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The Grand Jury Report on Environmental Abuse at Rocky Flats
THE GRAND JURY REPORT: Rocky Flats
Here's What Jurors Wrote -- All of it
PART ONE -- Table of Contents
Editors Note: Federal Judge Sherman Finesilver approved released
of a redacted version of the Grand Jury report in January of
1993. The report published here is the complete report.
Colorado Federal District Court Report of the Federal District
Special Grand Jury 89-2 January 24, 1992
Confidential Document-Not for Public Disclosure
Table of Contents
I. Introduction
II. Scope of the Investigation
III. The Government Agencies Failed Repeatedly in their duty
to protect the public's interest
A. CDH, DOE and EPA did not perform adequately. Their oversight
and regulatory functions
B. DOE did not properly perform it's oversight duties
1. DOE did not emphasize to Rockwell the importance of operating
the Rocky Flats Plant in compliance with environmental laws
2. Rockwell controlled DOE through the flow of information
concerning environmental conditions at the Rocky Flats Plant
3. DOE prevented independent authorities from inspecting the
Rocky Flats Plant
4. Regional DOE managers ignored evidence of environmental
problems at the Rocky Flats Plant
5. DOE continues today to tolerate violation of environmental
laws at the Rocky Flats Plant
C. The government agencies have established no deadline by which
DOE and EG&G must stop breaking the law at the Rocky Flats Plant
D. CDH and EPA were lax and ineffective in their attempts to
enforce environmental laws and regulations at the Plant
1. Before the FBI raided the Plant, CDH knew that DOE and
Rockwell were violating environmental laws in their operation of
the Plant
2. This investigation was prompted by evidence of criminal
conduct that was found in CDH's files
3. EPA ignored environmental problems at the Rocky Flats Plant
4. CDH and EPA continue to tolerate the accumulation of
beryllium dust in ventilation ducts at the Rocky Flats Plant
E. Government employees should be held responsible for their
criminal acts at the Rocky Flats Plant
IV. DOE, EG&G, and Rockwell have violated RCRA by illegally
storing, treating, and disposing of hazardous wastes and mixed
wastes at the Rocky Flats Plant
A. EPA has statutory authority to regulate DOE facilities under
RCRA
1. RCRA became effective in November of 1980
2. DOE claimed in 1983 that the Rocky Flats Plant was completely
exempt from EPA's jurisdiction under RCRA
3. DOE asserted in 1984 that mixed wastes at the Rocky Flats
Plant were exempt from RCRA regulations by EPA
4. DOE acknowledged in 1986 that some mixed wastes at the Rocky
Flats Plant were subject to RCRA regulation
5. DOE argued in 1987 that mixed waste residues at the Rocky
Flats Plant were exempt from regulation under RCRA
6. Judge Babcock ruled in 1990 that the Rocky Flats Plant's
residues are subject to RCRA regulation
7. DOE has not requested nor received a Presidential
proclamation exempting DOE from operating the Rocky Flats Plant
in compliance with RCRA
B. DOE and Rockwell violated RCRA by illegally storing,
treating, and disposing of residues at the Rocky Flats Plant
from 1980 through 1989
1. DOE and Rockwell accumulated a 40-year inventory of residues
at the Rocky Flats Plant
2. DOE has never applied to EPA or CDH for a RCRA Permit or
interim status under RCRA to store, treat, or dispose of
residues at the Rocky Flats Plant
3. DOE and Rockwell collected and stored a large volume of
radioactive incinerator ash residues at the Rocky Flats Plant
although no process has ever existed by which plutonium can be
recovered from these residues
4. Rockwell established and operated a nonpermitted, mixed
waste, permanent storage facility at the Rocky Flats Plant
5. Rockwell had several reasons to avoid disclosing the true
status of the residues, which were stored at the Rocky Flats
Plant
6. DOE did not want to pay for the residues to be stored at the
Rocky Flats Plant in accordance with the requirements of RCRA
7. DOE does not have to continue storing the residues at the
Rocky Flats Plant
8. DOE and Rockwell violated several provisions of RCRA by
treating, storing, and disposing of residues at the Rocky Flats
Plant without having appropriate RCRA permits
C. DOE and Rockwell violated RCRA by illegally treating and
disposing of hazardous wastes and mixed wastes through use of a
nonpermitted treatment facility at the Rocky Flats Plant
1. DOE and Rockwell concealed from EPA and CDH that Rockwell was
using an incinerator at the Rocky Flats Plant to treat hazardous
wastes and mixed wastes
2. DOE and Rockwell illegally used the incinerator in Building
771 to treat hazardous wastes and mixed wastes
3. DOE did not apply for a RCRA Permit for the 771 incinerator
because DOE knew the incinerator could not meet RCRA's standards
for a hazardous waste treatment facility
D. DOE and EG&G have violated various provisions of RCRA
subsequent to January 1, 1990
1. On January 1, 1990, EG&G assumed responsibility for operating
the Rocky Flats Plant in compliance with applicable law
2. EG&G has violated and continues to violate RCRA in operating
the Rocky Flats Plant
3. EG&G's clean-up efforts at the Rocky Flats Plant have
violated RCRA
4. EG&G cannot restart operations at the Rocky Flats Plant
without violating RCRA
E. Rockwell violated RCRA and the terms of DOE's NPDES Permit by
spray irrigating chromic acid and raw sewage
1. Rockwell used the STP to treat hazardous waste
2. The chromic acid spill destroyed the STP's ability to treat
sewage
3. Rockwell spray irrigated the chromic acid to avoid adverse
publicity
4. Rockwell acted too slowly in determining the identity of the
unknown toxic liquid, which flowed into the STP
5. Rockwell failed to promptly advise the regulatory agencies
and surrounding communities that the chrome spill had occurred
6. Rockwell violated RCRA and the Clean Water Act in several
respects during the chrome spill incident
F. Rockwell illegally stored and treated liquid mixed wastes in
a closed RCRA treatment facility
G. Rockwell violated RCRA by illegally storing thousands of
pondcrete and saltcrete blocks outdoors
H. Rockwell violated RCRA and the Clean Water Act by engaging in
inappropriate spray irrigation practices
V. Rockwell and EG7G have operated the plant in violation of the
Clean Water Act with a deficient ground-water monitoring system
VI. DOE and Rockwell conspired to violate environmental laws.
PART TWO
I. INTRODUCTION
The Department of Energy ("DOE"), it contractors -- Rockwell
International, Inc, ("Rockwell"), EG&G, Inc. ("EG&G"), and many
of their respective employees have engaged in an on-going criminal
enterprise at the Rocky Flats Plant ("the Plant"), which has violated
Federal environmental laws. This criminal enterprise continues to
operate today at the Rocky Flats Plant, and it promises to continue
operating into the future unless our Government, it's contractors,
and their respective employees are made subject to the law.
When agents of the Federal Bureau of Investigation ("FBI") and the
Environmental Protection Agency ("EPA") raided the Plant on June
6, 1989, they found compelling evidence that hazardous wastes and
radioactive mixed wastes had been illegally stored, treated, and
disposed of ("STD") at the Plant in violation of the Resource
Conservation and Recovery Act ("RSCA"). These agents also
discovered violations of the Clean Water Act and other
environmental statutes through a variety of continuing acts,
including the illegal discharge of pollutants, hazardous materials,
and radioactive matter into the Platte River, Woman Creek, Walnut
Creek, and the drinking water supplies for the Cities of Broomfield
and Westminster, Colorado. These agents also uncovered a culture
of criminal misconduct, which used illegal means to achieve
corporate bonuses.
During the more than two and one-half years since the FBI raid,
little has changed at the Rocky Flats Plant. DOE and EG&G
employees continue to violate many Federal environmental laws at
the Rocky Flats Plant. The continuing and pervasive nature of these
criminal acts forms a pattern of behavior, which threatens to
continue for an indefinite period of time into the future.
For 40 years, Federal, Colorado, and local regulators and elected
officials have been unable to make DOE and the corporate
operators of the Plant obey the law. Indeed, the Plant has been and
continues to be operated by government and corporate employees,
who have placed themselves above the law and who have hidden
their illegal conduct behind the public's trust by engaging in a
continuing campaign of distraction, deception, and dishonesty.
The ongoing nature of the criminal enterprise at the Rocky Flats
Plant has prompted this Grand Jury to take three actions. First, the
Grand Jury has approved indictments against certain current and
former Federal employees, corporate employees, and corporations.
Second, the Grand Jury has made presentments to this Court of
evidence of criminal conduct by certain corporations and persons.
Third, this Grand Jury strongly recommends that the Rocky Flats
Plant be closed as the only means to stop the continuing nature of
these criminal acts.
II. SCOPE OF THE INVESTIGATION
On August 1, 1989, this Court charged this Grand Jury with one
principal function:
The best interests of the people of Colorado and the national
interest has necessitated the summoning of this Special Grand jury
to inquire into criminal activity, if any, at the Rocky Flats Nuclear
Weapons Plant in Jefferson County, Colorado.
Information to Special Grand Jury 89-2, p.2 (D.Colo.Aug.1,1989).
The members of the Grand Jury have taken this charge seriously
and have completed their investigation.
The Grand Jury focused its attention during its term of two and
one-half years on whether any person violated the criminal
provisions of RCRA and the Clean Water Act. The limits of time
and space prevent this Grand Jury from detailing each and every
example of the criminal activity and misconduct at the Rocky Flats
Plant, which has uncovered during the course of the Grand Jury's
investigation. However, the Grand Jury now renders to the Court
this Report, regarding ongoing organized criminal activity at the
Rocky Flats Plant in this Federal Judicial District of Colorado.
This Report is based on the preponderance of the evidence
considered by the Grand Jury.
At the outset, it is important for this Court to understand what the
Special Grand Jury did not investigate, although there may have
been various media and other reports that suggested the Grand Jury
would or should investigate such matters. Specifically, the Special
Grand Jury did not attempt to determine:
(a) whether the criminal and negligent acts at the Plant (including
illegal STD of hazardous and radioactive mixed wastes) pose a
serious health risk to employees of the Plant or area residents; (b)
whether prior, current, or proposed activities (such as restarting
production) at the Plant have been or will be safe; © whether
DOE, Rockwell, EG&G, or any person violated the Clean Air Act;
(d) if the Plant was and is illegally storing significant quantities of
plutonium within certain ventilation ducts located within buildings
at the Plant; (e) whether illegal wiretapping has occurred or is
occurring at the Plant (f) whether beryllium dust, which has
collected within various ventilation ducts throughout the plant,
poses a significant health risk to employees at the Plant or area
residents; (g) whether Rockwell or EG&G have filed false claims
for payment under their contracts with DOE; and (h) whether DOE
and EG&G have been storing radioactive wastes in gloveboxes at
the Plant as a means to avoid exceeding storage limits at the Plant.
