Full Body Burden

by Kristen Iversen

  “Sure,” the friend replies. “You’ve been summoned to serve on a grand jury.”

  Wes isn’t sure what that means or what it involves. But he makes the long trip to Denver, where he learns that he’s been called to serve on Colorado Special Grand Jury 89-2, a federal jury specifically empaneled to determine whether there is enough evidence to go forward with a trial against the operators of Rocky Flats. As with any other grand jury, all of the proceedings will be kept secret. The names of all those summoned for jury duty are put in a drum and then drawn out one by one. Wes thinks to himself that when his name is called, he’ll ask to be excused. He has a ranch to run, a ranch that’s at the tail end of the state, over three hundred miles away.

  But he’s intrigued. He’s never even heard of Rocky Flats. How could all this be going on, and he’s never even heard of it? When they call his name, he decides to say yes. He looks around the room. The other jurors include a bus driver, a hairstylist, a swim coach, a letter carrier, a repairman, a lawyer, and a retired police officer.

  On August 1, 1989, the case begins, and after another juror resigns, Wes McKinley is named foreman for Special Grand Jury 89-2. He has no idea how complex and time-consuming—and even dangerous—the case will become. U.S. district judge Sherman G. Finesilver takes a full hour to read the jury their instructions. “It is every person’s duty to conform his acts to the laws enacted by Congress,” he says. “All are equal under the law, and no one is above the law.… [I]f the members of a grand jury after deliberation believe that an indictment is warranted, then you will request the United States attorney to prepare a formal written indictment.”

  For the next two and a half years, the jurors meet in Denver one week out of every month to hear testimony from one hundred witnesses and sift through 760 boxes of evidence.

  Wes leaves his old pickup at home and takes the bus to Denver each month. Some jurors don’t last and have to be replaced. Wes is always there, and always on time. “Attorneys must study how to be late,” he jokes. They’re supposed to start at 9:00 a.m., and things don’t seem to get going until 9:15. Wes is a rancher. He’d start things at 6:00 a.m. if he could. It’s just starting to dawn on him how important this case really is.

  The first person to testify is FBI agent Jon Lipsky. He describes the raid, then focuses on the illegal operation of the incinerator that burns radioactive waste.

  Jim Stone is eager to take the stand. Stone talks about the pondcrete, the incinerator, and the spray fields. He talks about the plutonium in the air duct pipes and how there is enough “lost” radioactive material in those pipe ducts to make several bombs. There’s so much sandy material in the pipes, he says, that it looks like a windblown desert.

  Dr. Edward Martell testifies, and later repeats his words to the press. “It takes minuscule amounts of plutonium to cause cancer or promote cancer. We know there is an awful lot of plutonium out there. The soil-borne contamination has been progressively redistributed by wind in the direction of the heart of Denver. Plutonium-induced cancers in people may take twenty or thirty years to develop. In effect, everybody living within eight or ten miles east and southeast of Rocky Flats may be guinea pigs.”

  John Cobb, a professor of preventive medicine at the University of Colorado Medical School, presents to the jury the data from his EPA-sponsored study of plutonium in tissue from autopsies of people who lived around Rocky Flats. He discusses the leaking barrels and the radioactive contamination that has seeped into the soil and water, and escaped into the air.

  One fact that emerges in the testimony is how Rockwell manager Dominic Sanchini responded to pondcrete problems. When DOE inspector Joseph Krupar warned Sanchini that the pondcrete blocks were splitting and leaking, Sanchini “defined his access” at the plant and surrounded the blocks with a barbed-wire fence and a sign that read UNAUTHORIZED PERSONNEL KEEP OUT.

  Approximately fifty Rockwell employees receive grand-jury subpoenas and they negotiate immunity agreements with the prosecutors. The first Rockwell employee to testify before the grand jury—right after Jon Lipsky—is Jacque Brever. She talks in detail about her work and the near-constant operation of the incinerator. Work she has done herself.

