History of violations
The Daily Record News Group
CITY - Since a criminal investigation into allegedly falsified records
was launched in 1979, the Cotter Corporation's regulatory record
has been marked by a steady stream of violations that appear to
have changed little in 22 years.
the 1979-80 investigation produced no criminal charges because of
the statute of limitations, the allegations contained in that investigative
report are strikingly similar to those that resulted in the uranium
mill's license suspension this year.
both the 1980 report and the current violations point a finger at
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 noted Cotter's record of repeated
violations beginning its first year of operation.
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."
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 investigate possible criminal wrongdoing at
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 the 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
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
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 taken, 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.
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.
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.
Hayhurst, the lab employee in charge of air samples at the time
of the CBI report, backed up Boughton's story and told LaCabe he
once told a health department inspector 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 washdown.
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
dust-creating activities such as ore-crushing was not done during
inspections and that on occasion crushers were purposely scheduled
for maintenance so they would not be operating during the inspections.
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
to the report, La Cabe also had trouble interviewing fearful current
and past employees.
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
needn't have worried about the mill's license.
spite of an agreement with the CBI not to make a decision on the
new license until the criminal probe was finished, health department
chief Frank Traylor, whose department was criticized in the report,
signed the new license in August of 1979 - months before the investigation
was completed. Traylor told reporters he issued the license after
agreeing to wait until the investigation was finished because the
probe was taking so long.
asked if his department adequately protected the public health during
its regulation of Cotter, he replied, " I honestly don't know,"
adding that he felt the health of the workers may have been affected
by unreported or uncorrected overexposures.
the report was completed, both CBI Chief Carl Whiteside and then-Fremont
County District Attorney John Anderson said there were no prosecutable
offenses uncovered. Whiteside said the alleged violations were all
beyond the 18-month statute of limitations on prosecuting them and
Anderson, now a district judge who will retire this year, at the
time said, "There are no available prosecutions."
violations, however, continued.
a deposition taken during one of the civil lawsuits against Cotter,
former health department radiation division head Albert Hazle detailed
some of those violations, also called items of non-compliance. He
said that in October of 1980 the mill was cited for 13 violations
involving safety records, testing and documentation.
were quite extreme," he said, "many of them extremely
important." During that same testimony, Hazle said that while
the mill's license at that time had never been suspended, "it
was threatened at one time." He did not say when that was.
Mine Safety Health Administration has also had problems with Cotter.
In January of 1980, MSHA cited Cotter for exceeding employee exposure
standards in the new mill's vanadium section, but handed down no
punishment. At that time MSHA representative Jack Petty said the
agency would "check back to see if they are handling the situation
week later four Cotter workers were hospitalized with what was termed
"vanadium poisoning" and a total of 20 were treated for
the ailment - marked by symptoms that included "green tongue,"
breathing difficulty and gastro-intestinal distress.
the 1990s, Cotter continued to be cited for license violations similar
to those uncovered years before.
obtained from the health department, now known as the Colorado Department
of Public Health and Environment, shows Cotter was cited in 1991
for tardy quarterly reports, an incomplete annual report, missing
air samples, failure to check contamination sources, groundwater
contamination and deviating from radiation-survey procedures. In
1992 the CDPHE cited the mill for exceeding groundwater standards
and submitting an incomplete annual report and in 1996 cited it
for not filing a quarterly report.
inspection in 2000 produced what was at that time a record number
of 15 non-compliance citations. Those included several violations
pertaining to employee exposure to radiation, including overexposure,
a failure to conduct employee exposure tests, failure to correct
situations that caused overexposure and failure to document individual
worker-exposure figures. That same inspection also cited Cotter
for failing to correct "repeat" situations, including
equipment maintenance, housekeeping and storage of respiratory equipment.
The mill was also cited for failing to post a radiation-storage
building as a radiation area, shipping uranium oxide without posting
radioactive placards and failing to register an X-ray machine.
year produced a record 16 violations, which resulted in the first-ever
suspension of Cotter's license. Familiar items were cited.
latest inspection report, much like the 1980 investigative report,
alleged "serious and substantial breakdown in the management
oversight of this facility."
report pointed out "conflicts" between worker-activity
logs involving the use of respiratory equipment and the company's
"dose calculation sheets" and a failure to account for
the measured levels of radioactive material in the air when assessing
worker dosages. Those were all listed as repeat violations.
has failed to implement a bioassay program sufficient to demonstrate
compliance with the 10mg weekly soluble uranium intake limit for
workers," the report stated. "The majority of workers
are providing urine samples at two-week frequencies and there are
numerous instances where individuals exceeded the minimum monthly
bioassay sampling frequency."
was also accused of failing to determine or document the radiation
dose to a fetus being carried by a pregnant worker. The report said
Cotter "assumed the (effects) from radioactive materials in
the woman's body to be negligible" but provided no data to
support that claim. It was also cited for allowing a United Parcel
Service employee to freely wander around restricted areas of the
mill and for questionable safety-training issues.
executive vice president Rich Ziegler said the UPS driver's access
to the mill was merely the result of old habits. "Those guys
have been doing that forever. It's been going on for umpteen years
but will obviously stop."
said the newest violations and the resulting suspension are the
result of differences regarding documentation.
are telling us, 'Your paperwork is not up to what we expect,' "
he said. "It's like an IRS audit - they tell you, 'We need
documentation to determine if you have to pay more.' "
said he remembers little about the report he prepared 22 years ago.
He said he was not frustrated by the fact that his investigation
produced no criminal charges and always felt the probe might produce
civil suits. Which it has.