Although the Grand Jury heard testimony that radioactive material
had been released from the Plant into drinking water supplies of
various urban users and downstream agricultural users, the Grand
Jury was advised that it could not indict Rockwell or DOE officials
for endangering the public in this manner. The Grand Jury was
specifically advised by an Assistant U.S. Attorney that the United
States Supreme Court had determined in Train v. COPIRG, 426
U.S.1 that no Federal law (specifically the Clean Water Act)
prohibits DOE, Rockwell, or EGG from dumping radioactive
wastes or other radioactive material directly into Standley Lake, the
Great Western Reservoir, the South Platte, or any other river or
tributary of the United States. Consequently, to the extent to which
evidence was presented to the Grand Jury concerning the release of
radioactive material into such waters, it could not be the subject of
a criminal prosecution and such evidence is not discussed further
herein.
III. The Government agencies failed repeatedly in their duty to
protect the public's interest.
A. CDH, DOE, and EPA did not perform adequately their oversight
and regulatory functions.
The pervasive nature of the illegal practices discussed in this report
may leave the Court wondering how such extensive, illegal conduct
could have continued for such a lengthy period of time. Four
factors provide a substantial explanation of how these events
occurred:
(a) DOE managed the Plant with an attitude of indifference toward
environmental laws; (b) DOE actively participated in and directed a
conscious and ongoing effort to evade the application of certain
environmental laws to the Plant; © the Colorado Department of
Health ("CDH") and EPA were lax and ineffective in attempting to
enforce environmental laws and regulations at the Plant; and (d)
Rockwell and it's successor (EG&G) - with the apparent knowledge
of DOE - have excused their illegal conduct by asserting that they
cannot operate the Plant without violating one or more
environmental laws.
B. DOE managed the Plant with an attitude of indifference toward
certain environmental laws.
DOE employees at the Plant followed a policy of minimum
compliance with certain environmental laws during the period from
November of 1980 through June of 1989. DOE did not review nor
monitor Rockwell's budget to assure that the Plant was operated in
compliance with environmental laws and regulations.
DOE exercised oversight at the Plant without displaying a sense of
accountability to the public for compliance with environmental
laws, particularly RCRA and the Clean Water Act. DOE managers
at the Plant, Regional, and Headquarters offices engaged in a
conscious course of conduct to avoid accepting responsibility for
any operations at the Plant. DOE did not seek nor request any
information that might have uncovered evidence of Rockwell's
illegal conduct. During the period from November of 1985 through
the date of the FBI raid of the Plant (June 6, 1989), the DOE Plant
Manager never conducted a staff meeting, which focused solely on
environmental compliance problems at the Plant.
DOE's Plant Manager made false written statements with
knowledge of the falsity of his statements or with a disregard for
knowing whether his statements were false. For example, when the
Plant Manger signed DOE's 1985 RCRA Permit application for the
Plant, he had been working at the Plant less than one week, he had
read none of the Permit application, and he knew virtually nothing
about RCRA. Nonetheless, he signed the Permit application,
although it was a lengthy, complex document, without investigating
the truth or falsity of any statement in the Permit application.
Thereafter, he signed other permit applications, which Rockwell
gave him to sign, although the applications were typically lengthy,
complex documents, and he had insufficient personal knowledge to
certify the statements made in the applications were true.
On those occasions when Rockwell advised DOE officials that
Rockwell might be violating an environmental law or that its
conduct could be challenged by regulatory agencies, DOE officials
either ignored such notices from Rockwell, joined with Rockwell
in rationalizing such conduct, or actively participated in plans to
shield Rockwell from attack and conceal potentially damaging
information from being disclosed to the public or regulatory
agencies. Since this Grand Jury cannot indict a Federal agency for
violating the laws, DOE is identified in this Report and the Grand
Jury's presentments of evidence to this Court of criminal
misconduct, as an unindicted co-conspirator with Rockwell,
EG&G, and certain individuals in an ongoing conspiracy to violate
certain environmental laws of the United States. If the Plant is not
closed, the Grand Jury believes that DOE's involvement with this
conspiracy to violate RCRA and other environmental laws in the
operation of the Plant will continue.
Some of DOE's employees exploited one advantage of being
employed by a Federal agency. They knew that one Federal agency
(EPA) could not impose sanctions against another Federal agency
(DOE) for violating environmental laws. Consequently, these DOE
employees ignored EPA's administrative requests for RCRA
compliance at the Plant. This pattern continues today with DOE
still refusing to consent to the imposition of civil penalties against
the Department, its contractor, or their respective employees for
violating Federal environmental laws, which businesses, state
governments, local governments, and private citizens must obey. In
this sense, the DOE has become a self-regulating agency, which is
above the law and without accountability, except to this Grand
Jury.
C. DOE did not properly perform it's oversight duties.
1. DOE did not emphasize to Rockwell the importance of operating
the Rocky Flats Plant in compliance with environmental laws.
DOE acted as a dependent endorser of Rockwell's illegal conduct
from 1985 through 1989. When DOE appointed a new Plant
Manager in November of 1985, approximately 55 DOE employees
worked at the Plant. Only two of those 55 DOE employees
concerned themselves with environmental and safety issues, and
they only worked part-time in those areas.
2, Rockwell controlled DOE through the flow of information
concerning environmental conditions at the Rocky Flats Plant.
DOE lacked the capability between 1985 and 1989 to gather
sufficient information to confirm independently whether Rockwell
was complying with applicable environmental laws while Rockwell
was operating the Plant. DOE did not attempt to review critically,
verify independently, or evaluate systematically any data,
information, analysis, recommendation, or conclusion, which
Rockwell provided to DOE on environmental matters.
DOE relied exclusively on Rockwell as the source of all
information which DOE provided to the public on environmental
matters. Although DOE was charged with responsibility for
independent oversight of Rockwell's conduct operating the Plant,
DOE acted often as the "puppet" of Rockwell. For example, if
Rockwell wanted to communicate a specific message to EPA,
CDH, a news reporter, or some citizen or public interest group,
Rockwell would usually prepare a "draft" letter for signature by an
appropriate DOE employee, and the DOE employee would have the
"draft" retyped on DOE letterhead and mailed to the person to
whom Rockwell wished to convey it's message.
3. DOE prevented independent authorities from inspecting the
Rocky FlatsPlant.
From January of 1985 though the date of the FBI raid, DOE
routinely denied - on the grounds of "national security" or lack of
jurisdiction - virtually all requests that EPA or CDH made for their
respective employees to inspect the Plant. By using DOE in this
manner, Rockwell was able to shield its operations from
independent inspections to determine its compliance with
applicable environmental laws and to verify the accuracy of
information, which DOE and Rockwell provided to regulatory
agencies in support of various applications for RCRA, the National
Pollutant Discharge Elimination System ("NPDES"), and other
permits. For example, when DOE applied in 1987 for a RCRA
permit to operate a fluidized bed incinerator to burn radioactive
wastes, hazardous wastes, and mixed wastes at the Plant. DOE
refused to allow EPA to inspect the incinerator to determine the
accuracy of statements that Rockwell had made in the permit
application concerning design, performance, and operational
characteristics of the incinerator.
4. Regional DOE managers ignored evidence of environmental
problems at the Rocky Flats Plant.
Regional DOE managers in Albuquerque played bureaucratic
games with Rockwell and local DOE officials. Although DOE's
regional employees instructed Rockwell to obey the laws, they
failed to budget the amounts necessary to comply with RCRA and
other laws, when Rockwell advised them specifically of many of
these needs. Likewise, employees at DOE's regional and
headquarters offices did not follow up on their instructions to
assure that the Plant was operated in compliance with applicable
environmental laws. Quite the contrary, they explicitly discouraged
Rockwell from complying with environmental laws by omitting
environmental compliance from the list of criteria on which the
award of large performance bonus fees were paid to Rockwell
during the period from 1985 through 1989. Significantly, these
large financial incentives (which ranged in the millions of dollars)
could be earned most easily if Rockwell ignored environmental
compliance in striving to meet weapons production goals.
5. DOE continues today to tolerate violation of environmental laws
at the Rocky Flats Plant.
DOE continues today to practice devious techniques of mass
communication. DOE's officially announced policy is that the
"obeying the law is our No. 1 priority." However, DOE is violating
with EG&G numerous environmental laws at the Plant. As
discussed elsewhere in this Report, DOE and EG&G are presently
operating the Plant with full knowledge that a presidential
exemption has not been issued to allow the Plant to continue to:
(a) violate the groundwater monitoring requirement of the Clean
Water Act; (b) continue to store radioactive, mixed waste residues
at the Plant without a RCRA permit or RCRA interim status; ©
continue to store RCRA wastes at the Plant without fully
complying with the procedural requirements for storage of RCRA
wastes at a permitted facility; (d) violate RCRA by generating
mixed wastes in a clean-up effort at the Plant although there is no
permanent storage site for such wastes; and (e) related
environmental crimes as discussed elsewhere in this Report.
D. The government agencies have established no deadline by which
DOE and EG&G must stop breaking the law at the Rocky Flats
Plant.
The headquarters offices of DOE and EPA in Washington, D.C.
have been involved directly or indirectly in the negotiation of each
of the three environmental Federal Facility Compliance Agreements
for the Plant. These agreements were signed respectively in July of
1986, September of 1989, and May of 1991.
DOE has consistently refused to sign any compliance agreement for
the Plant, which contains stipulated fines to be imposed for
specific continuing environmental violations. DOE learned from its
experience before the FBI raid that EPA and CDH are very
reluctant to initiate enforcement proceedings against DOE or its
contractor because such proceedings are labor intensive and
expensive to prosecute. Instead of pursuing DOE on Rocky Flats,
EPA and CDH prefer to dedicate their resources to other matters,
where the opposition to compliance is not so intense, expensive, or
politically charged.
During the negotiation of the 1991 Federal Facilities Compliance
Agreement, DOE employees at the regional and national levels
insisted that DOE would not sign a compliance agreement, which
contained any enforcement penalties for noncompliance with
RCRA and other environmental laws. Throughout these
negotiations, DOE implied that EG&G would resign as the
operator of the Plant if the Agreement contained any such
penalties. Consequently, when EPA's Denver Regional
Administrator refused in the spring of 1991 to sign a proposed
agreement for the Plant because it lacked any stipulated penalties
for noncompliance, EPA's national Deputy Administrator relieved
the Regional Administrator of responsibility for approving the
Agreement.
EPA's Deputy Administrator subsequently negotiated and signed
during the spring of 1991 a two-year Federal Facilities Compliance
Agreement for the Plant. He negotiated the terms of this Agreement
with the White House Counsel and high-ranking political
appointees in Washington, D.C., in the Department of Defense,
Department of Justice, EPA and DOE.
The 1991 Federal Facility Compliance Agreement for the Plant
contains no deadlines by which the Plant must be operated in
compliance with the law. Likewise, the 1991 Agreement lacks any
civil penalties or enforcement mechanisms if DOE and EG&G fail
to remedy the environmental noncompliance problems at the Plant.
