Full Body Burden (37 page)

T
HE GRAND
jury investigation drags on. The lives of the jurors are affected in unexpected ways by two years of week-long sessions and absences from work and family. Relationships suffer. The court sessions are long and often involve detailed, dull testimony. One juror serves for nearly
eighteen months before she truly grasps what’s at stake.
At a restaurant in Brighton, a small town near Denver surrounded by cattle ranches, the waiter brings to the table water that tastes “like cow waste.” “A light bulb came on,” she recalls. “I knew why I was on that grand jury.”

After twenty-one months of work, on May 18, 1991, the jurors, led by cowboy Wes McKinley, vote to indict Rockwell, five of its employees, and three others working for the DOE. But in a surprising turn of events, U.S. attorney and Department of Justice prosecutor Mike Norton refuses to sign the indictments.
Not a single Rockwell or DOE official is indicted, despite the fact that more than four hundred environmental violations occurred for decades.

Instead, Norton negotiates a plea bargain with Rockwell. In addition to no indictments, dumping and incineration charges are dropped. No individuals will be charged, and the settlement guarantees their immunity.
Rockwell agrees to plead guilty to criminal violations of the federal hazardous waste law and the Clean Water Act, admitting to five felonies and five misdemeanors. The criminal conduct includes “possible exposure of workers and local citizens to radioactive and hazardous waste that was sprayed into open pools and even stored in ventilation vents.”
Rockwell is required to pay an $18.5 million fine—at that time the second largest in U.S. history for an environmental crime, following the 1989
Exxon Valdez
oil spill in Alaska—yet still a smaller amount than what the corporation has collected in bonuses for running Rocky Flats and meeting production quotas for that one year, representing just one-sixth of 1 percent of Rockwell’s yearly sales.
Rockwell routinely received millions of dollars in performance bonuses despite the DOE’s own ranking of Rocky Flats as “the most dangerously contaminated site” in the nation’s nuclear weapons complex.
Rockwell is also allowed to file for reimbursement of $7.9 million from taxpayers for case-related fees and costs. Contractors hired by the federal government to operate Rocky Flats, or any nuclear weapons facilities, are indemnified from any damages. The more shocking charges—midnight burning of waste in incinerators that were supposed to be shut down, and secret dumping of poisons into waste ponds that were also supposedly closed—are not prosecuted.

Perhaps most devastating to local communities, however, is that the plea agreement indemnifies Rockwell from any further claims and closes the door on all future prosecution, whether criminal or civil. All court records will remain secret.
The agreement stipulates that Jim Stone’s charges cannot be mentioned in the plea agreement, and trial-related documentation regarding past and ongoing contamination will be permanently sealed.
The agreement also allows Rockwell to receive future contracts with the government. Judge Finesilver approves the plea bargain and tells the grand jurors that their work is finished and they can all now go home.

The jurors are stunned. They can’t believe what just happened.
They refer again to the instructions of Judge Finesilver: “The federal grand jury … is independent of the United States attorney … it is not an arm of the United States attorney’s office. Please keep in mind, you would perform a disservice if you did not indict where the evidence warranted an indictment.… The government attorneys cannot dominate or command your actions.”

But they are bound by an oath of secrecy about the case, even after the case is closed. They had two questions: what was done, and who ordered or allowed it? The Justice Department, as a matter of policy, declined to sue its sister agency, the DOE. And Rockwell says that everything it did was at the behest of the DOE, and the company insists that no individuals be charged.
It’s not uncommon for the Justice Department to allow corporate officials involved in environmental crimes to avoid individual indictments in exchange for plea bargains and fines. In most cases this is reached before a grand jury can see the evidence of the crime. However, the Rocky Flats case is different. The Rocky Flats grand jury endured almost three years of damning testimony. They can name names. They want indictments, and they want the public to learn the truth of past and ongoing contamination practices at Rocky Flats.

