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Yes, the refuge looks great...but what lies beneath?
Yes, the refuge looks great...but what lies beneath?
courtesy law office of Randall Weiner

Will the Rocky Flats Grand Jury Files Finally Be Opened?

This year marks the thirtieth anniversary of the FBI raid on the Rocky Flats Nuclear Weapons Plant, the first (and so far only) raid of one federal agency by another. At dawn on June 6, 1989, dozens of FBI and EPA agents entered the plant sixteen miles northwest (and upwind) of Denver, seeking evidence of alleged environmental crimes at the government facility that had been producing plutonium triggers for nuclear bombs since the ’50s...and been the site of leaks, fires and other accidents for decades.

The evidence they found was ultimately considered by Colorado's first-ever special grand jury, empaneled in August 1989. After two years of deliberations, the jurors wanted to indict eight individuals — some from the Department of Energy, some from Rockwell International, which ran the plant for the DOE — for environmental crimes. Instead, in March 1992 the Department of Justice sealed a deal with Rockwell, fining the company $18.5 million, less than it had made in one year of bonuses. No individuals were named.

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The grand jurors were prohibited from talking about what had happened behind closed doors, threatened with contempt-of-court charges. All the evidence — an estimated 3.5 million pages — that the grand jury had considered was sealed; the only document that has ever been made public was a redacted, 124-page report by the outraged jurors that had been leaked to Westword , then was released by a judge in late 1992.

But the evidence seized in that raid and considered by the grand jurors still exists, under seal. A petition filed in U.S. District Court on January 10 wants to bring it to light, as the best evidence of what's really beneath the surface at what today is the Rocky Flats National Wildlife Refuge.

The Rocky Flats Nuclear Weapons Plant after the raid.
The Rocky Flats Nuclear Weapons Plant after the raid.
DOE

There have been many activists working on Rocky Flats issue over the last forty-plus years, including demonstrators who would encircle the plant, stopping shipments before production shut down for good after the raid. One of the newest is attorney Pat Mellen, who filed the petition.

Mellen was working in the national security-clearance industry as a background investigator and district manager when she moved to Superior eleven years ago. By then, Rocky Flats had not only been closed, but declared clean after a $7 billion Superfund project; developers were snapping up surrounding areas. Mellen would drive up and down Indiana Street, which borders Rocky Flats, and would see fliers waving "live here" advertisements for the new Candelas development, while on the other side of the street protesters held up signs proclaiming "No nuclear parkway," a protest of the still-in-the-works Jefferson Parkway.

"It was a fascinating juxtaposition: those two messages in one place make no sense," Mellen says. "It got me interested in Rocky Flats."

Looking for an exit from the background-investigation industry, Mellen enrolled at the University of Denver law school. She began working in the school's Environmental Law Clinic, studying Rocky Flats. She considered creating a legal primer on the former nuclear weapons plant; that independent study project proved so vast that she instead focused on the five-year update of the cleanup plan, as well as studying the proposed parkway and concerns about the refuge, then still two years away from reopening.

The entrance to a trail at Rocky Flats.EXPAND
The entrance to a trail at Rocky Flats.
Westword

By the time the refuge opened this past September, Mellen was a full-fledged lawyer working full-time on environmental issues. (She has a certificate in Environmental & Natural Resources Law from DU.) A decade before, the EPA had determined that the Rocky Flats property was cleaned up and "safe," transferring over 5,200 acres to the U.S. Fish and Wildlife Service for the refuge. "'Safe' was being used as a get-out-of-jail-free card," Mellen says. "Everyone says it's 'safe.' So the conversation came up: How do we do an audit, how do we look at this concept of 'safe'?"

The ultimate answer: An audit using contemporaneous documents that showed what had really been done to the land, what had been left behind. And the best source of that information? The thirty-year-old grand jury files.

The focus of the cleanup was 1,000-plus acres at the center of the property, where the heavy work had been done; that area was remediated to six feet deep, then secured from the public as the off-limits Central Operable Unit. "Below," Mellen notes, "the contamination was allowed to be unlimited and uncontained."

The area that would become the refuge, referred to as "white space" in the cleanup, was not remediated. To determine that it was "safe," cleanup officials had divided the area into thirty-acre grids, and then taken five sample tests in each one. They found nothing in violation, but "you tell me how much you can miss in thirty acres," Mellen says.

Rocky Flats through the years.
Rocky Flats through the years.
colorado.gov

Mellen talked to colleagues and mentors about nightmare scenarios. In one, some unsuspecting worker puts a backhoe shovel into a lost barrel of transuranic waste, which is exposed to the air. In another, considered too unlikely to worry about until a British company actually applied for drilling permits this fall, fracking outside the refuge causes an earthquake, sending plutonium to the surface or into the watershed.

"Our proposal is, let's review the documents, then try and re-create the real map of where the hot spots are," Mellen says. "Then make intelligent decisions about unique sites."

According to the petition, “The documents gathered by the Grand Jury and now under seal are a unique resource that provides the detailed evidence of whether specific locations or hot spots of unremediated or undiscovered hazardous substances must outweigh a site-wide ‘safe’ determination made for other purposes."
The petitioners include the Alliance of Nuclear Workers Advocacy Groups, Rocky Flats Downwinders, Candelas Glows/Rocky Flats Glows, Environmental Information Network, Rocky Flats Neighborhood Association, Rocky Flats Right to Know and Rocky Mountain Peace & Justice Center.

In the petition, they argue that the grand-jury documents may provide evidence of unreported and unaddressed residual plutonium contamination and other ongoing environmental dangers at both the refuge and the COU Superfund site. Providing new legal arguments for the release is the role this information could play in resolving policy controversies, such as the creation of trails and the refuge visitor center, as well as the construction of the Jefferson Parkway and more potential fracking applications.

"Until we find a way to break that determination of 'safe' down, we are stuck," Mellen says. "Time is of the essence."

Read the petition:

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