E. CDH AND EPA WERE LAX AND INEFFECTIVE IN THEIR
ATTEMPTS TO ENFORCE ENVIRONMENTAL LAWS AND
REGULATIONS AT THE PLANT.
In many respects during the 1980's and through this date, those
government employees who were and are charged with the duty to
protect the public's interest, did not act responsibly. Unless the
government's inspectors and regulators change their focus and act
more aggressively to enforce the law, it is unlikely that the culture
of environmental indifference will change at Rocky Flats.
1. Before the FBI raided the Plant, CDH knew that DOE and
Rockwell were violating environmental laws in their operation of
the Plant.
CDH knew as early as November of 1985 that DOE and Rockwell
had violated and were continuing to violate RCRA and the Clean
Water Act. However, CDH did not publicize this information nor
pursue criminal charges. If CDH had acted then, it may have not
been necessary for the FBI to raid the Plant subsequently and fewer
environmental crimes may have been committed thereafter at the
Plant.
The shortcomings of CDH's regulatory efforts were also
demonstrated by the manner in which CDH exercised its oversight
of the 904 Pad, where thousands of Pondcrete blocks, which
contained radioactive and hazardous wastes, were stored outdoors.
Rockwell first gave CDH notice in December of 1987 through its
revised RCRA Part A Permit application that Rockwell was storing
the Pondcrete blocks on the 904 Pad at the Plant. However, the
CDH employee, who was charged with supervisory responsibility
for this aspect of the Plant, did not become aware that these
thousands of very large Pondcrete "blocks" were there until May of
1988, when radioactive and hazardous liquids first spilled from a
Pondcrete container.
When CDH first became aware that Rockwell was spray irrigating
massive volumes of treated wastewater effluent onto a buried solid
waste management unit ("the east trenches"), which contained a
substantial volume of leaking hazardous and radioactive wastes,
CDH responded in an inappropriate, ineffective method. Instead of
filing criminal charges against Rockwell for this continuing
violation of RCRA and the Clean Water Act, CDH responded
administratively with an exchange of letters of inquiry.
CDH, likewise, did not threaten to start an administrative,
noncompliance proceeding against Rockwell for the continuing
commission of this obvious environmental crime and threat to the
public's health. Instead, CDH's employees placed the information
on this practice in an internal file containing a list of issues, which
CDH intended to discuss with DOE when it applied for a new
NPDES Permit for the Plant. Moreover, the CDH employee, who
was charged with responsibility for regulating this important matter
that could potentially effect Westminster's drinking water, he did
not bother to visit the spray field to determine if Rockwell's spray
irrigation practices complied with the conditions set forth in the
NPDES permit for the Plant.
2. This investigation was prompted by evidence of criminal conduct
that was found in CDH's files.
The FBI initiated its criminal investigation of the Plant in May of
1987, after DOE and Rockwell submitted to CDH a RCRA Part B
Permit application for the Plant. Although there was substantial
information included and excluded from that application to show
that DOE and Rockwell were operating the Plant in violation of
RCRA, CDH did nothing about it. When the FBI subsequently
decided to raid the Plant, the FBI relied primarily on that Permit
application and other documents, which had been and were
subsequently filed with CDH to show that there was probable cause
to believe that criminal acts had been committed by DOE and
Rockwell at the Plant.
3. EPA ignored environmental problems at the Rocky Flats Plant.
EPA's employees, likewise, failed to always act responsibly in
exercising their regulatory authority over the Plant. For example,
EPA learned during the summer of 1988 that Rockwell was
spraying massive volumes of treated wastewater effluent onto the
east trenches. However, EPA waited 18 months (until January of
1990, when EG&G began to operate the Plant) before EPA
bothered to inquire about the appropriateness or legality of this
practice.
EPA made no attempt to stop spray irrigation at the Plant before or
after the FBI raid in June of 1989. Although EPA wrote to DOE in
January of 1990 to request that EG&G discontinue spray irrigation
above the east trenches, EPA did not object to spray irrigation in
the remainder of the east spray field until later in 1990.
EPA has followed a double standard in enforcing RCRA laws in
Colorado. Under direct examination, EPA's regional RCRA
supervisor admitted that EPA would not have permitted a private
enterprise to violate RCRA to the extent and for the duration of the
violations, which have occurred at the Plant. He stated that EPA
would have been substantially more aggressive in seeking
injunctive relief and fines to force a prompt conclusion of such
illegal conduct. However, he asserted that EPA's "enforcement
hands" were effectively tied because EPA was not permitted to
pursue RCRA enforcement through the courts against DOE.
4. CDH and EPA continue to tolerate the accumulation of
beryllium dust in ventilation ducts at the Rocky Flats Plant.
CDH and EPA have focused their regulatory attention with regard
to beryllium dust at the Plant on a single sealed bag of material,
which contained some beryllium dust. The CDH and EPA
regulators took exception to this bag - and only this bag - in
December of 1988 because it was discovered in a closet for which
Rockwell did not have a beryllium storage permit. However, the
regulators from CDH and EPA have not attempted to force DOE
and it's contractors to remove the substantial quantity of beryllium
dust, which they know is resident in the air ventilation duct work
throughout the 400-series and 800-series buildings in the Plant.
In a classic illustrtion of bureaucratic form over substance, CDH
and EPA have elected not to argue with DOE's position on the
beryllium, which remains in the air ducts. Although beryllium dust
is extremely hazardous to human health, DOE has argued that the
beryllium dust in the Plant's ventilation system is exempt from
RCRA regulation because the beryllium has not "been generated"
as a "waste" within the meaning of RCRA. It is therefore in DOE's
opinion, not subject to RCRA regulation, although it is possible
that workers may be breathing the dust and it is possible that the
dust may escape to the atmosphere outside of the Plant.
The negligent treatment by CDH and EPA of the beryllium dust in
the Plant's ventilation duct system illustrates one reason that DOE
and Rockwell were so successful in violating so many
environmental laws for such a long period of time. The
government's inspectors have tended to overlook obvious health
hazards and environmental crimes committed at the Plant because
their focus has been too narrow.
5. DOE can ship to Idaho some of the wastes which are presently
stored illegally at the Rocky Flats Plant.
Subsequent to the FBI raid in June of 1989, the Governor of Idaho
advised DOE that Idaho would no longer permit DOE to ship
additional radioactive mixed waste from Rocky Flats to the Idaho
National Experimental Laboratory ("INEL"), which could legally
store such material and to which Rockwell had shipped such wastes
before the FBI's raid. DOE, EPA, and CDH did not challenge this
unilateral embargo on waste shipments.
When the Governor of Idaho attempted to impose the same embargo
on the shipment of similar radioactive waste from the Public
Service Company's nuclear plant in Platteville, Colorado, the
Public Service Company sued the Governor of Idaho and the Public
Service Company won. The federal judge in the Public Service
Company case held - as the DOE had advised the Governor of
Colorado during 1989 with regard to Rocky Flats - that the
Governor of Idaho did not have any authority to stop such
shipments of the radioactive waste from Colorado to INEL. Despite
the decision in the Public Service Company case and the
continuing illegal storage of mixed wastes at the Plant, DOE,
EG&G and CDH have made no effort to force INEL to again begin
accepting waste shipments from the Plant.
F. GOVERNMENT EMPLOYEES SHOULD BE HELD RESPONSIBLE FOR THEIR CRIMINAL ACTS
AT THE ROCKY FLATS PLANT.
Employees of DOE and other government departments and agencies
defended themselves at various times before this Grand Jury by
asserting four arguments. First, some government employees
asserted that they were immune from prosecution for their criminal
acts. Second, some claimed that they did not personally direct the
illegal STD operations at the Plant and, therefore, they should not
be held accountable for criminal conduct. Third, some government
employees suggested that their incompetent and negligent
mismanagement of the Plant were not crimes. Fourth, many of them
told the Grand Jury that they were ignorant of the law or relied on
faulty legal advice and, therefore, they should not be held
accountable for their criminal acts. The Grand Jury rejects each of
these defenses.
The sovereign immunity of the Federal Government does not
immunize individual government employees from prosecution for
their criminal conduct. Employees of the Federal Government
should be and are subject to the criminal laws of this Nation.
Criminal conduct should never be a part of a government
employee's work. If the government's employees do not obey the
law, we cease to be one nation under the law.
The Grand Jury heard at length from government employees who
said it was not their job to see that the private contractors operated
the Plant in conformance with applicable law. Surprisingly, no
DOE employee was disciplined for any reason after ther FBI raided
the Plant. These bureaucrats placed their emphasis on form or
process over substance. However, the evidence is uncontested that
they ignored repeated warnings from multiple sources that the
Rocky Flats Plant was being operated in violation of numerous
environmental laws. Since these government employees were in
charge of the Plant, and since they took virtually no action to
comply with environmental laws in operating the Plant, they must
be held accountable for their complicity with and toleration of
criminal acts at the Plant.
The root of the problem at the Plant was and continues to be the
negligent mismanagement of wastes at the Rocky Flat Plant. The
negligent STD of wastes at the Plant originated with the DOE's
aggressive efforts to place the Plant and its operators above the
environmental laws by which all other companies must abide. The
Grand Jury believes that DOE feared the regulators would discover
Rockwell's mismanagement of hazardous wastes and radioactive
mixed wastes at the Plant. Yet, the Congress enacted criminal
penalties in RCRA, the Clean Water Act, and other Federal
environmental laws, which have been violated at the Rocky Flats
Plant, with the expressed intent to stop negligent environmental
practices.
It is an elementary principle of law that ignorance of the law is no
excuse for criminal conduct. The Grand Jury specifically rejects the
notion that government employees should be allowed to hide
behind the ill-reasoned logic of a government attorney at the Plant
and other DOE attorneys in Washington, D.C., whose objective
seemed to be to thwart attempts to subject the Rocky Flats Plant to
the rule of law.
PART FOUR
IV. DOE, EG&G, AND ROCKWELL HAVE VIOLATED RCRA
BY ILLEGALLY STORING, TREATING AND DISPOSING OF
HAZARDOUS WASTES AND MIXED WASTES AT TEHE
ROCKY FLATS PLANT.
A. EPA HAS STATUTORY AUTHORITY TO REGULATE DOE
FACILITIES UNDER RCRA.
1. RCRA became effective in November of 1980.
The Resource Conservation and Recovery Act ("RCRA") prohibits
the storage, treatment, and disposal of hazardous wastes at private
and governmental facilities without a permit issued by EPA or an
authorized state government, such as Colorado. 42. U.S.C
S6925(a). See 42 U.S.C. S6961. RCRA allows existing facilites,
such as the Plant, to be treated as having been issued a permit
pending issuance or denial of an actual permit in accordance with
certain procedures, which the statute characterizes as "interim
status." 42 U.S.C. 26925(e)(1). To obtain a RCRA Permit or
RCRA interim status, a facility must submit a RCRA Part A Permit
application and, subsequently a RCRA Part B Permit application,
which must be approved by Federal and/or Colorado authorities.