“
We were studying a million pages of documents,” McKinley tells the press. “A million. Memos, internal information, balance sheets, and other information. We had a little disagreement as to whom to indict. If the case had gone as the government planned, we would have indicted
various workers at the plant. The people who went out there, earned a day’s wage and followed orders. Those were not the responsible people. [To indict average workers] would have targeted the throwaway people, and things would have gone on as usual. They would have replaced one valve-turner with another. We wanted to get the people responsible so that we could actually enforce environmental laws. These were the people in the DOE and the executives in the higher echelon of Rockwell International who, we felt, actually committed the crimes.”

Rather than go home, the jurors consider their oath, consult the Constitution, look over the evidence again, and write their own grand jury report—without the help of prosecutors. They ask Judge Finesilver to read it and release it to the public. He refuses.

On September 25, 1992, Finesilver rules that the grand jury report will remain sealed.
Three years earlier, the same judge had ordered the jurors to find the truth. Now he asks them to keep the truth under wraps.

But somehow, a few days later, much of the report prepared by the grand jurors is leaked to the press, and a detailed account of the grand jury report and its accusations against Rocky Flats—with large sections still missing—is printed in a Denver alternative newspaper.
Harper’s
magazine publishes excerpts in its December 1992 issue. Finesilver calls for the Justice Department to investigate whether grand jurors have breached their oath of secrecy and should face criminal charges. Publicly revealing secret information from a grand jury can result in high fines and a jail sentence. The DOE wants to discover who leaked the report and prosecute the grand jurors. The jurors become known as “the Rocky Flats 23,” the first grand jury in history to risk personal incarceration for revealing information critical of the Justice Department.
Twelve of the jurors write a personal letter to President-elect Bill Clinton, asking him to appoint a special prosecutor to investigate the government’s plea bargain with Rockwell. Foreman Wes McKinley and juror Kenneth Peck, a lawyer in private practice, call the press and read the letter from the steps of the Denver courthouse. There is no response from Clinton.
In January, seven of the jurors appear on
Dateline NBC
to discuss the trial and why they feel it is a miscarriage of justice.

Both Mike Norton and Ken Fimberg defend their decision not to prosecute corporate or government individuals. Many people were simply carrying out orders, they say. The people who might have been prosecuted, Fimberg tells the press, were basically mid-level people who had not established the policy, but acted consistent with it. Further, they’ve both begun to realize how the whole ballgame involves not just a contaminating weapons plant, but forty years of public policy. “I’m not going to prosecute conduct well known to regulators,” Norton says. There is no question of groundwater contamination and toxic runoff, but health effects in nearby communities are hard to prove. And the DOE’s policy of indemnifying weapons plant contractors means that the Energy Department—thus the taxpayer—will have to pay any fine levied against Rockwell. Only if they settled could they make Rockwell pay its fine.

The plea bargain with Rockwell puts all of Colorado up in arms. In Washington, an oversight subcommittee of the Committee on Space, Science and Technology, chaired by Representative Howard Wolpe (D-Michigan), issues subpoenas to a number of players in the grand jury investigation, including Fimberg, Norton, and Lipsky, for eight days of private hearings in September 1992.
Prosecutors emphasize that they’ve been the first to initiate criminal prosecution of environmental crimes at a DOE plant, but what they found was an “institutional culture unchallenged by Congress or regulatory agencies.” Is it fair to indict and prosecute individuals, Fimberg asks, for acting consistently within that culture? Wolpe responds by asking whether a situation has been created where there is literally no accountability that can be imposed on government agencies. “Are you telling us,” he asks, “[that] the culture of an agency, even if it violates a law that has been passed by Congress, represents a kind of defense? … Isn’t the purpose of law to change behavior?”

In January 1993, the Wolpe committee issues a report revealing evidence of high-level intervention by Justice Department officials to reduce charges and fines against Rockwell. “
The most important thing that federal prosecutors bargained away in negotiations with Rockwell was the truth,” Wolpe says.
Jonathan Turley, a Washington lawyer representing
the grand jurors, is more blunt. “The Justice Department,” he says, “is in complete denial.”

One person who does not live to see the controversy surrounding the grand jury investigation is the previous Rockwell manager of Rocky Flats, Dom Sanchini, who is ill and has stepped down from his job. On November 17, 1990—seventeen months after the raid begins—he dies at age sixty-three after a struggle with cancer. He was fifty-eight when he began working at Rocky Flats, and he was one of the individuals the grand jurors had wanted to indict. Sanchini worked for Rockwell for a total of thirty-seven years. He leaves behind a wife, two daughters, and three grandchildren.

