The lights dimmed, and there on the screen at the front of the room was a sight as obscene as anything that's ever hit Judge John Kane's court: the towering incinerator of Building 771 at the Rocky Flats Nuclear Weapons Plant. Glowing.
To FBI agent Jon Lipsky, who'd been investigating the possibility of environmental crimes at the plant for more than a year, the infrared video captured on a secret overflight shortly after 10:30 p.m. on December 15, 1988, "indicated that the 771 incinerator was thermally active and was probably being operated that night."
Which was contrary to public statements by both the Department of Energy and Rockwell International, whose plant manager had announced just two months earlier that the incinerator would be shut down and Building 771 closed off because of potential safety problems.
Obscenity: You know it when you see it. And the twelve jurors considering the $500 million class-action case filed by Rocky Flats neighbors against Rockwell and Dow Chemical -- which really means the federal government, which had indemnified the two companies when it contracted with them to run the plant and has since paid out tens of millions of dollars in legal fees to defend them -- got a glowing example Tuesday morning as Lipsky narrated the film shot almost seventeen years earlier.
The tower and the roof of 771 weren't the only areas showing evidence of thermal activity, he testified. The 207B evaporation ponds, where wastes were stored in hopes that some would simply disappear, gave off an eerie glow, as did the sewage plant. There were streaks of light leading from the sprayfields, where contaminated waste was sprayed even in the winter, when the ground was too frozen to absorb it. (At 10 p.m. that December 15, the temperature was just 7 degrees Fahrenheit; Lipsky called the weather service to find out for sure.) And thin white lines indicating thermal activity led even "past plant boundaries," he explained, across Indiana Street and toward the Great Western Reservoir, where Broomfield got its water.
That video was just one piece of evidence that Lipsky used to draft a 116-page affidavit, an affidavit for a search warrant that allowed him to lead dozens of other FBI and EPA agents in a dawn raid on Rocky Flats on June 6, 1989.
Two weeks ago, Kaiser-Hill, the company that oversaw the $7 billion cleanup of Rocky Flats, declared that its work was done ("Truth Decay," October 13). The 771 incinerator stack is long gone. So is Building 771, once billed as the most contaminated structure in America. Much of the debris from the plant has been shipped off to waste-storage facilities; some has been buried deep beneath the ground. The top six inches of dirt have been designated clean. And 2,600 pounds of plutonium are still unaccounted for.
The DOE has ninety days to approve Kaiser-Hill's work; after that, much of the 6,500-acre site will be turned over to the U.S. Department of Fish and Wildlife, which will run it as a wildlife refuge.
But two hours after Lipsky narrated his silent movie, there was little sign of life -- wild or otherwise -- along the strip that the infrared camera had captured. To the west, the scoured hills of the former plutonium-trigger bomb factory were protected by barbed wire and No Trespassing notices. Across Indiana Street from the old pullout that once led to the plant, Standley Lake -- directly downhill -- glittered in the sun. Sixteen miles away -- sixteen downwind miles away -- Denver stretched out along the horizon.
According to Adopt-a-Highway signs, this particular piece of road is "available."
Back in Kane's courtroom, Lipsky's testimony goes on. And on, despite frequent objections from the defense. Now retired from the FBI and running his own private-investigations company in California, Lipsky has waited almost two decades to tell how he came to Denver as a young agent in 1984, was almost immediately named liaison to the EPA, and quickly set out to create an environmental-crimes section. "The EPA was relatively new; laws were just as new," he remembered. Still, he'd managed to put together thirteen cases by the summer of 1987, when he found his fourteenth -- Operation Desert Glow, they called it -- through an internal DOE memo drafted a year before, right after the agency made a much-publicized agreement with the Colorado Department of Health and the EPA regarding more monitoring at Rocky Flats.
"Much of the good press we have gotten from the agreement in principle has taken attention away from just how bad the site is," read the DOE memo, which admitted to "serious contamination" and the fact that "our permit applications are grossly deficient (some of the waste facilities are potentially 'illegal')." During his investigation, Lipsky looked through thirteen volumes of a 1987 audit on Rocky Flats waste streams, "and at no time did I ever see a permit for the incinerator to treat/store" the waste streams destined for the 771 incinerator, he testified.
Over the years, Rockwell and the DOE have repeatedly denied that the 771 incinerator ever operated illegally. But every picture tells a story. And the ones in Judge Kane's courtroom have a particularly dirty tale to tell.
When he was working as an engineer at Rocky Flats in the late '80s, "I caught the manager of engineering chewing this young engineer out," Jim Stone remembers. So Stone, who had already complained about unsafe practices at the plant, gave his manager the finger, and soon he was told to get out -- and take his files with him. Bad idea. Those files not only supplied much of the documentation behind the raid on Rocky Flats on June 6, 1989 -- it was Stone who recommended the FBI do overflights using infrared -- but for his own whistleblower lawsuit, which went to trial just weeks after the raid. For the first time.
Like plutonium itself, lawsuits about Rocky Flats seem to go on forever. Ten years passed before a jury got to deliberate Stone's case. But he has yet to see justice, as he wrote this week:
In the public eye today is the ongoing trial concerning Rocky Flats contamination. It brings to mind the trial in 1999 of my claims on behalf of the government against Rockwell International for defrauding the government about compliance with laws governing hazardous waste, health and safety matters. We won a jury verdict against Rockwell. In the public eye, the matter had reached a just conclusion. What the public did not know and what I fear the plaintiffs in the current Rocky Flats case may not realize is that once you win at trial, the matter is far from over.
Today, some six and a half years later, Rockwell has not paid a penny on the judgment we won in 1999. How could this happen in our nation of laws? We have beaten Rockwell at every stage, yet they do not pay.
I began my battle over twenty years ago. At each stage, we were successful. First we convinced government law enforcement about the misdeeds at Rocky Flats. In 1989, the FBI and EPA took action and raided Rocky Flats. Rockwell pleaded guilty to felony counts. We also convinced members of Congress and the Department of Energy. Rockwell was fired as the contractor. (Rockwell called it a "mutual agreement" to quit one year into its new five-year contract.) Then in 1999, we went to trial and convinced the jury that returned the verdict against Rockwell under the federal False Claim Act. Rockwell appealed that verdict, and we convinced the federal appeals court that upheld our verdict in 2002. Rockwell asked the appeals court to rehear the matter in early 2004, and we won again when the court said 'no.' So then it was time for Rockwell to pay, right? Wrong.
In early 2004, Rockwell filed a second request for a rehearing. Our lawyers responded promptly, and we all thought this second request would be ruled on soon thereafter by the appeals court. Right? Wrong. Today, more than one and a half years after receiving all the papers, the federal appeals court has not issued any ruling on that last item. So we just wait.
With Rockwell, I understand why they have delayed. They were caught with their hands in the till and don't want to pay it back. What I cannot understand is why the federal appeals court would delay now. I really want to know why. When such a long case comes down to a relatively small matter needed to bring it to a conclusion, why would not that matter be taken care of in short order? I thought it would, but what do I know about the appeals court? Maybe someone can educate me.
The claimed "clean up" at Rocky Flats has not taken as long as my case.
The "moral of the story," and my advice for the plaintiffs in the current Rocky Flats trial, is that they still have a long way to go, and the only thing they can count on is delay upon delay.
The half-life of plutonium is more than 24,000 years. Now eighty, Jim Stone can't wait that long.
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