"Hazardous wastes" are those substances, which may be solid or
liquid, that are listed or otherwise identified as "hazardous wastes"
in the Colorado Hazardous Waste Code. "Mixed wastes" or
"mixed-hazardous wastes" are wastes, which contain both
radioactive wastes and nonradioactive hazardous wastes. "Low
level, mixed wastes" are radioactive wastes containing transuarnic
material at or below 100 noncuries per gram, together with
hazardous wastes.
From November 19, 1980 (the effective date of RCRA), DOE has
been obligated on behalf of its operator of the Plant to apply for a
RCRA Permit for all hazardous waste STD operations at the Plant.
However, DOE has failed to do so.
2. DOE claimed in 1983 that Rocky Flats Plant was completely
exempt from EPA's jurisdiction under RCRA.
DOE has attempted in various ways to thwart the direct application
of RCRA to the Plant. DOE claimed intially that all hazardous
wastes at the Plant were exempt from the RCRA permit
requirements. Subsequently, DOE narrowed its jurisdictional
objection to argue that RCRA did not apply to mixed radioactive
and hazardous wastes, which are commonly known as "mixed
wastes" and which were stored, treated, and disposed of at the
Plant. Finally, during the period from 1987 through 1990, DOE
asserted that RCRA did not apply to "residues," which are one
category of mixed wastes at the Plant.
From the outset, DOE challenged the jurisdiction of EPA to
inspect and regulate DOE's facilities under RCRA. In 1982, DOE
promulgated DOE Order No. 54,880.2 by which DOE attempted to
establish a hazardous waste management program within DOE,
which would parallel and conform to the requirements of RCRA,
except that it would be a self-regulating program that was exempt
from EPA's oversight. In December of 1983, DOE's general counsel
issued an opinion letter in which he expressed his view that RCRA
did not apply to DOE's weapons facilities, including the Plant,
because in his view, they were expressly exempted by certain
provisions of the ATomic Energy Act. However, when an
environmental organization tested DOE's position on EPA's
jurisdiction over hazardous wastes at DOE's Y-12 Plant, which is
located near Oak Ridge, Tennessee, a judge held in the case of
LEAF v. Hodel, 586F.Supp. 1165 (E.D. Tenn. 1984) that purely
hazardous wastes at DOE facilities were regulated by RCRA and
subject to EPA's jurisdiction.
3. DOE asserted in 1984 that mixed wastes at the Rocky Flats
Plant were exempt from RCRA regulation by EPA.
When EPA and CDH attempted in 1984 and 1985 to use the
holding in LEAF v. Hodel as authority for them to exercise
regulatory powers at the Plant, DOE and Rockwell refused to
permit them to inspect or regulate the STD of the hazardous
component of mixed wastes at the Plant because mixed wastes
contain some radioactive matter. In DOE's view, the Atomic Energy
Act gave DOE exclusive jurisdiction over any material, which
contained a radioactive substance, including radioactive wastes that
had been mixed with hazardous wastes. Consequently, Rockwell
and DOE did not disclose to EPA or CDH that mixed wastes were
stored at the Plant, when DOE submitted its RCRA Part B Permit
application to CDH in November of 1985.
4. DOE acknowledged in 1986 that some mixed wastes at the
Rocky Flats Plant were subject to RCRA regulation.
CDH responded to DOE's 1985 Permit application by issuing a
Notice of Deficiency. CDH issued this Notice in December of 1985
because DOE had withheld in its Permit application all information
regarding the STD of mixed wastes at the Plant. During the
following seven months, DOE, CDH, EPA, and Rockwell engaged
in a series of negotiations, which ultimately produced a compliance
agreement in July of 1986. Under the terms of the 1986
Cpmpliance Agreement among CDH, DOE and EPA, DOE did not
submit to the jurisdiction of CDH or EPA the storage treatmwent,
or disposal of transuranic mixed wastes at the Plant. However,
DOE agreed that EPA and CDH had authority to regulate the STD
of low-level, mixed wastes and hazardous wastes at the Plant.
In partial response to DOE's argument on mixed wastes, EPA
subsequently issued a notice, which expressed EPA's view that
RCRA applied to all mixed wastes, as well as hazardous wastes. 51
Fed. Reg. 24504 (July 3, 1986). On May 1, 1987, DOE revised its
position on EPA's authority to regulate RCRA wastes, when DOE
issued it's "By-Product Rule." 10 C.F.R S962.3(b). Under this
Rule, DOE acknowledged that EPA had authority under RCRA to
regulate the STD of the hazardous portion of all mixed wastes at
DOE facilities, including the storage, treatment, and disposal of
transuranic, mixed wastes at the Plant.
5. DOE argued in 1987 that mixed waste residues at the Rocky
Flats Plant were exempt from regulation under RCRA.
Shortly after DOE announced the By-Product Rule, a decision was
announced in American Mining Congress v. EPA, 824 F.2d 1177
(D.C. Cir. 1987). The attorneys for DOE and Rockwell at the Plant
used this decision to deny CDH and EPA access to inspect the
Plant. Instead of following the By-Product Rule, these attorneys
persuaded the DOE and Rockwell plant managers during the
summer of 1987 to assert that the mixed waste residues, which were
stored at the Plant, were exempt from RCRA regulation. These
attorneys argued that, since the residues were being held for
reprocessing and since they were not being "discarded," the
residues at the Plant were not subject to RCRA regulation.
"Residues" are wastes that contain a mixture of some radioactive
material and some hazardous constituents that Rockwell had stored
(and EG&G continues to store) at the Plant at least in theory on the
premise that the plutonium in the residues could be separated from
the mixed waste at some future date and that the recovered
plutonium could thereafter be recycled into a new weapon.
In advancing this interpretation of the American Mining Congress
decision, the local DOE counsel and Rockwell's attorneys ignored
the controlling facts in the court's written opinion. Unlike the
situation in American Mining Congress, the residues at the Plant
were not being immediately reused in a continuous manufacturing
process to extract plutonium for reuse. However, DOE officials at
the Plant in Albuquerque were so obsessed with secrecy and
avoiding any regulation of the Plant's operations by EPA that
DOE's Regional Deputy Manager authorized DOE's Plant Manager
to submit DOE's revised RCRA, Part A Permit application to CDH
during October of 1987 without disclosing any information about
the residues, which Rockwell was then storing at the Plant. DOE
and Rockwell specifically refused to provide CDH with the most
basic information regarding these residues, including: (a) the
number of barrels of residues which were stored at the Plant; (b)
how long any of the residues had been stored at the Plant; and ©
what hazardous materials (if any) were mixed with the radioactive
component of the residues.
6. Judge Babcock ruled in 1990 that the Rocky Flat's residues are
subject to RCRA regulation.
Judge Lewis Babcock of the Colorado Federal District Court held
in Sierra Club v. DOE 734 F. Supp.946 (D.Colo. 1990) that
residues at the Plant are subject to EPA's authority to regulate the
STD of RCRA wastes. Judge Babcock specifically rejected DOE's
argument under American Mining Congress that Plant's residues
were exempt from RCRA.
Judge Babcock distinguished the facts in American Mining
Congress from the circumstances under which residues were (and
continue to be) stored, treated, and disposed of at the Plant. He
noted that the residues at the Plant were not in-process, secondary
materials passing in a continuous stream from one production
process to another in an ongoing manufacturing process. He found
that neither the hazardous waste component nor the plutonium
mixed in the residues was destined for immediate reuse. Instead,
the mixed waste residues at the Plant were (and continue to be)
stored for treatment at some future date when processing may allow
for ultimate recovery of the plutonium.
7. DOE has not requested nor received a Presidential proclamation
exempting DOE from operating the Rocky Flats Plant in
compliance with RCRA.
DOE and it's contractors have stated frequently that it is impossible
for them to operate the Plant in compliance with the applicable
provisions of RCRA. In contemplation of such a situation arising,
the Congress provided in the most recent amendments to RCRA
that DOE and other government agencies could apply to the
President for an exemption from RCRA in the interest of national
security. However, DOE and its contractors have not applied for
nor received a Presidential proclamation to exempt them from the
criminal sanctions, which flow as a matter of law from violations of
certain provisions of RCRA.
PART FIVE
B. DOE AND ROCKWELL VIOLATED RCRA BY ILLEGALLY
STORING, TREATING AND DISPOSING OF RESIDUES AT
THE ROCKY FLATS PLANT FROM 1980 THROUGH 1989.
1. DOE and Rockwell accumulated a 40-year inventory of residues
at the Rocky Flats Plant.
When FBI raided the Plant in June of 1989, the Plant had an
existing backlog of approximately 4,500 drums of residue. Some of
these residues had been "temporarily" stored at the Plant for
plutonium "recovery" for more than 20 years, and the most
optimistic projections suggested that it would then take at least 20
years to process the accumulated backlog of residues and recover
the plutonium in them. These residues included significant
quantities of mixed wastes, which had been collected after a
massive industrial fire destroyed significant portions of the Plant in
1969 and which had been stored continuously thereafter at the
Plant.
After the FBI raided the Plant, Rockwell suspended attempts to
recover plutonium from the residues, which were then stored at the
Plant and which Rockwell had been placing in storage
continuously from at least 1979 forward. No subsequent effort has
been made by EG&G or DOE to extract plutonium from those
residues. All of the residues continue to be stored at the Plant.
2. DOE has never applied to EPA or CDH for a RCRA Permit or
interim status under RCRA to store, treat, or dispose of residues at
the Rocky Flats Plant.
Subsequent to the FBI raid on the Plant, DOE and EPA entered
into two Federal Facilities Compliance Agreements and various
extensions of them. However, neither of the agreements nor any of
the extensions granted DOE, Rockwell, or EG&G a RCRA permit
or interim status to store, treat, or dispose of liquid, low-level,
mixed wastes or solid residues at the Plant. Moreover, as Judge
Babcock noted in his opinion in Sierra Club, it is a misnomer to
refer to these documents as "compliance agreements" because none
of them has ever established a date by which DOE has agreed to
operate the Plant in compliance with RCRA.
3. DOE and Rockwell collected and stored a large volume of
radioactive incinerator ash residues at the Rocky Flats Plant,
although no process has ever existed by which plutonium can be
recovered from these residues.
A substantial portion of the residue, which was stored at the Plant
during Rockwell's management tenure (and which is stored at the
Plant today), consists of mixed waste, incinerator ash. However,
contrary to Rockwell's representations to DOE, other government
agencies, the public, and Judge Babcock in Sierra Club, there is not
now and never has been a treatment process available by which the
plutonium in mixed waste, incinerator ash residue can be separated
from the hazardous ash in which it is encased.