  Employees at Rocky Flats are well aware that Brever is going to testify. Her co-workers are already talking about how she’s going to shut down the plant and make them all lose their jobs. Officials send out a plant-wide memo announcing the day that grand jury testimony will begin. Shortly before the court date, Brever discovers that someone has poked a hole in one of the lead-lined gloves she wears when she puts her hands into the glove box. She’s exposed to plutonium and americium. Several workers confront her afterwards. “That’s what you get for making waves,” they say.

  She testifies anyway, despite continuing threats at work and at home. Another employee, a manager named Ron Avery, also testifies that he operated the 771 incinerator when it was supposed to be shut down. Still, the threats continue. Brever tries to keep her job at Rocky Flats and reluctantly resigns in April 1991. With co-worker Karen Pitts, who has had a similar experience, Jacque files a lawsuit saying she was threatened, harassed, and forced out of her job after talking to the FBI about problems at Rocky Flats. The case is dismissed when the judge decides it is “not detailed enough” to continue.

  Shortly thereafter, Jacque and her daughter go into hiding. She is diagnosed with thyroid cancer, one of the more treatable types of cancer, and reactive airway disease. Years later she returns to Colorado to pursue a master’s degree in environmental policy and management. “The best thing I can do,” she tells an interviewer, “is what my conscience tells me to do while I’m here. I’m not afraid of dying, but at least I can do something to clean up the mess we made. I’m really ashamed that we’re leaving this mess for people like my daughter and her generation.”

  TESTIMONY BEFORE the grand jury continues. The 771 incinerator charge is fiercely contested by Rockwell and DOE general counsels. Yes, they admit, they’ve been storing and burning hazardous waste in the incinerator for years without a permit. But is it a type of waste that is subject to RCRA and EPA jurisdiction? Rockwell argues that emerging environmental law is filled with ambiguity, and that the Atomic Energy Act exempts nuclear weapons facilities from laws such as RCRA and Superfund.

  Other charges are more difficult to defend. Waste in a series of holding ponds continued to contaminate groundwater even after regulators had closed the ponds. The “spray irrigation” was done to reduce levels of waste and to allegedly avoid the scrutiny of regulatory agencies and the public.

  But is it fair to single out Rocky Flats? Plenty of other DOE facilities, including Hanford in Washington State, Oak Ridge in Tennessee, the Savannah River site, and the Fernald plant in Ohio have severe problems with radioactive and toxic waste and storage. Some are worse than Rocky Flats.

  The issue of “permits” is particularly troublesome. RCRA and Superfund gave the EPA responsibility for regulating hazardous waste “from cradle to grave,” and the EPA has at times issued permits that allowed for some pollution. But the 771 incinerator does not have an EPA permit at all, which is why the Sierra Club was able to sue and get it temporarily shut down in 1989. The year after the shutdown, the Sierra Club scored another victory when the lawsuit was decided in their favor. The ruling directed Rocky Flats to manage plutonium residues as hazardous waste and said the residues were subject to RCRA regulation.

  Jim Stone is right about more than pondcrete. In the fall of 1989, following the raid, an independent study finds that there is, indeed, enough “lost” plutonium in the exhaust ducts at Rocky Flats to create the possibility of an accidental nuclear reaction. The experts who conduct the study estimate that approximately 12 kilograms of plutonium could be caught in the piping. Energy Department officials justify it by saying that the plutonium is not harmful to workers within the buildings, and that filters prevent the plutonium from getting into the air outside the buildings. Nonetheless, the DOE agrees to conduct its ow
n study.

  Six months later, in a meeting with plant officials, Melinda Kassen, a lawyer with the Environmental Defense Fund in Boulder and a member of the Rocky Flats Monitoring Council, asks point-blank if the study promised by the DOE the previous October has been completed.

  Kassen is told that the study is done, but results are being “withheld.”

  Under pressure, the DOE reveals to Kassen the next day that the quantity of plutonium in the air ducts is 28 kilograms, or about 62 pounds—more than twice what they had expected to find, and enough for seven nuclear bombs. Spread over six thousand feet of pipe, the plutonium got stuck in the ducts partly because, as the filters became clogged and automatically closed down operations, frustrated workers punched holes in the filters so that air could pass through the system. Never mind that the air was contaminated with plutonium.

