Full Body Burden (49 page)

The courtroom is perfectly still. The judge’s final words hang in the air for a silent moment before the room erupts.

The jury finds that the DOE, the Dow Chemical Company, and the former Rockwell International Corp. have been negligent and caused damage to properties surrounding Rocky Flats.
They award punitive damages of $110.8 million against Dow Chemical and $89.4 million against Rockwell, with an additional $177 million in actual damages levied against each company, for a total judgment against the companies of $554.2 million.

The other plaintiffs’ attorneys rise and turn to hug their clients. Nordberg is stunned. His spirits soar. It’s a David-and-Goliath moment.

David Bernick jumps to his feet, filled with indignation. He begins shouting at the jurors, questioning their motives and values. For a moment the noise stops and the courtroom is shocked. This is not normal procedure. The jurors don’t know how to respond. Peter recovers his composure and stands to object. The judge sides with him, quiets the courtroom, and tells the jurors that they are excused.

Some of the original parties to the litigation have died. Others have moved away. Those who remain, those who have just heard the verdict, can hardly believe their ears. They were all present for every day of the trial. “It was a no-brainer,” says Bini Abbott. “I was worried about the health situation. I had some crippled animals born, and I wanted to find out if Rocky Flats was responsible.”
Bini herself has had cancer. She’d known Lloyd Mixon, who owned the infamous crippled pig named Scooter and had since moved away.

The press is waiting for them outside on the courtroom steps, cameras flashing. Merilyn Cook, the local ranch owner whose name is on the case, smiles broadly into the bright Colorado sunshine.
“It’s a tremendous verdict,” she says. “It just feels wonderful.” Merrill Davidoff, the Berger lawyer who led the case for the plaintiffs, tells the press, “I think the jury was outraged at the contempt which Dow and Rockwell showed for the community.”

Dow’s general counsel, Charles J. Kalil, releases a formal statement saying, “The jury’s verdict is disappointing as numerous independent scientific studies have concluded that there is no past, present or future public-health threat.” David Bernick is abrupt in his comments to the press. “We don’t think that this was at all a fitting end to a very long and important legal process,” he says. “And we’re going to appeal.”

No one seems to be listening to him.

One person who’s not present to hear the verdict is plant manager Mark Silverman, who was awarded the Presidential Distinguished Rank Award by President Clinton before he died of an inoperable brain tumor in May 2005.

Peter walks out of the courtroom and calls Mykaila. She’s not home, so he leaves a message—a message that she tells him later “sounds much more ebullient than your usual Scandinavian self!” She’s thrilled that the case has ended well, and happy that Peter will finally be coming home.

There is talk among the plaintiffs and attorneys of going out for a glass of champagne to celebrate twenty years of work. But people are tired, physically and emotionally. Many of them trickle off, one by one, to their homes and hotel rooms. Peter stays to have a drink or two with those who remain, and then flies home, finally, to Philadelphia. The euphoric feeling never goes away.

I
CAN
’
T
physically be in that courtroom, but I’m glued to the television and news reports. My search for a university teaching position has taken me to Tennessee, where I’m teaching at the University of Memphis. Sean and Nathan are in high school. Rocky Flats feels far away and yet just as near as ever.

My family is ineligible for compensation. My parents sold our house—for a fraction of its value—just months short of the parameter date established by the lawsuit. We will never see a cent. But that doesn’t matter. My siblings and I never believed this day would actually come.

I call my sister Karma, who’s now living in New Mexico and working as an environmental soil scientist. There’s a moment of silence on the phone as we both fight back tears.

A
FTER ESTIMATING
in 1995 that it would cost upwards of $36 billion and take seventy years to clean up Rocky Flats, the DOE is faced with a dilemma. The technology for a thorough cleanup is limited, and the amount of money and time it will take to clean up Rocky Flats to anything close to “background level,” or anything resembling the natural condition of the site before the facility was built, is much more than they’re willing to pay.

