Environmental Information Network

Update on Jim Stone whistleblower action

Paula Elofson-Gardine

2/23/99

2/23/99 EIN Update on Jim Stone whistleblower action

A real blast from the past for those of us that sat through these pondcrete crisis and environmental exchange of information meetings 11+ years ago.

Federal Civil Action #89-M-1154 USA ex rel James S. Stone vs Rockwell International Corporation, et. al. in Judge Richard Matsch's court, is as follows: Opening Statements were made by both sides by U.S. Attorney Jack Kolar for USDOJ on behalf of the U.S. Government and Jim Stone, and Attorney Mike Williams on behalf of Rockwell International. The first witness, William Rask, former USDOE Rocky Flats Operations Branch Chief (retired since 1997) was called at 12:45, and questioned until 5:00 pm.

Submitted by
Paula Elofson-Gardine
Executive Director
Environmental Information Network
(303) 420-2967

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Summary:

Plaintiff opening statement: U.S. Attorney Kolar focused on three major issues that emerged from the USA vs Rockwell case plea agreement of 1992, of the mishandling of waste forms called PondCrete, SaltCrete, Sewage Treatment Plant (STP) radiotoxic wastes being spray irrigated onto lands that flowed to Woman Creek, and offsite from Rocky Flats to drinking water supplies for the north metro areas of Westminster, Northglenn, and Thornton.

Kolar asserted that Rockwell betrayed a trust and responsibility of running Rocky Flats in compliance with environmental laws, lying about the status of their waste handling and EPA RCRA (Resource Conservation and Recovery Act) compliance posture. In particular, Rockwell knew that the Pondcrete (sludges from Solar Evaporation ponds that took Pu process wastes and evaporated the liquids, with solids settling to the bottom that were dredged up and combined with cement to make "pondcrete") was a problem and concealed it.

The Pondcrete was supposed to harden, when in fact it was resistant to hardening and ended up being the consistency of mayonnaise - and collapsed containers made of triwall (triple layered cardboard) with plastic liners. These huge blocks were 1500 pounds each. Also, Rockwell had been aware of the need to store these materials properly, but allowed them to stay outside, subjected to high winds, precipitation, and snow that degraded the containers and contributed to collapse and spills of pondcrete. Rockwell assured DOE that the cardboard boxes were adequate when DOE wanted them to use plyboard instead, and similarly also assured DOE that the weathering of the boxes was no danger to the product, denying that a leaching problem was occurring. Material inspections were thwarted by bad pondcrete boxes being moved around so inspectors would not see the poorly mixed/set up pondcrete and deteriorating boxes.

Approximately 9,000 blocks were defectively produced by spring of 1988, with an Unusual Occurrance Committee concluding that there was too little cement mix used, inadequate inspections (done by touching only the top surface to see if it was hardened), weathering of cardboard all contributing to the problem. If Rockwell had reported this at once, the problem could have been addressed before it cost more than $150 Million to fix and repackage these blocks.

The saltcrete consisted of nitrate crystalline wastes from another Pu chemical recovery process. Problems with saltcrete could effectively shut down production, so Rockwell continued to make defective blocks to keep production going, which took precedence over any environmental concerns.

The radiotoxic STP water was "land applied" or spray irrigated year round on the lands east of the 903 Pad, with downgradient drainage to Woman Creek, that went to offsite reservoirs that are drinking water supplies. It was clearly not evaporating or being absorbed by the vegetation. The radiotoxic water was seen running off to the waters leading offsite, but this was not reported, and no intervention was attempted. These were Clean Water Act violations.

U.S. Attorney Kolar stated that Rockwell was liable for awards paid and approved under false pretenses, that they should return the cost of repair to DOE; that they perpetrated commonlaw fraud by misrepresentation, and effectively had a Breech of Contract when managers acted without good faith on the issues of pondcrete, saltcrete, and spray irrigation.

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Defendant opening statement: Rockwell's Attorney Mike Williams focused on attempting to direct the blame to DOE, and away from Rockwell. He went over a considerable amount of old history of when the Rocky Flats nuclear weapons facility was built, and how the whole nuclear complex split up responsibilities for manufacture and assembly of the bomb.

He emphasized that this case was not about fraud, but about whether or not DOE would accept responsibility for it's role in the Rocky Flats operations, as Rockwell did when they entered into the plea agreeement in 1992, and paid their fine.

Attorney Williams focused on contract language, audits, and how the contract gave DOE complete control of Rockwell and Rocky Flats - that DOE was negligent in not fulfilling their end of oversight of the contractor, even though they were SO close, they shared offices and carpooled. He discussed the 1986 Compliance Agreement, and the controversy as to whether or not Rocky Flats was subject to complying with environmental laws, and asserted that Rockwell asked DOE repeatedly to provide funds for storage buildings for the pondcrete, but was turned down at every request.

Williams stated that DOE knew before May 23, 1988 when a major collapse and spill occurred, about the status of the blocks. He scoffed at the idea of a "conspiracy" of 200 people being a part of a coverup, no motive to participate in such a plan. (Note: the plaintiff opening did not assert a conspiracy or coverup...Judge Matsch instructed the jury to disregard this implication). Saltcrete was a problem because it tended to expand and attract water, and then burst the containers repeatedly - and that RF still could not make pondcrete well to this day. Asserted DOE refused to allow Rockwell to build containment structures for pondcrete until a week after the FBI raid.

Williams summarized by going over an elaborate time line chart, stating DOE ordered Rockwell to spray irrigate, no fraud occurred, they would have done things differently if allowed to do so, had accepted responsibility, and now it was DOE's turn to do so.

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What you missed: Plaintiff Attorneys objected to lists shown by Defendant Attorney to jury that implied "DOE knew" about lists of assertions by Rockwell, or that there had been implication of a conspiracy going on at RF in these matters. Judge Matsch responded by instructing the jury that there was no conspiracy charge involved with this case, and to disregard any assertions or implications about that.

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First witness, William Rask was USDOE Rocky Flats Operations Branch Chief (retired since 1997). He described the work done at Rocky Flats, the M&O (maintenance and operations) contract of Rockwell, who was responsible for what, how people reported to each other, how evaluations of the contractor occurred, and what basis was used for bonus fees, base fees, and reimbursements.

Rask described Rockwell as having the "detail knowledge" of day to day operations at RF, but that DOE much of the time did almost no inspection or real oversight of Rockwell, relying on them to notify DOE of problems.

Cross examination went into (excruciating) pedantic detail of RF site descriptions, underscoring that DOE owned everything there, land and all; relationship between DOE and Rockwell; weekly meetings and discussions; responsibilities. At particular issue was the storage of pondcrete and saltcrete at the 750 and 904 pads in unprotected open areas. More discussion focused on oversight responsibillity, the Compliance Agreement, and when DOE became aware of the pondcrete problems, and how long it took to resolve it. Related issues were when pondcrete production was halted, how many blocks had to be repackaged due to collapse and poor mix, and how long it took to get structures in place for safer storage of these waste forms.

Redirect established that pondcrete production was stopped when the 5/23/88 pondcrete collapse crisis was fully realized. Question was posed regarding whether or not the other two (of three) solar ponds had been cleaned out by the Compliance Agreement deadlines. A: No. was cleanup stopped because of these waste form problems? A: Yes. Was DOE notified of any problems with the saltcrete? A: No. Was DOE notified of solidification problems prior to the 5/23/88 spill? A: No. The difference between concrete setting and curing was discussed, and what degree of "hardness" was the target for this waste form.

End of Summary (18 pages notes)

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