  Leo Duffy, director of Waste Management and Environmental Restoration at the DOE in Washington, defends the government. He notes that the plutonium in the ducts at Rocky Flats is the residue of thirty-eight years of operation and is only a “very small fraction” of the amount of plutonium that has been handled by the facility. Nonetheless, “none of this,” he admits, “is a satisfactory way of running an operation.”

  Meanwhile, in an appearance before a House armed services subcommittee on nuclear weapons production, Energy Secretary James D. Watkins strongly implies that the problems at Rocky Flats could delay the deployment of Trident II ballistic missiles. The weapons production complex needs to get back to full operation. “I can guarantee if we don’t move aggressively,” he says, “there will be severe ramifications.”

  THE GRAND jury investigation drags on. The lives of the jurors are affected in unexpected ways by two years of week-long sessions and absences from work and family. Relationships suffer. The court sessions are long and often involve detailed, dull testimony. One juror serves for nearly eighteen months before she truly grasps what’s at stake. At a restaurant in Brighton, a small town near Denver surrounded by cattle ranches, the waiter brings to the table water that tastes “like cow waste.” “A light bulb came on,” she recalls. “I knew why I was on that grand jury.”

  After twenty-one months of work, on May 18, 1991, the jurors, led by cowboy Wes McKinley, vote to indict Rockwell, five of its employees, and three others working for the DOE. But in a surprising turn of events, U.S. attorney and Department of Justice prosecutor Mike Norton refuses to sign the indictments. Not a single Rockwell or DOE official is indicted, despite the fact that more than four hundred environmental violations occurred for decades.

  Instead, Norton negotiates a plea bargain with Rockwell. In addition to no indictments, dumping and incineration charges are dropped. No individuals will be charged, and the settlement guarantees their immunity. Rockwell agrees to plead guilty to criminal violations of the federal hazardous waste law and the Clean Water Act, admitting to five felonies and five misdemeanors. The criminal conduct includes “possible exposure of workers and local citizens to radioactive and hazardous waste that was sprayed into open pools and even stored in ventilation vents.” Rockwell is required to pay an $18.5 million fine—at that time the second largest in U.S. history for an environmental crime, following the 1989 Exxon Valdez oil spill in Alaska—yet still a smaller amount than what the corporation has collected in bonuses for running Rocky Flats and meeting production quotas for that one year, representing just one-sixth of 1 percent of Rockwell’s yearly sales. Rockwell routinely received millions of dollars in performance bonuses despite the DOE’s own ranking of Rocky Flats as “the most dangerously contaminated site” in the nation’s nuclear weapons complex. Rockwell is also allowed to file for reimbursement of $7.9 million from taxpayers for case-related fees and costs. Contractors hired by the federal government to operate Rocky Flats, or any nuclear weapons facilities, are indemnified from any damages. The more shocking charges—midnight burning of waste in incinerators that were supposed to be shut down, and secret dumping of poisons into waste ponds that were also supposedly closed—are not prosecuted.

  Perhaps most devastating to local communities, however, is that the plea agreement indemnifies Rockwell from any further claims and closes the door on all future prosecution, whether criminal or civil. All court records will remain secret. The agreement stipulates that Jim Stone’s charges cannot be mentioned in the plea agreement, and trial-related documentation regarding past and ongoing contamination will be permanently sealed. The agreement also allows Rockwell to receive future contracts with the government. Judge Finesilver approves the plea bargain and tells the grand jurors that their work is finished and they can all now go home.

  The jurors are stunned. They can’t believe what just happened. They refer again to the instructions of Judge Finesilver: “The federal grand jury … is independent of the United States attorney … it is not an arm of the United States attorney’s office. Please keep in mind, you would perform a disservice if you did not indict where the evidence warranted an indictment.… The government attorneys cannot dominate or command your actions.”

