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Hazardous Wait

Jim Stone has waited for this day a long time. Thirteen years, if you start counting from back when the engineer was terminated by Rockwell International in March 1986. Close to ten years, if you start from July 1989, when Stone first filed suit against his former employer, charging that he'd been wrongfully discharged because he'd warned about problems with the company's operation of the Rocky Flats Nuclear Weapons Plant--a facility then making plutonium triggers for the nation's nuclear arsenal.

Since Stone filed his lawsuit, there have been half a dozen dates from which you can start counting. A postponement here, a continuance there, another postponement. And then, two years ago, the most unexpected twist of all: The Department of Justice joined Stone in his civil case against Rockwell, the private company that had been running the federal facility since 1975 for the DOJ's sibling, the Department of Energy.

Jim Stone never really thought he'd get his day in court. Waiting for the wheels of justice to turn has been like, well, like waiting for pondcrete to dry. He did plenty of that back when he worked at Rocky Flats, watching as contaminated and radioactive wastes were mixed with concrete into a toxic stew that was supposed to harden into blocks--a slow process that will be described in excruciating detail over the next six weeks as United States of America ex rel. James S. Stone v. Rockwell International unfolds in the courtroom of U.S. District Judge Richard Matsch.

Over the years, the scope of Stone's suit has changed. Some of his most spectacular claims, the ones he took to the FBI back when federal regulators would not listen to his warnings about dangerous conditions at Rocky Flats, back when Rockwell wanted to silence this whistleblower, have been dropped. And Stone, who has never been shy in describing the problems he found at Rocky Flats--dozens of pounds of plutonium in the ductwork, for example, "and they haven't found it all," he told me last April--is now on good behavior in the courtroom, with a DOJ handler nearby, making sure he doesn't say too much.

On Tuesday, during a break between opening arguments, what he had to say was this: "I can't believe this day's finally here."

Others in the courtroom--lawyers, environmentalists and government bureaucrats who will probably never agree on anything again--also seem stunned that Stone's case has gone to trial. That it wasn't settled, or dropped, or lost. Instead, it's shown all the staying power of plutonium.

You can thank Jim Stone for that. In the late Eighties, he shared his concerns about Rocky Flats--as well as a DOE memo indicating that federal officials at the highest level knew Rockwell was violating federal laws--with FBI agent Jon Lipsky, who had training in investigating environmental crimes. It was Stone's tip to Lipsky that triggered the spectacular June 6, 1989, dawn raid on Rocky Flats.

Matsch resurrected the raid when he addressed the jury Tuesday morning. "While Rockwell operated Rocky Flats under contract with the Department of Energy, the United States initiated an investigation to determine whether criminal violations of environmental laws had taken place," he told them. A federal grand jury was later empaneled to examine evidence seized during a raid of the plant; these jurors would be hearing from some of the witnesses who'd testified before the grand jury--Stone himself, perhaps?--as the trial progressed.

In March 1992, Matsch continued, Rockwell had pleaded guilty to ten counts of violating environmental laws. As a result, the company had paid a fine of $18.5 million. The plea agreement that led to that fine would also be placed into evidence. Still, Matsch cautioned the jurors, they were to remember that "the plea agreement did not decide the issues in this case--otherwise, we wouldn't be having a trial."

But in fact, the plea agreement did not decide the issues in that earlier case, either. It just tidied them up for neat disposal, the way the plan to bury pondcrete at the Nevada Test Site was supposed to clean up Rocky Flats. But the pondcrete started leaking--and so did some of the Rocky Flats grand jurors who spent two and a half years considering evidence of environmental crimes there.

Jim Stone is not the only one who's been waiting for justice. Sitting in Matsch's office is another lawsuit in limbo, buried in other cases that stacked up while Matsch was presiding over the Oklahoma City bombing trials. This suit was filed back in August 1996, when nineteen members of the Rocky Flats grand jury sued for the right to tell the truth about what happened behind closed doors during their investigation.

Unlike most juries--Stone's included--that are bound by secrecy only until their work is done, federal grand juries must keep quiet about their deliberations forever unless an unusual exemption is granted. By Bill Clinton, if he'd ever responded to the letter the grand jurors sent him shortly after his election, complaining about the Rockwell plea. By Congress. Or by Judge Richard Matsch, who has the legal means to let the jurors have their say--if they can prove that the government obstructed justice.

What those grand jurors would say is this: After all their work, they wanted to indict eight individuals--five from Rockwell, three from DOE--for environmental crimes at Rocky Flats. But then-U.S. Attorney Mike Norton refused the indictment, and instead, working on behalf of the DOJ, arranged a deal that required Rockwell to plead guilty to ten crimes but charged no individuals, indemnified the company against future legal actions stemming from the investigation, and fined it $18.5 million--a record fine, but no more than Rockwell had earned in bonuses for running the plant. Outraged, the grand jurors wrote a report on their deliberations, as the Constitution allows them to, but a federal judge ordered the report sealed. Only after that did the leaks start and the outline of the story emerge ("Justice Denied," September 30, 1992). But the details have yet to be filled in.

"The grand jurors remain determined to see this case to conclusion," says their attorney, Jonathan Turley. "They understand Judge Matsch has a considerable docket, and they are prepared to press the case as long as it takes."

Which could be quite a while, judging from the pace of the current case. The DOJ attorney opened for both the government and Stone, talking about how Rockwell lied when asked whether the pondcrete was leaching into the environment or whether waste sprayed on fields around Rocky Flats was flowing into Woman Creek toward the towns of Westminster and Broomfield. As a result of Rockwell's lies, its "betrayal" of trust and responsibility, the government was left holding a $150 million bag to clean up the mess.

Then came Rockwell's turn, presented before a large, full-color photo of Rocky Flats and its environs in 1989. The plant is surrounded by green, green fields, and to the west, the mountains shine clear and snow-capped. There is no east, which would show the suburbs just downstream and downwind of the nuclear-weapons plant. There are no people who might drink contaminated water or breathe contaminated air. Instead the picture starts with the road, Central Avenue, that plant employees--from DOE and Rockwell alike--drove along every day, in full view of the piles of crumbling pondcrete. And not only was everything that Rockwell did in full view of the government, but it was done with the DOE's full knowledge. "This is not a case about fraud," Rockwell's attorney said. "It's a case about whether the Department of Energy will accept its role for problems at Rocky Flats instead of trying to act like it had nothing to do with it."

It's a case of feds versus feds, with the people--Jim Stone included--caught in the middle. The Cold War is over, but the truth is still held hostage.

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