Incinerator ash residues have been collected for decades at the
Plant as the by-product of burning mixed wastes in an incinerator,
which is located in Building 771. In an effort to extract plutonium
from the mixed waste ash, which this incinerator produced. Dow
Chemical (the prior operator of the Plant) expended $50 million in
1971 attempting to develop an effective treatment process for this
mixed waste, incinerator ash. However, Dow's experimental
treatment process was abandoned as a failure shortly thereafter, and
no one has attempted subsequently to extract plutonium from the
large volume of mixed waste, incinerator ash residues, which the
Plant has generated and which are stored at the Plant.
4. Rockwell established and operated a nonpermitted, mixed waste,
permanent storage facility at the Rocky Flats Plant.
By maintaining the fiction that plutonium could be recovered from
the mixed waste, incinerator ash residues, DOE and Rockwell
concealed from regulators and the public what they were really
doing. Rockwell characterized mixed waste, incinerator ash as a
"residue" in the "recycling" or "recovery" process to disguise:
(a) the real status of this hazardous and radioactive waste at the
Plant:
and
(b) an important function of the Plant.
Under Rockwell's management, the Plant took on two new roles.
First, (as discussed in greater detail below) Rockwell "treated" -
within the meaning of RCRA - large volumes of mixed wastes and
hazardous wastes by burning them in an incinerator in Building
771 and reducing them to ashes with a volume less than 10% of
their respective volumes before they were incinerated. Second, by
characterizing the product of this waste treatment process as a
"residue," which was being "temporarily" stored at the Plant
awaiting recovery and recycling of the plutonium, Rockwell
converted part of the Plant into a permanent storage facility for
radioactive and hazardous incinerator ash, because Rockwell knew
that the incinerator ash could not and would not ever be
reprocessed or removed from "temporary" storage at the Plant.
5. Rockwell had several reasons to avoid disclosing the true status
of the residues which were stored at the Rocky Flats Plant.
Rockwell management knew that the residues were being stored
and labelled at the Plant in a manner, which violated several
provisions of RCRA. For example, Rockwell knew that the Plant
lacked sufficient floor space to store the residues in compliance
with RCRA's requirements for separation between storage
containers. Likewise, Rockwell knew from an internal audit that
the residues, which were being stored in a haphazard manner in
Buildings 776 and 777 had improper and inadequate identification
of the contents of the drums and the potential generation of
explosive hydrogen gases within some of the drums containing
mixed wastes. In one storage room alone, more than 1,100 drums
(each with a capacity of 55 gallons) were stored. In another storage
room, several of these 55-gallon drums of residues blocked the
emergency exits because the drums were packed so tightly into the
room. The bottoms of most of these mixed waste residue drums had
rusted and they posed a substantial risk of giving way - and spilling
their radioactive contents into the environment - if they had been
lifted from the ground.
Rockwell management also resisted EPA's authority over the
residues because Rockwell wanted to prevent CDH and EPA from
conducting inspections throughout the Plant and, possibly,
discovering other RCRA operating violations, such as the usage of
the incinerator in Building 771 as a nonpermitted, treatment facility
for hazardous wastes and mixed wastes. Moreover, Rockwell
realized that DOE would have to apply for - and probably could not
obtain - a RCRA Permit to continue storing mixed wastes residues
in what had become a de facto mixed waste, permanent storage at
the Plant.
When EPA gained access to the Plant for inspection purposes, one
of Rockwell's fears was realized. EPA advised DOE and Rockwell
in early 1989 (long before the FBI raided the Plant) that they were
storing land-banned, hazardous solid and liquid wastes at the plant
in violation of RCRA. Many of these wastes were contaminated
with low levels of radioactive material. Despite this clear notice of
a RCRA violation, Rockwell continued to store these hazardous
wastes at the Plant in violation of RCRA's one-year time limit on
the temporary storage of such wastes at the Plant.
6. DOE did not want to pay for the residues to be stored at the
Rocky Flats Plant in accordance with the requirements of RCRA.
The cost of RCRA compliance was a major, motivating factor in
DOE's decision to challenge EPA's authority to inspect and
regulate the handling of the residues at the Plant, DOE did not
want to spend the money, which RCRA would have required EPA
to spend to continue to store the residue drums at the Plant, e.g. the
construction of a residue drum storage facility.
7. DOE does not have to continue storing the residues at the Rocky
Flats Plant.
All of the residues, which have been stored (and are stored today)
at the Plant, could have been shipped to INEL many years ago (and
could be shipped there today). These residues could have been
placed in retrievable storage at INEL for reprocessing when and if a
treatment process is developed for recovering the plutonium from
the residues and it is economically wise to attempt to recover the
plutonium from wuch residues. However, DOE has chosen through
this date to leave the residues in storage at the Plant, although DOE
does not have a RCRA Permit or interim status to store the residues
at the Plant.
8. DOE and Rockwell violated several provisions of RCRA by
treating, storing, and disposing of residues at the Rocky Flats Plant
without having appropriate RCRA permits.
With regard to residues, which have been treated and stored at the
Plant, DOE, Rockwell, and certain employees of each of them
violated RCRA on virtually a daily basis between the effective date
of RCRA and December 32, 1989 (Rockwell's last day managing
the Plant) by:
(a) failing to report to EPA that they were storing the mixed waste
residues at the Plant; (b) storing certain mixed waste residues at the
Plant for longer than one year although there was no technology
available to treat the residues or extract the plutonium from the
residues; © storing certain mixed waste residues at the Plant for
longer than one year although processes were known to exist by
which the hazardous constituent could have been treated and the
plutonium could have been extracted from the residues; and (d)
engaging in the practices discussed in subparagraphs III.B.3,
III.B.4., and III.B.5. above.
Rockwell decided in the fall of 1989 to terminate its contract to
operate the Plant when its National Director of Environmental
Affairs advised the Chairman of Rockwell that any operation of the
Plant would expose the company to criminal prosecution under
RCRA. The Director of Environmental Affairs recommended this
action because RCRA makes it a crime for any person or company
to generate mixed wastes for which there is no permitted,
permanent storage facility. Since no facility in the United States
has a permit to permanently store low-level, mixed waste, Rockwell
violated RCRA, prior to the termination of its contract to operate
the Plant, each and every time that it generated any low-level mixed
waste at the Plant.
C. DOE AND ROCKWELL VIOLATED RCRA BY ILLEGALLY
TREATING AND DISPOSING OF HAZARDOUS WASTES
AND MIXED WASTES THROUGH USE OF A
NONPERMITTED TREATMENT FACILITY AT THE ROCKY
FLATS PLANT.
1. DOE and Rockwell concealed from EPA and CDH that
Rockwell was using an incinerator at the Rocky Flats Plant to treat
hazardous wastes and mixed wastes.
On November 1, 1985, DOE's Acting Plant Manager signed a
RCRA Part A Permit application for the Plant. Rockwell's Plant
Manager signed the same Permit application on behalf of
Rockwell. Both of these men knew or had sufficient information to
know, when they signed this Permit application, that it contained a
substantial misstatement of fact.
DOE and Rockwell represented in this Permit application that the
incinerator in Building 771 was not being used to burn or treat
hazardous waste. However, they knew or should have known at that
time that: (a) Rockwell was burning hazardous wastes and mixed
wastes in the incinerator in Building 771 at that time; and (b) the
incinerator had been used for an extensive period before that date -
and would continue to be used for the foreseeable future - as the
exclusive means at the Plant to reduce the volume of certain
hazardous wastes and mixed wastes, which Rockwell could not
otherwise treat and which DOE and Rockwell would have
otherwise had to ship elsewhere for storage.
CDH and EPA did not know when DOE submitted its RCRA Part
A Permit application in November of 1985 that DOE was burning
hazardous wastes or mixed wastes in the incinerator in Building
771. Since DOE had never advised CDH or EPA that Rockwell was
using the 771 incinerator as a treatment facility for hazardous
wastes and mixed wastes, CDH and EPA had no reason to be aware
that DOE and Rockwell were using a nonpermitted, hazardous
waste treatment facility at the Plant.
2. DOE and Rockwell illegally used the incinerator in Building
771 to treat hazardous wastes and mixed wastes.
Rockwell used the incinerator in Building 771 on a regular basis
from 1980 through 1989, as a treatment facility to reduce the
volume of hazardous wastes and mixed wastes at the Plant.
Although there was a consistently large demand to use the 771
incinerator to burn mixed wastes, Rockwell also used this
incinerator on various occasions (including as recently as February
26, 1989) to burn hazardous wastes, which had no radioactive
components. By burning various hazardous wastes and mixed
wastes in the 771 incinerator, Rockwell reduced the volume of such
wastes by as much as 90%.
DOE and Rockwell knew when Rockwell was operating the 771
incinerator that RCRA required them to have a RCRA Permit or
RCRA interim status to burn hazardous waste or mixed waste.
DOE and Rockwell also knew when Rockwell was operating the
771 incinerator that DOE had never applied for and did not have a
RCRA Permit or RCRA interim status to operate the 771
incinerator as a hazardous waste and mixed waste treatment facility.
However, they chose to ignore these RCRA requirements and they
proceeded from 1980 through 1989 to use the 771 incinerator as
treatment facility to reduce the volume of hazardous materials,
which were stored at the Plant. In the process, they consistently
violated RCRA and released hazardous materials - and potentially
radioactive materials - into the air of metropolitan Denver at levels
substantially greater than those amounts which RCRA allows for
treatment facility incinerators.
3. DOE did not apply for RCRA Permit for the 771 incinerator
because DOE knew the incinerator could not meet RCRA's
standards for a hazardous waste treatment facility.
DOE has never applied for a RCRA Permit or RCRA interim status
to operate the 771 incinerator because the incinerator could not
meet the environmental, operating, and safety standards, which
RCRA imposes on incinerators that are used to burn hazardous
wastes and mixes-wastes. Moreover, DOE and Rockwell knew
from their independent engineering studies that the 771 incinerator
could not be modified to bring it into compliance with RCRA's
requirements.
The 771 incinerator used an inefficient filtering system, which
permitted substantial quantities of hazardous materials to escape
into the atmosphere. The incinerator's operating methods were,
likewise, outdated and inappropriate for such dangerous materials.
For examply, Rockwell employees would start the fire in the
incinerator by first igniting newsprint or some other readily
flammable material outside of the incinerator with a cigarette
lighter or match. The Rockwell employee would then throw the
burning newsprint or other object into the incinerator's combustion
chamber, where the hazardous and radioactive materials would be
burned.
D. DOE AND EG&G HAVE VIOLATED VARIOUS
PROVISIONS OF RCRA SUBSEQUENT TO JANUARY 1, 1990
1. On January 1, 1990, EG&G assumed responsibility for operating
the Rocky Flats Plant in compliance with applicable law.