  But they are bound by an oath of secrecy about the case, even after the case is closed. They had two questions: what was done, and who ordered or allowed it? The Justice Department, as a matter of policy, declined to sue its sister agency, the DOE. And Rockwell says that everything it did was at the behest of the DOE, and the company insists that no individuals be charged. It’s not uncommon for the Justice Department to allow corporate officials involved in environmental crimes to avoid individual indictments in exchange for plea bargains and fines. In most cases this is reached before a grand jury can see the evidence of the crime. However, the Rocky Flats case is different. The Rocky Flats grand jury endured almost three years of damning testimony. They can name names. They want indictments, and they want the public to learn the truth of past and ongoing contamination practices at Rocky Flats.

  “We were studying a million pages of documents,” McKinley tells the press. “A million. Memos, internal information, balance sheets, and other information. We had a little disagreement as to whom to indict. If the case had gone as the government planned, we would have indicted various workers at the plant. The people who went out there, earned a day’s wage and followed orders. Those were not the responsible people. [To indict average workers] would have targeted the throwaway people, and things would have gone on as usual. They would have replaced one valve-turner with another. We wanted to get the people responsible so that we could actually enforce environmental laws. These were the people in the DOE and the executives in the higher echelon of Rockwell International who, we felt, actually committed the crimes.”

  Rather than go home, the jurors consider their oath, consult the Constitution, look over the evidence again, and write their own grand jury report—without the help of prosecutors. They ask Judge Finesilver to read it and release it to the public. He refuses.

  On September 25, 1992, Finesilver rules that the grand jury report will remain sealed. Three years earlier, the same judge had ordered the jurors to find the truth. Now he asks them to keep the truth under wraps.

  But somehow, a few days later, much of the report prepared by the grand jurors is leaked to the press, and a detailed account of the grand jury report and its accusations against Rocky Flats—with large sections still missing—is printed in a Denver alternative newspaper. Harper’s magazine publishes excerpts in its December 1992 issue. Finesilver calls for the Justice Department to investigate whether grand jurors have breached their oath of secrecy and should face criminal charges. Publicly revealing secret information from a grand jury can result in high fines and a jail sentence. The DOE wants to discover who leaked the report and prosecute the grand jurors. The jurors become known as “the Rocky Flats 23,” the first grand jury in history to risk personal incarceration for revealing information critical of the Justice Department. Twelve of the jurors write a personal letter to President-elect Bill Clinton, asking him to appoint a special prosecutor to inve
stigate the government’s plea bargain with Rockwell. Foreman Wes McKinley and juror Kenneth Peck, a lawyer in private practice, call the press and read the letter from the steps of the Denver courthouse. There is no response from Clinton. In January, seven of the jurors appear on Dateline NBC to discuss the trial and why they feel it is a miscarriage of justice.

  Both Mike Norton and Ken Fimberg defend their decision not to prosecute corporate or government individuals. Many people were simply carrying out orders, they say. The people who might have been prosecuted, Fimberg tells the press, were basically mid-level people who had not established the policy, but acted consistent with it. Further, they’ve both begun to realize how the whole ballgame involves not just a contaminating weapons plant, but forty years of public policy. “I’m not going to prosecute conduct well known to regulators,” Norton says. There is no question of groundwater contamination and toxic runoff, but health effects in nearby communities are hard to prove. And the DOE’s policy of indemnifying weapons plant contractors means that the Energy Department—thus the taxpayer—will have to pay any fine levied against Rockwell. Only if they settled could they make Rockwell pay its fine.

  The plea bargain with Rockwell puts all of Colorado up in arms. In Washington, an oversight subcommittee of the Committee on Space, Science and Technology, chaired by Representative Howard Wolpe (D-Michigan), issues subpoenas to a number of players in the grand jury investigation, including Fimberg, Norton, and Lipsky, for eight days of private hearings in September 1992. Prosecutors emphasize that they’ve been the first to initiate criminal prosecution of environmental crimes at a DOE plant, but what they found was an “institutional culture unchallenged by Congress or regulatory agencies.” Is it fair to indict and prosecute individuals, Fimberg asks, for acting consistently within that culture? Wolpe responds by asking whether a situation has been created where there is literally no accountability that can be imposed on government agencies. “Are you telling us,” he asks, “[that] the culture of an agency, even if it violates a law that has been passed by Congress, represents a kind of defense? … Isn’t the purpose of law to change behavior?”