S
OME WORKERS
and their families begin taking legal action. Workers’ compensation claims are filed on behalf of fourteen workers who were involved in fabricating plutonium and sustained burns, exposures, and puncture wounds as a result. Represented by attorney Bruce DeBoskey, thirteen of them died of cancer and the surviving worker has bladder cancer. Many of these cases date back to the 1970s, and the “Widows of Rocky Flats,” as the press calls them, have been fighting the government for years. In the compensation hearings, government scientists claim that the cancers and other illnesses suffered by workers could not be caused by conditions at Rocky Flats because their exposure to radiation was within the level that the government considers safe and that deaths were caused by smoking or other causes. Experts testifying for the plaintiffs argue that exposure to radiation at Rocky Flats caused the cancers, and the levels for permissible exposure established by the government are much too high. In a number of studies, the DOE has confirmed higher incidences of cancer and unsafe working conditions at Rocky Flats, yet at the same time, a report by Rockwell in 1988 puts the plant’s rate of worker injury at 3.2 injuries per 200,000 hours of work, a rate less than half the national average for industrial plants across the country. “This is probably the safest place they’ll ever work,” says Clayton Lagerquist, manager of radioactive protection at the plant.

DeBoskey disputes the government’s position. “If society insists on spending its resources to produce nuclear weapons,” he tells the press, “it ought to do it understanding that there is enormous human cost. That hasn’t been factored into the equation yet.”

In September 1990, the case of Rocky Flats worker James R. Downing, who died in 1978 at the age of forty-four, becomes the first in U.S. history in which a judge determines that occupational exposure to radioactive elements was solely responsible for a worker’s death from cancer. Downing’s exposure to radioactive elements was within the limits considered acceptable by the DOE.

L
OCAL RESIDENTS
aren’t sure what to believe. Property values have gone down. Is it due to nothing more than bad publicity?
While residents wonder, the General Accounting Office (GAO)—the audit, evaluation, and investigative arm of the U.S. Congress—reports that the latest inventory records show that 2,900 kilograms of plutonium as well as 97,000 kilograms of solid residue and 14,000 liters of liquid residue contaminated with plutonium are stored at the plant. The DOE can’t move the nuclear materials in their present form, as they do not meet shipping and disposal requirements.

Mark Silverman takes over in 1993. Silverman is a West Point–trained engineer who did a combat tour in the U.S. Army and worked at another bomb factory in South Carolina. Fourteen tons of plutonium are spread in various forms all over the facility. Plutonium operations ended in 1989 with the FBI raid. Because the stoppage was supposed to last only a few weeks, nuclear materials have been left in tanks, pipes, and containers designed only for temporary storage. Plans to restart weapons production were stalled again and again. Deployment of the W88 warheads on the Trident II missiles—the most sophisticated strategic thermonuclear weapon in the U.S. arsenal—was slowed in 1989 by the raid on Rocky Flats, and plans for production at Rocky Flats were finally scrapped in 1992 when the W88 weapons program ended.
Silverman finds himself facing not only extraordinary environmental problems, but
a plant that has “no production, no clear mission, no real deadlines, and regulatory and political turf battles.”

No one’s sure what will happen with Rocky Flats. Will it be closed or moved? How much of it can be cleaned up? The plant has more employees than ever before, but no one’s sure exactly what is being accomplished.

Silverman is a little different from the managers Rocky Flats has had in the past. The most daunting part of his job is to overcome the distrust, anger, and hostility between Rocky Flats and the public, including the regulators, citizens, news media, and elected officials at all levels. In an interview with Silverman,
Time
magazine reports that “aging buildings are tainted by plutonium spills from leaking pipes, valves and containers, and from compartments known as ‘infinity rooms’ because their level of radioactivity is so high. Barrels of radioactive waste are stacked fifteen feet high. Fields contaminated with radioactive oil are covered by only one layer of asphalt. Now that suburbs have crept within three miles of the plant’s perimeter, the plutonium that has periodically leaked into the air and nearby streams poses new dangers.”