Rockwell terminated its contract to manage the Plant, effective
December 31, 1989. DOE entered a separate contract with EG&G
to operate the Plant, commencing on January 1, 1990. EG&G
agreed in its contract with DOE to operate the Plant in compliance
with all applicable laws.
2. EG&G has violated and continues to violate RCRA in operating
the Rocky Flats Plant.
Subsequent to the FFBI raid, EPA and DOE produce a series of
reports concerning environmental conditions at the Plant. However,
DOE and EG&G have not corrected all of the violations of RCRA
and other environmental laws, which were highlighted for DOE and
EG&G in those reports. When EPA and CDH have questioned
EG&G's failure to bring the Plant into compliance with these laws,
DOE has typically responded on behalf of EG&G with a report,
which discloses more information about environmental conditions
at the Plant but which does nothing to cure violations of RCRA.
During its management of the Plant, EG&G has not put the Plant in
compliance with RCRA. EG&G has perpetuated many of the
RCRA violations, which prompted the FBI to raid the Plant in
1989.
During questioning before Colorado Federal District Court Judge
Lewis Babcock on August 6, 1991, DOE's counsel in the Sierra
Club case publicly admitted that DOE and EG&G were still
violating RCRA in the improper storage of RCRA wastes at the
Plant. The evidence before this Grand Jury shows that DOE and
EG&G have violated since January 1, 1990 and continue to violate
RCRA in at least the following respects in operating and managing
the Plant:
(a) they are storing 19 categories of hazardous and mixed wastes at
the Plant, which are banned from land disposal and for which they
do not have a RCRA storage permit for RCRA interim status; (b)
they are storing approximately 28,000 gallons of liquid hazardous
and mixed wastes at the Plant, which consist primarily of land-
banned liquid solvents and oil mixtures for which they do not have
a RCRA storage permit nor RCRA interim status; © they are
storing at the Plant large quantities of RCRA land-banned solid
wastes, which contain various hazardous constituents and for which
they do not have a RCRA storage permit for interim storage status;
(d) they are storing at the Plant large volumes of solid, mixed waste
"residues" and for which they do not have a RCRA storage permit
nor RCRA interim storage status; (e) they are storing various solid
and liquid hazardous wastes at the Plant in violation of RCRA's
requirements for spacing, packaging, labeling, and other physical
compliance matters; and (f) they are storing various solid and liquid
hazardous wastes at the Plant without permitting scheduled
inspections of all of the storage areas.
On September 28, 1990, EG&G reported to DOE that it was
storing at the Plant 2,188 drums (i.e. 55-gallon capacity) of mixed
waste residues, 302 cans (i.e. 10-gallon capacity) of mixed waste
residues, 561 drums of radioactive residues in which the hazardous
component (if any) had not been identified. DOE and EG&G did
not have then and do not have now a RCRA storage permit nor
RCRA interim status storage for these residues.
3. EG&G's clean-up efforts at the Rocky Flats Plant have violated
RCRA.
During the more than two-year period of its management of the
Plant, EG&G has engaged in some "clean-up" efforts at the Plant.
Some of these efforts have generated mixed wastes. Since there is
no permitted, permanent storage site for these wastes, EG&G has
violated RCRA when it has generated mixed wastes for which there
is no permitted, permanent storage facility. Further, EG&G has
violated RCRA by storing these wastes at the Plant during its
management of the Plant without having a RCRA Permit or RCRA
interim status to store these wastes there. Moreover, by storing
these additional mixed wastes at the Plant for longer than one year,
EG&G has violated that provision of RCRA, which forbids the
storage of mixed wastes for longer than 12 months at a location,
which does not have a permanent RCRA storage permit or RCRA
interim status.
4. EG&G cannot restart operations at the Rocky Flats Plant
without violating RCRA.
The Rocky Flats Plant cannot be restarted without violating RCRA
and other environmental laws. Any decision to operate the Plant
without a Presidential proclamation exempting operation of the
Plant from compliance with RCRA for the illegal generation and
STD of RCRA wastes would constitute a willful and knowing
violation of the criminal laws of the United States.
E. ROCKWELL VIOLATED RCRA AND THE TERMS OF
DOE'S NPDES PERMIT BY SPRAY IRRIGATING CHROMIC
ACID AND RAW SEWAGE.
1. Rockwell used the STP to treat hazardous waste.
On Thursday morning, February 23, 1989, Rockwell employees
noticed that a green - slightly fluorescent - fluid had begun to flow
into the STP. Although the Rockwell employees did not know what
this unknown liquid was, they did not take any significant,
precautionary measures. Specifically, Rockwell did not attempt to:
(a) divert the unknown fluid into equalization basins and prevent it
from entering the STP; (b) divert their unknown fluid to the B-
Series Ponds after it had passed through the STP; or © shut down
the Plant to diminish the subsequent need to discharge the
contaminated wastewater effluent by spray irrigation or direct
discharge into Walnut Creek.
Rockwell attempted to use the STP to treat the unknown toxic
substance, which was subsequently determined to be chromic acid.
However, since the STP did not have a permit to treat RCRA
wastes and since chromic acid is a RCRA listed hazardous waste,
Rockwell violated RCRA by using the STP to treat RCRA wastes.
2. The chromic acid spill destroyed the STP's ability to treat
sewage.
When the chromic acid began flowing into the STP's settling
basins, the level of turbidity in them increased between one and
four turbidity units. By Saturday morning, the turbidity level
reached seven turbidity units and the STP reached an "upset"
condition. As a consequence, the STP lost it's ability to treat the
Plant's sewage before it was discharged into the B-Series Ponds,
and Rockwell then began discharging partially treated and raw
sewage to the B-3 Pond, where it was then illegally discharged with
the chromic acid into the B-5 Pond and spray irrigated onto the
spray fields.
The elevated level of turbidity in the STP's settling basins indicated
to the operators of the STP that the unknown fluid was a highly
toxic substance. The elevated level of turbidity also indicated that
the unknown substance contained a metal that was killing the
microbiological bacteria in the STP that typically treated and
purified the wastewater effluent.
3. Rockwell spray irrigated the chromic acid to avoid adverse
publicity.
When the wastewater containing the unknown fluid began passing
through the STP, Rockwell decided to spray irrigate the wastewater
effluent, which was contaminated with the unknown fluid, onto the
south spray field because Rockwell did not want to face potentially
adverse publicity from discharging the colored wastewater effluent
directly downstream into the Great Western Reservoir (i.e.
Broomfield's drinking water supply) and because the Plant did not
have sufficient storage capacity to retain all of the chromic acid on
site. Rockwell realized that a substantial quantity of the toxic
liquid would run-off the spray field into Broomfield's water supply
because the spray field was frozen at the time and it was covered
completely with snow and ice.
When DOE learned that the chrome spill had occurred, a DOE
employee requested that Rockwell discontinue spray irrigation
until the foreign substance could be identified. DOE feared that
spray irrigation of the unknown liquid could create a new solid
waste management unit under the irrigated ground. Rockewell
ignored this request and continued to spray irrigate the then
unidentified toxic liquid.
4. Rockwell acted too slowly in determining the identity of the
unknown toxic liquid, which flowed into the STP.
Rockwell acted slowly in identifying what was the chemical
composition of the unknown fluid. Although Rockwell took
samples of the unknown fluid shortly after it entered the STP,
management did not expedite the analysis of the sample.
Consequently, Rockwell did not know until following Monday that
the unknown fluid consisted of chromic acid, which is a RCRA
listed waste. A subsequent audit determined that 30.4 pounds of
chrome were missing and presumed to have been part of the
chromic acid spill.
Chromic acid, which contains hexavalent chrome, is a toxic and
hazardous substance. Rockwell negligently failed to maintain and
implement adequate spill detection control and containment
procedures and equipment in Building 444, where the chromic acid
spill occurred on February 22.
5. Rockwell failed to promptly advise the regulatory agencies and
surrounding communities that the chrome spill had occurred.
Rockwell did not advise DOE that the chrome spill had occurred
until two days after it happened. Rockwell waited until Tuesday,
February 28 to advise CDH and EPA that the chrome spill had
occurred.
During the chrome spill incident, Rockwell disregarded the
potential effect of its actions on the surrounding communities and
the environment. Rockwell did not advise Broomfield,
Westminster, CDH, or EPA of the toxic spill, the spray irrigation
of a toxic substance in an area supplying Broomfield's drinking
water, or the discharge downstream from the spray irrigation fields
of partially treated or raw sewage. Rockwell waited until after the
toxic liquid had passed completely through the STP and the
untreated sewage had been sprayed onto the spray fields before
Rockwell advised the regulatory authorities of the problem.
6. Rockwell violated RCRA and the Clean Water Act in several
respects during the chrome spill incident.
When Rockwell sampled the B-Series Bonds into which unknown
fluid flowed before it was spray irrigated, Rockwell discovered that
the concentration of chromium in the water being discharged from
Pond B-3 to Pond B-5 was as much as four time greater than the
level considered to be safe for drinking water. This circumstance
violated the conditions of DOE's NPDES Permit for the ponds.
Rockwell violated RCRA and the Clean Water Act (33U.S.C.S
1342) during and after this multi-day series of events in at least the
following respects:
(a) Rockwell disposed of a hazardous substance (within RCRA's
definitions) through spray irrigating it onto the land without having
a RCRA Permit or RCRA interim status to dispose of chromic acid
in that manner; (b) Rockwell used the STP to treat a hazardous
substance (the chromic acid) although Rockwell did not have a
RCRA Permit or RCRA interim status to use the STP as a
hazardous waste treatment facility; © Rockwell violated the terms
of DOE's NPDES permit by failing to apply good engineering
practices, i.e. spray irrigating the chromic acid and raw sewage onto
a frozen ice field from which sheet run-off occurred; (d) Rockwell
violated the terms of DOE's NPDES permit by discharging water
from the B-3 Pond into the B-5 Pond, when the water had a
concentration of chromium in it, which wa greater than the amount
permitted by the NPDES permit; (e) Rockwell negligently violated
conditions and limitations in the NPDES permit by discharging and
releasing non-sanitary industrial wastes to the STP; (f) Rockwell
bypassed facilities necessary to maintin compliance with the Plant's
NPDES permit; and (g) Rockwell violated RCRA by creating a
new solid waste management unit in the area in which it sprayed
the chromic acid.
PART SEVEN (final section)
V. ROCKWELL AND EG&G HAVE OPERATED THE PLANT
IN VIOLATION OF THE CLEAN WATER ACT WITH A
DEFICIENT GROUNDWATER MONITORING SYSTEM.
Rockwell operated the Plant through 1989 with a groundwater
monitoring system that violated the Clean Water Act. From March
of 1985 forward, DOE and Rockwell management knew that the
Plant had significant Clean Water Act deficiencies including:
(a) the placement of groundwater monitoring wells at the Plant; (b)
the means by which the groundwater monitoring wells had been
constructed at the Plant; and © the unreliability and limited scope
and length of sampling data obtained from the groundwater
monitoring wells.