Simply admitting that mistakes have been made and closing the site permanently to public access isn’t an option, either, partly for political reasons. It’s prime development land, surrounded by even more prime development land, just minutes away from Denver and Boulder, with a great view of the mountains. New homes, communities, malls, and roads are springing up all around Rocky Flats. No one wants to think about plutonium anymore. And the DOE isn’t interested in designating any of the former nuclear weapons sites as “national sacrifice zones,” as some scientists have recommended.

So the DOE, the EPA, and the CDPHE change their minds. Or, rather, they change their standards. In 1995 the DOE signs a contract with Kaiser-Hill to begin cleanup at Rocky Flats. EG&G will be phased out. They make a deal with Congress to impose limits on the cleanup. This agreement, renewed in 2000, sets a deadline of December 2006 and dictates that cleanup and closure activities cannot exceed $7 billion. Instead of basing site cleanup levels on what would be considered safe for people to live or work on, they choose, as a model, a person who would most likely spend only a few hours a week on a wildlife refuge site: a wildlife refuge worker. This mature adult would have very limited exposure to the air, water, and soil. The equation doesn’t take into consideration refuge visitors, or residents or businesspeople, or small children—children are especially vulnerable—who might spend longer periods in the area. Surely, they say, we can clean the site up well enough that a part-time seasonal wildlife worker’s chance of growing ill or developing cancer might be a little higher than average, but not unacceptable, all things considered.

But how clean is clean? Exactly how much residual plutonium will remain in the soil? In 1996, as part of the Rocky Flats Clean-Up Agreement—a legally binding agreement for site remediation—the DOE, EPA, and CDPHE put forth interim radionuclide soil action levels (RSALs) for plutonium and other radionuclides. The RSALs will determine how much radioactive material will have to be removed and how much can remain on the site. If contamination levels are below the RSAL, no action will be taken.

Even the most cynical observers are surprised when the RSALs are announced. The legally binding standard the government intends to adopt for cleaning up plutonium in the soil on the Rocky Flats site is 651 picocuries per gram of soil, significantly higher than at any other site in the United States.

There will be no cleanup of off-site soil.

How does 651 picocuries per gram of soil at Rocky Flats compare to other plutonium-contaminated sites?
The bomb test sites at Enewetak Atoll and Johnston Atoll in the Pacific Ocean are lower, at 40 and 14 picocuries per gram of soil, respectively. The Livermore National Lab in California is at 10 picocuries per gram of soil. Fort Dix in New Jersey is at 8 picocuries per gram of soil. A portion of the Hanford, Washington, site, one of the most contaminated sites in the country, is at 34. Even the highest level of contamination at the Nevada Test Site, where the nuclear bombs were tested, is lower, at 200 picocuries per gram of soil.

Citizen and watchdog groups are deeply alarmed.
They call for an independent assessment of the RSALs and how they were determined.
In response, in 1998 the DOE agrees to fund an independent assessment of the cleanup standards. After fifteen months of study, Risk Assessment Corporation, a well-known team of scientists, releases a peer-reviewed study that recommends a level of no more than 35 picocuries per gram of soil, a reduction of 95 percent from what the DOE, EPA, and CDPHE have originally agreed to as the legally binding standard. The Soil Action Level Oversight Panel sends this recommendation to the DOE.

The DOE never formally responds.

Instead, the DOE, EPA, and CDPHE come up with a compromise of their own. The top three feet of soil at Rocky Flats will be cleaned up to 50 picocuries per gram. Soil from three to six feet below the surface will be cleaned up to a level of 1,000 to 7,000 picocuries per gram. There will be no limit on the amount of plutonium that will remain in the soil six feet or more below the surface, despite the fact that a great deal of material and contaminants remains below the surface, in parts of the lower floors and basements of buildings and the extensive piping that connected them.

Critics note that just cleaning up the top contamination level does not take into consideration soil movement due to weather, erosion, or—perhaps most worrisome—burrowing animals.
A 1996 study of burrowing animals present at Rocky Flats shows that they constantly redistribute soil and its contents. Animals dig to depths of ten to sixteen feet and disturb as much as 11 to 12 percent of surface soil in any given year. Wind and water actions contribute further to soil movement.

