Plutonium has a half-life of 24,000 years.
By that count, the sixteen years these plaintiffs had waited for their day in court was just a drop in the leaky bucket. But by Tuesday morning, when opening arguments finally got under way in the class-action suit of about 12,000 property owners against Rockwell International and Dow Chemical, the two companies that operated the Rocky Flats Nuclear Weapons Plant for the federal government from 1952 until 1989, the delay seemed endless.
No one had thought this day would come. Not the lawyers who'd seen postponement after postponement -- earning the Department of Energy a contempt-of-court citation from U.S. District Judge John Kane at one point. Not the activists who'd protested against the plant producing plutonium triggers for decades. And certainly not the original plaintiffs, neighbors of Rocky Flats who'd started talking about suing the government shortly after the FBI raided the plant on June 6, 1989 -- and they first caught wind of what had really been going on there. And they weren't the only ones stunned by the revelations. So was anyone who might once have been interested in buying property now tainted by both plutonium and bad publicity.
Sally and Dick Bartlett bought their ten acres near Standley Lake in 1978. Dick was a former mayor of Arvada and a realtor; Sally was a nurse and a realtor, too. So they did their due diligence on the property, had an engineer check the soil. And when no one unearthed any problems, they sunk $500,000 into improvements -- and then, after the raid, tried to sell it for eleven years.
Bill and Delores Schierkolk bought their three acres "with a million-dollar view" in 1978. The more they learned about Rocky Flats, they more they wanted to get out -- but they couldn't afford to move after Bill lost his job in 1989. Instead, they stopped gardening.
Merilyn Cook set up a 72-acre horse property near Rocky Flats in 1983. When she couldn't get approval to develop, she divided it into six parcels, sold two, and wound up losing all the others. Lorren and Trudy Babb bought one of Cook's parcels. In 1990, they sold it for a large loss. Lorren died before the case went to court, but octogenarian Trudy was sitting in front.
These plaintiffs -- representing the class of thousands who owned property near Rocky Flats on June 7, 1989 -- listened while Judge Kane went over his lengthy instructions with the twelve jurors, most of whom hadn't been born when the Front Range was awarded a nuclear-weapons plant back in 1951. (That event merited a "Good News Today" headline in the Denver Post.) "We're not off to an auspicious start," Kane confessed to the jurors. "Not one, but two Xerox machines jammed." And that was just in the process of copying his instructions.
The technological breakdowns at Rocky Flats stretched back over four decades and were far more dangerous. From the start, the plant -- and so its neighbors -- has been plagued by four problems: fire, waste storage, incineration and water runoff.
"This case is about two companies that polluted an entire neighborhood just north of Denver," attorney Merrill Davidoff said in kicking off the plaintiffs' opening argument. "They lied about it, and they covered it up for 37 years.... It was, and still is, a huge coverup."
It's astonishing how little Denverites knew about Rocky Flats between the day it was built and the day it was raided; what's more astonishing is how little we still know. How far does the contamination really extend in Standley Lake and Great Western Reservoir, which provided the water for the City of Broomfield until exactly one day after the raid? Where are those missing 2,600 pounds of plutonium?
"They knew at the beginning what they were doing," Davidoff said of Rocky Flats and its operators. "And were still doing at the time of the FBI raid."
Dow, which was hired for the feds to run the new plant in 1952, produced a memo that same year detailing how unsuitable the site was: It was far too small, and the prevailing winds went exactly the wrong way, directly toward Denver, sixteen miles to the southeast. By 1955, the Atomic Energy Commission was warning of the hazards of plutonium fires. Two years later, one hit.
Here's how the plant reported the fire that had raged in 771, a plutonium-processing building, for thirteen and a half hours on September 11, 1957: "A small fire caused by spontaneous combustion spread to the ventilation system of one of the production buildings.Tests made have indicated no spread of radioactive contamination of consequence."
Five safety steps were recommended in the wake of the 1957 fire. None had been taken by May 11, 1969, when a fire on Mother's Day threatened to contaminate all of Denver.
