and Associates ripped both Cotter and the health
Noting that the EPA had urged state officials to "carefully weigh"
the decision to allow the new mill to be built at the Cotter site,
the EPA also criticized the department's decision to allow Cotter
to begin construction on the mill before deciding whether to issue
the mill a new license.
One EPA scientist wrote a memo stating that granting approval
to build would create "tremendous pressure to license even if there
are strong reservations about continuing to use the present site."
The Hart report said the health department's water-quality enforcement
"has not always been effective" and said questions about the mill's
environment and health "have remained unresolved through the years,
in spite of requirements as license conditions that they be resolved."
Therefore, the report said, "it is unlikely that the (health department)
can assure their resolution."
The report also criticized the state's licensing procedure, saying,
"Cotter has been responsible for providing virtually all the data
and most of the studies on which licensing decisions are made."
It also suggested that another state agency be employed to assist
the department in overseeing Cotter.
State health officials inherited regulation of nuclear facilities
in 1968, but they also inherited a history of violations.
According to the EPA's Office of Solid Waste, the Atomic Energy
Commission - now the NRC - cited Cotter 18 times between 1959 and
1966 for "failing to track radioactive releases." Those violations
included "exceedances" of particulate emission standards, discharge
and release from tailings pipes and poor record keeping regarding
off-site surface-water contamination.
State health officials cited Cotter 82 times between 1968 and 1984.
The agency also cited the company for 26 violations between 1991
and 2000, with 15 of those in 2000 alone. Violations in other years
were not available.
When the health department granted the new Cotter mill's license
in 1979 - against the advice of the EPA and the NRC and during a
criminal probe of allegedly fraudulent air-monitoring results -
the director of the department's radiation division admitted his
"The enforcement could have been stricter," director Al Hazle said
at the time. "We have done our best to tighten it up."
More than two decades later, however, Cotter is still solely responsible
for much of the information upon which the health department makes
As part of the settlement of a 1983 suit brought by the state,
Cotter is required to monitor uranium and molybdenum in about 40
wells in the Lincoln Park area. Results of those tests are submitted
annually without audit.
When asked if the department checks Cotter's figures, current
radiation division chief Jake Jacobi said, "Not routinely, but sometimes
we split (share) samples with them."
At least two Lincoln Park residents argue that the department does
virtually no checking on the Cotter reports. Sharyn Cunningham,
who lives on Grand Avenue and whose two wells have been tested since
1991, was shocked to find test results from 2001.
"They didn't test my well in 2001, but the report is right there,"
she said. When she reported the situation to state officials this
year, a CDPHE employee tested the wells and one them indicated the
presence of molybdenum, which had not previously been detected.
"They tell me the pollution plume is shrinking," she said. "Then
why are my wells getting worse?"
Cunningham said the incident came after a health department employee
said she had no reason for concern because no wells were being used
for drinking water in Lincoln Park.
"I told him we were drinking it and he was shocked," she said.
Deyon Boughton, who lives on Cedar Avenue, said she found a well-water
report from a time period when the well was "bone dry."
"We dropped a tool on a string down to the bottom and it came back
dry," she said. "I'd like to know where they found water to test."
Benevento said he was unaware of such allegations, but vowed to
investigate the complaints.
"If the allegations are true that they are faking results, that
would be a criminal offense," he said. "We would refer a report
to the attorney general."
The relationship between Cotter and the health department has been
further muddied by movement of employees between the state and Cotter.
Patrick Teegarden, a lawyer with Patton Boggs LLP - the firm that
has represented Cotter for over a decade - left private practice
to become the health department's policy director in February 1995.
In June 2001, he left that job and returned to Patton Boggs. Earlier
this year, Teegarden represented Cotter during legislative debate
on House Bill 1408, the radioactive-waste measure passed by the
Another Patton Boggs lawyer, Carolyn McIntosh, served as an assistant
attorney general from 1986 to 1988. During that period, the state
was suing Cotter for polluting natural resources. According to a
biography on the Patton Boggs Web site, McIntosh, while working
for the state, litigated cases "establishing the applicability of
state hazardous-waste management laws to the Rocky Mountain Arsenal,
Atomic Energy Act standards for employee exposure to radioactive
releases and remediation at radioactive mill processing facilities."
McIntosh, a former Lafayette mayor, also represented Cotter during
legislative hearings this past spring.
According to Benevento, there is little the state can do about
former employees going to work for those they once helped regulate
"There are certain ethical procedures that need to be followed
when you leave the state," he said. "A person is not supposed to
go to work for an entity they regulated for a year, but other than
that, we can't tell our former employees what to do."
In spite of the health department's past history, Benevento is
quick to say his department will vigorously enforce its regulations
"We're taking the concerns of the community and the violations
very seriously," he said in a recent interview. "There have been
times (Cotter) has been difficult to work with. I hope they take
a good look internally."
Benevento said the environmental assessment filed by Cotter in
connection with its plan to bring in radioactive waste for storage
will also face tight scrutiny.
"The environmental assessment is with me," he said. "But I have
a lot of questions."
On Sept. 13, the department partially lifted the general suspension
on Cotter's license - a move that will allow the mill to process
some materials while demonstrating it has implemented and is following
the worker-safety procedures demanded by the state.
But questions about the state's ability to regulate Cotter are
not likely to go away.