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It's Toast

Public Advisory: The State of Colorado wishes to provide you with information concerning the history of the Rocky Flats National Wildlife Refuge, formerly Rocky Flats Nuclear Weapons Plant, the radioactive and other hazardous materials that were used and released at that site when it was in operation, and the cleanup...
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Public Advisory: The State of Colorado wishes to provide you with information concerning the history of the Rocky Flats National Wildlife Refuge, formerly Rocky Flats Nuclear Weapons Plant, the radioactive and other hazardous materials that were used and released at that site when it was in operation, and the cleanup that has occurred. Some contamination may remain in the soil and groundwater. -- from HB 1079, January 31, 2005

William Smith had been driving past the giant, bulging boxes for days before he stopped to wonder what was inside of them. They were right out in the open at Rocky Flats, the plant responsible for making plutonium triggers for the nation's nuclear arsenal -- until a federal raid on the facility in June 1989 suspended operations there. Smith, the lead EPA agent, had been investigating the plant for more than two years, poring over a twenty-volume waste study from 1984-85, going to briefing after briefing, working with FBI agent Jon Lipsky to obtain the search warrant needed before they could set foot inside Rocky Flats.

Their stay there would stretch to nineteen days -- and the task force working around the clock would expand from eighty members to EPA agents from across the country -- before all the evidence was collected.

"The whole nature of the place was so secretive," Smith remembers. "I did the pondcrete investigation. We kept driving by it; it was on the main road. Finally, I noticed a little thing that said Œhazardous waste unit.' People had been driving by this forever, even EPA people, and never knew it was something that wasn't legal." It turned out that workers at the plant, a Department of Energy facility then run by Rockwell International, had been mixing radioactive waste from solar ponds with concrete and putting the mix into twelve-foot cardboard cubes, then shipping the boxes to Nevada. But the contents never really hardened -- some were like pudding, Smith says -- and the Nevada site refused to accept any more of them. So they just kept piling up at Rocky Flats in an ongoing violation of environmental laws...and all common sense.

Smith didn't find much common sense at Rocky Flats. He didn't find a conspiracy, either. "I think it was incompetence, to be honest," he says. "How could you not get permits for the pondcrete? You couldn't hide it." And the pondcrete wasn't the only bumbling he stumbled over at the plant. Before the raid, the EPA had placed monitoring devices in off-site streams; when plant officials found one of the devices, they automatically assumed it was placed there by radical environmentalists in a potential act of sabotage. Smith learned of that in a memo uncovered during the raid.

Before the investigation was over, the task force had filled 185 boxes with documents. Smith read through every one. Since the workers had lawyered up early, with Rockwell or the union covering legal costs, those documents were particularly important. "White-collar cases you make on paper," he says.

Only a fraction of those documents were presented to the grand jury convened in August 1989 to consider alleged environmental crimes at Rocky Flats. Although Smith testified several times, he wasn't around when the grand jurors wrote their report outlining how the Department of Justice had derailed their attempts to indict eight individuals involved in what they called "an ongoing criminal enterprise." The EPA had transferred Smith to head its New England office in 1991; he came back when the settlement of the case was announced in March 1992 -- a plea arrangement in which Rockwell agreed to pay $18.5 million for violations at Rocky Flats.

"It was an amazing thing to me that we got the largest hazardous-waste fine in history," he recalls, "and all of a sudden, it ain't good enough."

Rocky Flats National Wildlife Refuge was a nuclear weapons manufacturing plant from 1950-1991. During that time, the United States Department of Energy (DOE) and its contractors buried, burned and sprayed plutonium and other radioactive and hazardous materials onsite at Rocky Flats. Some of these actions were legal, others illegal.

When he was called to serve on the grand jury investigating Rocky Flats, Wes McKinley, a rancher from the southeastern corner of Colorado, thought it was some hippie place. Today, he knows better. Today, he wouldn't take his mule to any refuge on the site -- and the mule's already sterile.

In the fifteen years since he was named foreman of the Rocky Flats Grand Jury, McKinley has run unsuccessfully for Congress (his mule did win an endorsement, though) and successfully for the state legislature. In his first act as a representative, last month McKinley announced that he would introduce legislation requiring that anyone going to the Rocky Flats refuge -- slated to open sometime after the cleanup is done in 2006 -- be advised of its history and the dangers lurking therein. "It's government's job to protect our liberties," he says. It's like requiring a dude on one of McKinley's pack trips to sign a waiver -- except that everyone already knows a horse can be dangerous.

With McKinley, you're always in for a wild ride. So he didn't just introduce his legislation, he also introduced Lipsky, the FBI agent who'd led the raid with Smith and had just retired from the agency at the end of December. Lipsky was at the Capitol to talk about how the fix was in between the Justice Department and Rockwell ("True Lies," August 18). "I want our government to do good-government deeds," he'd explained before he went public with his concerns that the cleanup, like the deal itself, did not go far enough to protect the public.

On Monday, McKinley's HB 1079 took a beating before the committee on Health and Human Services -- and this after the House had spent "two days in session talking about the rights of women to have information in a case of rape," he points out. "These people who were so protective of what could be, and all of a sudden they don't want their living children to know about the real dangers?" But McKinley fought back, and after Representative Paul Weissman of Louisville amended the bill so that refuge visitors would not be required to sign the advisory, the measure passed out of committee by a vote of seven to six. It now moves to Appropriations -- but, as McKinley notes, "How much does it cost to make a sign?"

"We spend a lot of time on stuff that's not important," McKinley says of his first few weeks as a lawmaker. "The people in my district don't ask what the government's going to do for them; they get real nervous when they think about what the government's going to do to them."

Since 1992, the DOE has undertaken cleanup of the site. The DOE, the EPA and the State of Colorado acknowledge that, after the cleanup is complete, detectable levels of plutonium and other radioactive and hazardous materials will remain in the surface and subsurface soils in the groundwater. There is controversy within the scientific community concerning acceptable levels of risk from exposure and the methods of calculating that risk, and there is considerable scientific uncertainty associated with these issues.... The EPA and the State of Colorado, using mathematical modeling, have determined that cleanup of what is now the Rocky Flats National Wildlife Refuge has made the refuge safe for visitors and wildlife refuge workers.

Bill Smith admits that he doesn't know much about what happened at Rocky Flats between the time he left Colorado in 1991 and moved back here in 1997. He started paying attention when he heard Lipsky talk about the case they'd both worked on for so long. "If you knew the way things worked at Rocky Flats, no way there could be a conspiracy like that," Smith says. "It's Kennedy-assassination conspiracy stuff."

They made a conscious decision not to go after the small fish in the big, radioactive pond, he says: "I didn't want to indict the lower-level people while all the people who made big bucks got away with it." When they found evidence of illegal acts, they pushed for the largest fine they could. And when they found evidence of illegal acts outside the five-year statute of limitations on environmental violations, they passed it to the civil side in charge of cleanup.

Will that cleanup go far enough? "Personally, I wouldn't want to take my kids to certain areas," Smith says. "Mixed-waste drums under asphalt -- how well can you clean that up? I would not walk in the prime security zone, either." Nor would he buy a house downwind of the plant.

Thirteen years after the Justice Department cut its deal with Rockwell, Smith worries that controversy continues to obscure the raid's biggest accomplishments. "We opened up DOE," he says. "They had to change all their policies after that. They didn't want us looking at other facilities."

And they closed Rocky Flats altogether. "We didn't go in there thinking that we would shut this plant down," he adds. "The unintended beneficial consequence is that the plant is gone. It's toast. What's that compared to some fine?"

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