The groundwater monitoring wells at the Plant in 1985 had been
designed and constructed to detect the presence of radioactive
material in the groundwater. However, those wells were not
adequate to satisfy the RCRA requirements for monitoring changes
in the extent of the contamination of the groundwater.
EPA discovered in 1985 for the first time that DOE and Rockwell
were violating their prior certificate of compliance for groundwater
monitoring. However, when EPA became aware of this condition, it
did not bring an enforcement action to require DOE to drill and
operate a sufficient number of appropriate wells to monitor the
expanding plume of contaminated groundwater at the Plant.
A report in December of 1985 by Rockwell consultant stated that
Rockwell could not obtain and did not have enough data from the
existing groundwater monitoring wells to comply with the law. This
consultant also criticized the construction and location of these
wells, and the consultant recommended that Rockwell plug the
existing wells and start over with a new system of grounwater
monitoring wells.
In July of 1986, an Assistant Secretary of DOE was advised by
DOE staff member in a memorandum that the Plant was being
operated in violation of the groundwater monitoring requirements
of the Clean Water Act. However, prior to the FBI's raid of the
Plant in June of 1989, no one in DOE's headquarters office had
directed DOE's regional or Plant managers to bring the Plant into
compliance with the statutory and regulatory requirements for
groundwater monitoring.
During 1986 and 1987, Rockwell constructed 136 groundwater
monitoring wells, but these wells were not constructed in a manner
and in locations sufficient to satisfy the requirements of the law.
On December 30, 1987, CDH advised Rockwell in writing of the
specific deficiencies with the Plant's groundwater monitoring
system.
In 1988, DOE performed an internal audit on the risks, which its
various facilities posed to public health. At the time, DOE rated the
extensive contamination of the groundwater at Rocky Flats as the
number one environmental hazard among all of the DOE's facilities
throughout the United States. The DOE reached this conclusion
because the grounwater contamination was so extensive, toxic, and
migrating toward the drinking water supplies for the Cities of
Broomfield and Westminster, Colorado.
EG&G has not significantly improved groundwater monitoring at
the Plant during the period while EG&G has operated the Plant, i.e.
January 1, 1990 through the present. EG&G operates the Plant in
violation of the groundwater monitoring requirements of the Clean
Water Act.
VI. DOE AND ROCKWELL CONSPIRED TO VIOLATE
ENVIRONMENTAL LAWS.
From the perspective of this Grand Jury, Rockwell and DOE were
indistinguishable co-conspirators in violating RCRA, the CWA,
and other environmental laws, regulations and agreements.
Rockwell used DOE as a shield against environmental reporting,
regulation, compliance, and enforcement.
Rockwell conspired with certain DOE officials over a period of
years to hide its illegal acts and the illegal acts of its employees
behind the sovereign immunity of a department (DOE) of the
Federal Government. Some DOE employees, likewise, became a
law unto themselves and attempted to immunize themselves from
prosecution by hiding behind the sovereign immunity of the U.S.
Government.
Certain Rockwell employees conspired to persuade DOE's Plant
Manager and other DOE employees to endorse their illegal acts as
the official DOE policy. Further, they drafted correspondence and
reports for DOE's approval, which approved of many of Rockwell's
illegal acts and, thereby, set in motion the process for them to
subsequently argue that the defense of estoppel by entrapment bars
prosecution of Rockwell, Rockwell's employees, and DOE's
employees. In the process, Rockwell attempted to immunize itself,
its employees, and DOE's employees from subsequent prosecution
for violating the environmental laws of the United States while
operating the Rocky Flats Plant.
Rockwell controlled all of the material information, data, and
analysis regarding environmental matters at the Plant. Since
Rockwell often failed to disclose all of the relevant facts to DOE's
employees, Rockwell and its managers were able to consistently
manipulate and control DOE policy to assure that DOE endorsed
Rockwell's illegal conduct in pursuit of very large bonus and
contract fee awards. To the extent to which DOE may have
authorized Rockwell to break the law, DOE acted more often than
not at Rockwell's direction and after Rockwell had independently
formed an intent to break the law.
The pervasive nature of the conspiracy between DOE and Rockwell
may be the best illustrated by the means in which bonus fee awards
for Rockwell were determined semi-annually at the Plant. During
the period from 1986 through 1989, Rockwell semi-annually
prepared for DOE's office at the Plant, recommended bonus fee
award reports. In virtually every circumstance, the DOE Plant
Manger would then adopt with almost no changes the
recommended bonus fee report-as his report-to justify paying a
bonus fee award to Rockwell. In determining the amount of bonus
to be paid to Rockwell, the DOE Plant Manager relied almost
exclusively on Rockwell to supply the information and suggested
grades for each category on which the amount of the bonus fee
would ultimately be determined.
The DOE Plant Manger would then return the recommended report
to Rockwell for minor revisions consistent with his reaction to
Rockwell's suggested report. When Rockwell had revised the report
to the satisfaction of the DOE's Plant Manager it would submit the
revised bonus fee report to DOE's Albuquerque office on DOE
letterhead, as his recommended bonus fee award for Rockwell for
that six-month period. DOE's Albuquerque office would then
rubber-stamp the report and bonus fee awawrd recommendation,
which Rockwell had generated for DOE's Rocky Flats Manager.
The Federal Facility Compliance Agreements between DOE and
EPA and the operating contract between DOE and EG&G have
essentially duplicated the circumstances, which existed before the
FBI raided the Plant. DOE has continued through the negotiation
and implementation of these Agreements to thwart the efforts of
EPA and CDH to bring the Plant into compliance with applicable
environmental laws. Likewise, DOE has continued to attempt to
shield its contractor's illegal acts behind DOE's shield of sovereign
immunity, as a means to avoid the imposition of civil penalties
against DOE and its contractor. As the situation before the FBI
raided the Plant in June of 1989, DOE continues to direct and
endorse this course of illegal activity in violation of applicable
environmental laws and in the name of political expendiency. It is
primarily for this reason that this Grand Jury has recommended that
the Rocky Flats Plant be closed.
PART SIX
F. ROCKWELL ILLEGALLY STORED AND TREATED LIQUID
MIXED WASTES IN A CLOSED RCRA TREATMENT
FACILITY.
DOE's 1985 RCRA Part A Permit for the Plant permitted DOE and
Rockwell to use three solar evaporation ponds for the storage of
liquid mixed wastes in an "emergency" situation, such as a major
spill, ruptured storage tank, or other event that posed a serious
threat to himan health or the environment. However, this Permit did
not allow DOE and Rockwell to use the solar evaporation ponds as
a regular STD area for production process wastes containing
hazardous and radioactive materials.
DOE and Rockwell used Solar Evaporation Pond 207-C on no less
than 15 non-emergency occasions during 1986, 1987, and 1988 for
the storage, treatment, and disposal of liquids containing mixed
wastes, which were known as concentrate salt brine and which
resulted from various liquid waste treatment processes in Building
374. Concentrated salt brine is a characteristic, corrosive,
hazardous waste, which has a pH that is equal to or greater than
12.5. Concentrated salt brine also contains various listed hazardous
wastes, including acetone, methylene chloride, benzene, and
toluene.
On April 4, 1986, Rockwell pumped 25,000 gallons of mixed
liquid wastes into Pond 207-C, and Rockwell deposited 15,000
gallons of hazardous liquid wastes there on August 12, 1987. On
November 15, 1987, Rockwell stored 18,331 gallons of liquid
mixed wastes in the same pond, and the same event occurred with
11,231 gallons of mixed liquid wastes on February 20, 1988.
Although the Plant's records are incomplete, they show that liquid,
mixed wastes were illegally deposited, treated and stored in Pond
207-C as late as April 8, 1988.
The concentrated salt brine, which was deposited in Pond 207-C
would be treated by solar evaporation. The liquid component of the
material would evaporate over a period of time and leave a solid
mixed waste in the Pond. In the process, the concentrated salt brine
would be treated and stored - within the definition of those terms
under RCRA - in Pond 207-C.
DOE and Rockwell did not have a RCRA permit or interim status
to treat and store concentrated salt brine in Pond 207-C during the
period from 1986 through 1988. DOE and Rockwell never applied
for a RCRA permit for these purposes because they knew that Pond
207-C could not comply with the minimal technology standards
that were required by the 1984 amendments to RCRA. Specifically,
they knew that RCRA required and DOE would not pay for the
Pond to have a leachate collection system and a double liner before
it could be used to treat and store hazardous waste or mixed waste.
Since Pond 207-C was not a RCRA permitted operating unit
during this period, DOE, Rockwell, and various Rockwell
employees violated the conditions of DOE's RCRA Part A Permit,
when they stored, treated and disposed of these hazardous liquid
wastes in Pond 207-C. At the time at which each of these transfers
occurred, the Solar Evaporation Ponds were marked with signs,
which stated clearly that the Ponds were "under closure" and that
the Ponds should not be used for any purpose. At the time at which
each of these transfers into the Ponds occurred, the Plant was not
operating under a "state of emergency".
Rockwell employees transferred the hazardous liquid wastes into
the Solar Evaporation Ponds upon the specific approval of high-
ranking Rockwell managers. Before any of the hazardous liquids
was transferred into Pond 207-C, the transfer of the hazardous
fluids had to be approved by Rockwell managers. The process of
approval required between two and three days to complete. Some
requests to transfer the mixed waste into Pond 207-C were denied
by Rockwell managers.
G. ROCKWELL VIOLATED RCRA BY ILLEGALLY STORING
THOUSAND OF PONDCRETE AND SALTCRETE BLOCKS
OUTDOORS.
From 1986 through June 10, 1989, DOE and Rockwell
manufactured a total of more than 17,000 Pondcrete and Saltcrete
blocks. Rockwell stored these blocks outdoors on asphalt pads,
which are known as the 750 Pad and the 904 Pad. DOE officials in
the headquarters office in Washington, D.C. and the regional office
in Albuquerque, New Mexico were directly involved in the
decision to produce and store Pondcrete and Saltcrete at the Plant.
Pondcrete is a mixture of cement and sludge from a surface
impoundment at the Plant, which is called Solar Evaporation Pond
207-A. Sludge from Pond 207-A was treated and Pondcrete was
manufactured in Building 788 into large rectangular blocks. Each
of the Pondcrete blocks weighed between 1,500 pounds and 1,800
pounds. Pondcrete is a low-level mixed waste, which contains both
characteristic and listed hazardous wastes, including EP toxic
cadmium wastes, methylene chloride and acetone.
Saltcrete is mixutre of cement, salts, and salt brine from liquid
waste treatment processes in Building 374. Salts and salt brine
were treated and Saltcrete was manufactured into rectangular
blocks in Building 374. A Saltcrete block could weigh between
1,500 pounds and 3,000 pounds. Saltcrete is a low-level, mixed
waste, which contains various hazardous wastes, including acetone,
methylene chloride, benzene, and tuluene.