Dow was gone by 1975, replaced by Rockwell. In 1986, the Environmental Protection Agency, the Colorado Department of Health and the DOE came up with a compliance agreement to govern operations, ending all those technological problems. That was the public story. In July of that year, an internal DOE memo acknowledged the plant was "in poor condition generally in terms of environmental compliance.... Much of the good press we have gotten from the agreement in principle has taken attention away from just how bad the site really is."
But someone was paying attention. In 1987, working off information provided by whistleblower Jim Stone, Denver-based FBI agent Jon Lipsky started looking into Rocky Flats. Two years later, he led the spectacular dawn raid on the plant -- the first time one federal agency had raided a facility run by another -- searching for evidence of environmental crimes. Lipsky has been subpoenaed to testify at the trial, but he's already talked at the State Capitol, a few days after he retired from the FBI, describing how the Department of Justice cut a deal with Rockwell, letting the company plead guilty to ten counts and pay an $18.5 million fine (another drop in the leaky bucket) rather than have any individuals -- at either Rockwell or the DOE -- face charges. Wes McKinley, the foreman of the grand jury whose work was stymied by that March 1992 settlement, has also been subpoenaed to testify. So have a host of experts on everything from pondcrete to infrared photos to property values.
In a few days, the federal government will declare the $7 billion cleanup of Rocky Flats complete, paving the way for its debut as a wildlife refuge. Meanwhile, the dirty little secrets will continue to spill out in Judge Kane's courtroom.
The Rights Stuff
Long before the plaintiffs in the current Rocky Flats case filed suit, Marcus Church took action. His family had settled on a large tract of property northwest of the young town of Denver in 1861; ninety years later, the feds decided to put a new nuclear-weapons plant on 6,500 scenic acres owned by Church. But he still had plenty of land around the facility, and in 1975, after Jefferson County refused to allow some of the plant's neighbors to develop their property -- primarily out of concern over plutonium contamination -- Church and two others sued Rockwell International, Dow Chemical and the Department of Energy, claiming that the 1969 fire and other problems at Rocky Flats had damaged their land beyond repair.
Which sounds pretty close to what neighbors in the class-action suit are now claiming in Judge John Kane's courtroom.
Ten years after Church and company filed suit, the government arrived at a complicated settlement deal. DOE agreed to pay about $9 million to the landowners (who had to return all confidential documents received during discovery), and Jeffco and the City of Broomfield purchased 800 acres of the affected property for $2 million -- half its appraised value -- to be used as "open space."
The Church case came up -- very briefly -- at Tuesday's opening arguments. In mentioning that suit, plaintiffs' attorney Louise Roselle noted that "the defendants have already paid." That prompted a fast objection by defense attorney David Bernick, who said the case had involved a separate legal action.
An action that could wind up compensating those plaintiffs twice.
"The purpose for the lawsuit was to get our land back," Charles McKay, the nephew of Marcus Church, told Westword in 1987. "Our basic intention was to have the federal judge bless the land."
Twenty years later, he wouldn't mind having Congress do the same. As Church's heir (his uncle passed away in 1979), he collected about $6.8 million of the settlement. And now McKay, a major Republican supporter, stands to pocket at least that much from another deal proposed last July by Senator Wayne Allard, which would set aside $10 million to acquire "essential mineral rights" under about 500 acres at Rocky Flats. Rights that McKay still holds, despite the fact that he's already been compensated by the government that damaged his land, a government that later decided to turn the contaminated property near that land -- and above those minerals -- into a wildlife refuge.
In August, Democratic congressman Mark Udall, whose district includes Rocky Flats, wrote DOE Secretary Samuel Bodman and Secretary of the Interior Gale Norton, requesting information on how they'd determined which mineral-rights holders would be reimbursed. On Tuesday, after congressman Bob Beauprez had already introduced Allard's proposal in the House, Udall was still waiting for a reply.
But then, it's never been easy to get the government to come clean about Rocky Flats.
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