In 2000, Congress proposes transforming the Rocky Flats Environmental Technology Site into a wildlife refuge, and the Rocky Flats National Wildlife Refuge Act passes in 2001. Kaiser-Hill promises they can do the cleanup fast, and for the agreed-upon price. The graduated standard for residual plutonium in soil is officially adopted in 2003. Of the $7 billion slated for cleanup, most will go to site security, relocation of weapons-grade material, removal of bomb-production waste, and demolition of buildings.
Only 7 percent of the total—roughly $473 million—will go for actual soil and water cleanup.

Rocky Flats will become a plutonium graveyard, with a few sprinkles on top.

Government officials claim that background levels for plutonium—due to fallout from the atmospheric testing of nuclear weapons from 1945 to 1963—make the whole argument moot anyway. In 1963 many countries signed the Limited Test Ban Treaty, promising to stop testing nuclear weapons in the atmosphere, underwater, or in outer space. Underground nuclear testing was still permitted. The ban met with mixed results: France continued atmospheric testing until 1974 and China until 1980. Underground testing continued in the Soviet Union
until 1990, in the United Kingdom until 1991, in the United States until 1992, and in both China and France until 1996. These countries promised to discontinue all nuclear weapons testing after the Comprehensive Test Ban Treaty in 1996 (a treaty that has never been ratified by the U.S. Congress). Some countries that did not sign the treaty have continued testing. India and Pakistan last tested nuclear weapons in 1998, North Korea in 2009.

The average background level for plutonium along the Front Range of the Rockies resulting from global fallout is 0.04 picocuries per gram of soil. Although measurements vary, most levels at the Rocky Flats National Wildlife Refuge, and some of the off-site areas around Rocky Flats, are dozens of times higher.

The wildlife refuge is designed to protect wildlife and habitat as well as provide opportunities for public hiking, biking, and possibly hunting.
In December 2004, the U.S. Fish and Wildlife Service announces the results of a study to determine if the deer at Rocky Flats will be safe for human consumption. Tissue is collected from twenty-six deer and a control deer. Only the deer from Rocky Flats have detectable levels of plutonium in bone samples. The government determines that the risk level from eating deer with “tissue activity level” falls within an acceptable range.

“
Close it, fence it, pave it over,” implores an environmental engineer at a forum in Boulder a few months later. But the government has no intention of closing off the land. In their view, turning former nuclear sites into nature reserves is “thrifty environmentalism. It would cost a fortune to clean up the site so people could live there … but making it safe for ‘wildlife-dependent’ public use is more affordable.”

R
OCKY
F
LATS
tends to run in families. During the Cold War years, it was common for entire families to work at the plant. Workers spread the word about good jobs and great pay, and government officials found it easier to do security clearances on relatives of employees who had already been cleared.

Many workers, and sometimes members of the same family, became
ill. Rocky Flats was supposed to keep track of on-the-job exposures, but their record-keeping was inconsistent and sometimes inaccurate. Records were often lost or misplaced.
Dosimeter badges, which employees wore to record daily exposure levels, were sometimes mixed up or zeroed out. Workers did not have full access to their own exposure records.

Sixteen members of the Dobrovolny family worked at Rocky Flats. By 2007, seven were sick or dead from health issues related to Rocky Flats. Mark Dobrovolny worked at Rocky Flats for years. His father worked at the plant and died of lung cancer. Mark, who painted walls and floors at Rocky Flats with a coating designed to prevent spilled radioactive material from getting into the air, has health issues, but is reluctant to request his exposure records. “Actually, I don’t want to know,” he said. “And I don’t know that I would believe the information that was there.” Like other workers, he was never sure if he was really safe. “Everyone who worked out there thought they would get cancer,” he said. His former wife, Michelle, who also worked at Rocky Flats, has chronic pneumonia, bronchitis, and other health problems. “The hardest thing is watching my family members die around me,” she said.