In the manufacturing process, water and the raw materials for either
Pondcrete or Saltcrete would be mixed together and then poured in
a slurry form into a large cardboard box, which had plastic liner in
it. After the box had been filled with the "crete" slurry, the plastic
liner and the box would be closed. The Pondcrete or Saltcrete
would then be moved to outside storage on the assumption that the
Pondcrete or Saltcrete would soon thereafter harden into a solid,
monolithic block. As many as three boxes might be stacked on top
of each other outside, and they would only be covered by a tarp.
Rockwell and DOE intended originally in 1986 to store the
Pondcrete and Saltcrete blocks at the Plant for no longer than six
months before they would be shipped to NTS for permanent
underground storage. The Pondcrete and Saltcrete blocks were
supposed to harden into concrete monoliths that could be placed in
trenches at the Nevada Test Site and be buried there forever without
endangering the environment. The first batches of these blocks
were stacked six high under the Nevada desert. When NTS learned
in 1987 that Pondcrete contained some land-banned substances,
Rockwell stopped the Pondcrete and Saltcrete shipments to NTS,
and thousands of Pondcrete and Saltcrete "blocks" began to
accumulate on the outdoor pads at the Plant.
Rockwell was unable to make the Pondcrete and Saltrete harden
into solid blocks. After Rockwell first discovered this problem in
1987, Rockwell increased the amount of cement which was used in
each mixture, and Rockwell instituted new measures to exert better
control over the manufacturing process. However, these
modifications in the mixture and manufacturing process did not
correct the problem. The Pondcrete and Saltcrete blocks continued
to take the form of "mush" or "Play-doh". Under exposure to the
elements outdoors and the crushing weight of one or more blocks,
many of the cardboard containers collapsed and other boxes
deteriorated significantly. In some cases, the plastic liner inside a
box would rupture, and the Pondcrete or Saltcrete would then be
released in a fluid or powdery form as a "spill" of hazardous and
radioactive materials onto the asphalt pads. From there, the wind
and rain carried the Pondcrete and Saltcrete constiutents into the
drainage area for the B-Series Ponds.
Rockwell informed DOE management at the Plant when the first
spill of mixed waste from one of the Pondcrete containers occurred
during May of 1988. However, DOE did nothing in response until
April of 1989. DOE did not give Rockwell permission to reprogram
any of its money to reprocess the mushy Pondcrete or to diminish
the potential that additional spills would occur. Likewise, DOE
denied Rockwell's request for additional money to build protective
structures in which the Pondcrete boxes could be sheltered from
exposure to further deterioration caused by the brutal outdoor
weather fluctuations at the Plant.
In storing Pondcrete and Saltcrete at the Plant, DOE and Rockwell
did not comply with RCRA's interim status storage requirements
and regulations. 42 U.S.C. S6928(d)-(2)©. In storing and treating
Pondcrete and Saltcrete at the Plant, DOE and Rockwell violated
the Colorado Hazardous Waste Regulations for interim status
storage regulations in the following respects:
(1) they failed to minimize the possibility of any unplanned,
sudden, or non-sudden release of hazardous wastes or constituents
into the air, soil, or water, which would threaten human health, the
environment, or both:
(2) they failed to handle and store the blocks and their cardboard
containers in a manner that would prevent them from rupturing or
leaking;
(3) they failed to take remedial action to remedy deterioration and
malfunction of equipment and structures; and
(4) when they discovered that the Pondcrete and Saltcrete
containers had begun to leak, they failed to transfer such wastes to
containers in good condition.
H. ROCKWELL VIOLATED RCRA AND THE CLEAN WATER
ACT BY ENGAGING IN INAPPROPRIATE SPRAY
IRRIGATION PRACTICES.
On May 26, 1984, the EPA issued a National Pollution Discharge
Elimination Systems ("NPDES") permit to DOE for the Plant. The
permit set specific limits under the Clean Water Act on the kinds of
water discharges that the Plant could make, where the discharges
could be made (a/k/a/outfalls), and the amounts of specific
pollutants that could be discharged from certain outfalls. The
NPDES Permit allowed direct discharge downstream from the Plant
and into Walnut Creek only from the outfall at Pond B-5.
Rockwell practiced spray irrigation on the East Spray Field to
dispose of water from the B-3 Pond, which received treated
wastewater effluent directly from the STP, and, thereby, diminish
the need for the Plant to discharge from Pond B-5. Rockwell spray
irrigated an average of 68 million gallons of treated wastewater
effluent onto only 17 acres of land during 1987, 1988 and 1989,
which was far in excess of the amount of fluid, which the ground
could absorb or which could be expected to evaporate into the air
without discharging off-site into the waters of the United States.
Rockwell practiced spray irrigation in part out of fear that the
public might react adversely if as much as 250,000 gallons of
treated wastewater effluent per day flowed downstream from Rocky
Flats into the drinking water supplies for Broomfield and
Westminster, Colorado. Rockwell spray irrigated the treated
wastewater effluent without prior testing to determine if the
effluent contained unhealthy concentrations of any substance.
Rockwell was totally committed to the goal of avoiding any direct
discharge of wastewater effluent downstream. Consequently,
Rockwell spray irrigated the effluent, if the irrigation system was
working.
Rockwell's spray irrigation practices resulted in sheet run-off of the
sprayed effluent into Woman Creek and Walnut Creek, which
ultimately flowed downstream to municipal water collection basins.
During the driest months of the summer, no more than 35% of the
water, which was spray irrigated, was absorbed into the ground on
the Plant site. The remaining volume of the treated wastewater
effluent continued downstream to Standley Lake and the Great
Western Reservoir. During the winter months, Rockwell continued
the spray irrigation even during blizzards, when the ground was
covered with snow and ice, and it was impossible for any of the
treated wastewater effluent to penetrate the surface of the ground.
Massive "ice castles" were formed around these agricultural spray
irrigation devices at those times, but the flow of irrigation water
seldom stopped.
The Rockwell manager, {who was responsible for supervising
operation of the spray irrigation system,} recommended to
Rockwell's upper management that Rockwell should stop its
practice of spray irrigating the wastewater effluent when the spray
fields were frozen. However, Rockwell's upper management ignored
this recommendation and directed that spray irrigation continue
regardless of the meteorological conditions which might be present.
EPA never inspected the spray irrigation system at the Plant nor
any records for operation of the spray irrigation system. If EPA had
inspected the records or if EPA had inspected the spray fields, EPA
would have discovered what would have been obvious.} Rockwell
was engaging in spray irrigation as a means to avoid reporting
discharges of its treated wastewater effluent downstream.
{Likewise, EPA would have realized that Rockwell was spraying
72 times more water onto the spray fields than they could absorb
under ideal circumstances. EPA would have also learned from an
inspection of the records or the spray fields that Rockwell was
spray irrigating at times when it would have been impossible for
any of the sprayed water to have evaporated or infiltrated into the
ground before it migrated off of the Plant site.
Rockwell followed a continuous practice from 1984 through 1989
of spray irrigating massive quantities of treated wastewater effluent
onto an area known as the "east trenches." The "east trenches" are a
group of old waste disposal sites at the Plant. They are located east
of the production buildings and on the north and south sides of the
East Access Road. The east trenches contain approximately
275,000 tons of uranium-contaminated sewage sludge, 300
flattened uranium-contaminated drums, various plutonium-
contaminated debris, and volatile organic compounds.
By spray irrigating over the east trenches, Rockwell flushed
unknown quantities of radioactive and hazardous materials into the
underlying groundwater and greatly expanded the plume of
contaminated groundwater, which lies under the ground in that area
of the Plant. This practice also accelerated the migration of the
contaminated groundwater downstream in the direction of Standley
Lake.
Rockwell knew in 1987 that is practice of spray irrigation was
resulting in immediate downstream surface run-off (i.e. sheet flow
run-off) of the treated wastewater effluent that was being sprayed
into Woman and Walnut Creek. Rockwell and DOE never
disclosed to EPA that its spray irrigation practices and procedures
were resulting in this run-off into Woman Creek and Walnut Creek
when Rockwell's Director of Plutonium Operations received a
written report on this in 1987, he took no action to avoid or
discontinue the surface run-off of the spray irrigated wastewater
effluent.
DOE's Plant Managerreported to his regional supervisor in March
of 1989 that Rockwell's practice of spray irrigating its treated
wastewater effluent was resulting in muddy conditions and
sloughing of the land surface because the ground was being
oversaturated. However, neither the Plant Manager nor his
supervisors ordered Rockwell to discontinue its spray irrigation
practices.
Rockwell exploited the EPA's use of vague and ambiguous terms
which the EPA chose not to define in the NPDES permit for the
Plant. For example, EPA directed DOE and Rockwell to engage in
spray irrigation of the STP's wastewater effluent in a manner
"consistent with good engineering practices." However, EPA never
defined what was meant by this phrase.
Under the Rockwell standard operating procedures, spray irrigation
was being conducted in accordance with "good engineering
practices," did not give any consideration to whether the effluent,
which was being sprayed, was toxic, nor did it consider whether the
spray field could absorb the effluent without resulting in a direct
discharge of the effluent through sheet run-off of the effluent or
seepage of the effluent at some point slightly downstream from
where the effluent intially infiltrated into the ground. Likewise, the
Rockwell definition of "good engineering practices" gave no
consideration to whether the practice of spray irrigating in a
particular circumstance would result in the effluent bypassing some
or all of the outfall discharge points at the Plant at which the EPA
had authorized Rockwell to discharge the effluent.
Rockwell's practice of spray irrigating its treated wastewater
effluent violated the conditions of its NPDES Permit and RCRA in
the following respects. First, the large volume of water, which ran
directly off the steeply pitched hillsides and beyond the designated
outfalls at the B-5 Pond and C-2 Pond consituted unauthorized
discharges into the waters of the United States. Second, some
unknown volume of the water, which was spray irrigated, entered
into the ground and resurfaced as "seeps" discharging into the
waters of the United States. Third, spray irrigation moved some of
the effluent from one collection pond to another collection pond,
where the discharge standards were substantially more lenient and,
thereby, illegal bypassed a discharge point. Fourth, the massive
volume of spray irrigation on a relatively small parcel of land
violated a condition of the NPDES permit that spray irrigation
could occur if and only if it was "consistent with good engineering
practices." Since it was impossible for the ground to absorb the
large volume of treated wastewater effluent, which was spray
irrigated onto it, the practice of spray irrigation at the Plant violated
"good engineering practices." Fifth, the practice of spray irrigating
over the "east trenches" (i.e. the western portion of the south spray
field) was consistent with good engineering practices and,
therefore, a violation of the NPDES permit, because it recharged a
solid waste disposal site with additional water.
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