Author Archives: RF_Alum

Plutonium in Soil near Rocky Flats

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There has been recent controversy about whether cities and counties will contribute to construction of a bridge and underpass for hiker and animal access to the Rocky Flats National Wildlife Refuge as described in a recent commentary. Some cities and counties are planning to collect soil samples of the area “to determine whether the trail would be safe.” Those cities and counties might want to save their money and take a look at the information included in the most recent Rocky Flats Museum Newsletter. “The Colorado Department of Public Health and Environment (CDPHE) years ago determined that additional sampling at the former Rocky Flats Nuclear Weapons Plant is not required because vast amounts of data regarding plutonium contamination at and near Rocky Flats had already been gathered.” “During characterization and remediation projects at the former Plant Site, about 1.3 million analyses were compiled from approximately 7,230 surface soil sample locations and from about 15,890 subsurface soil samples.”

Perhaps the massive characterization of plutonium in soil around the plant is less important than the assessment of health risk. The same State report concluded that there was “…an excess cancer risk below one in a million for any exposure scenario. There was essentially no plutonium in the subsurface soils of the Refuge. Because of these very low concentrations, no remediation was required in the Refuge portion of the former Plant Site.”

Another Colorado Department of Health and Environment report describes the extensive off-site sampling conducted over many years by many different agencies. One off-site study collected 144 surface soil samples from a 38-square mile area to the north, east, and south of Rocky Flats. Only 19 of the samples found plutonium concentrations above background levels. Perhaps the people who continue to try to frighten people about plutonium around Rocky Flats should move on to spend their energies on something that might have some value.

Lion’s Share

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Dictionary.com explains the expression means to receive the largest part of a share and especially a disproportionate portion. It has its origin in Aesop fables in which the lion claimed most if not all the spoils of a hunt with other animals needing to defer to the powerful lion.

Rocky Flats Cook v. Rockwell Case

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I posted a commentary two weeks ago about the tentative $375 million settlement of a lawsuit filed about 26 years ago by landowners near the plant (it requires approval by a judge). I was unaware that the settlement had been in the works for almost a year. A June 24, 2015 article by Alison Frankel gives details of the history of what has come to known as the Cook V Rockwell Case and what led to the recent announcement. A quick summary is that:

  • In 2005 a jury decided a class of property owners near Rocky Flats deserved multi-million dollar compensation for damage the plant had done to their property
  • In 2011 the 10th U.S. Circuit Court of Appeals overturned the verdict, ruling the “…trial judge was too expansive in instructing the jury about what constitutes a nuclear incident” and that there was no proof of actual damage
  • In June 2015 a different 10th Circuit panel ruled two to one to “…gave back what the appeals court took away in 2011”

I’ll provide my simplistic (with help from people closer to the case) explanation. The jury verdict was based on the fact that the original lawsuit was filed under the Price-Anderson federal law involving claims against nuclear facilities for “nuclear incidents.” The jury verdict in favor of the homeowners was overturned because Price-Anderson requires proof of actual damage, and not just a “perception of damage.” The ruling by the new panel determined that the restrictions on determining damages should be based on Colorado “nuisance laws,” which have a much lower burden of proof. The plaintiff lawyers told the panel “…they didn’t need to retry the nuisance claims because the jury had already reached a nuisance verdict…” (I’ll argue with that, since the reason the jury’s verdict was vacated was that the judge had given incorrect instructions.)

Regardless of what happened previously, apparently Dow, Rockwell, and the Department of Energy determined that new determination by the 10th Circuit panel forced them to settle a case that had no real legal basis or actual damages. My warning to them, made with no actual knowledge of legal things, is that they have opened up new liabilities that are already being worked. A group calling themselves “Rocky Flats Downwinders” have initiated “…a community survey designed to compile health impacts of those living in the area.” They say they are “…hoping to hear from anyone who lived here during the time of 1952 through 1992,” They think publicity from the settlement between Rocky Flats and homeowners will spark more interest, “We think we can piggy back on that in terms of using the information that is going to be learned through the claimant process.” Metro State University of Denver, University of Colorado and Colorado State University professors will study the surveys and compile the data from the former residents, who must have lived in the area from the plant east to Interstate 25 during the years the plant was in operation.

My prediction is that trial attorneys all over Colorado are studying the nuisance laws and licking their chops over the idea court awards can be made against companies and individuals who can be sued for perceived or maybe even real nuisances. I’m curious about the amount of my eventual award regardless of the fact I was well informed about the lack of any risk from Rocky Flats when I bought our current home downwind of the plant and moved in with my family. I doubt this is the last of the story.

Lick Your Chops

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I used a version of this expression in the commentary this week describing trial attorneys anticipating a flood of income from new nuisance lawsuits in Colorado instigated by a $375 million settlement against the operators of the Rocky Flats nuclear weapon plant. A three judge panel ruled 2 to 1 in favor of approving a settlement in a case where a previous ruling had found against the plaintiffs because there was perceived damage and not actual damage. The meaning of the expression is of course based on the literal meaning of licking your chops when thinking of something good to eat. That has evolved to “…be eager to do something you think will be satisfying or pleasant. That develops a mental image for me of a crowd of lawyers literally licking their chops.

National Academy of Sciences Reports Genetically Modified Food is Safe

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The report concludes that “Genetically engineered crops appear to be safe to eat and do not harm the environment…” However, it is certain the report does not end the controversies. An organization of companies selling genetically modified seeds observes the report demonstrates “…that agricultural biotechnology has demonstrated benefits to farmers, consumers, and the environment.” However, Michael Hansen, senior scientist at Consumers Union “…pointed to the lack of a significant increase in yield.” Several carefully worded statements in the report leave the door open to critics of GMOs. For example, it says “…foods made from such crops do not appear to pose health risks, based on chemical analysis of the foods and on animal feeding studies…” Critics will focus on the “do not appear” part of the statement and will add that the report also “…says many animal studies are too small to provide firm conclusions.” Those kind of criticisms are certain to continue despite the fact that “…several other regulatory, scientific, and health organizations have previously also concluded the foods are safe.”

The report does address the myth that GMOs have harmed the environment, to include monarch butterflies. It says there is “…no conclusive evidence of a cause-and effect relationship between G.E. crops and environmental problems. It says it has not been proved that the increased planting of such crops is indirectly responsible for the decline of the monarch butterfly.” I’ll warn that no one will go back and delete Internet stories that GMOs are killing butterflies.

My favorite part of the article is a quote from a professor who is a proponent of biotechnology. “The inescapable conclusion, after reading the report, is the G.E. crops are pretty much just crops. They are not the panacea that some proponents claim, nor the dreaded monsters that others claim.”

Settlement Reached in Homeowner Lawsuit Against Rocky Flats

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Two operators of the Rocky Flats Plant have agreed to settle a lawsuit filed by nearby homeowners in 1990 after the Justice Department raid of the plant. The announced settlement is $375 million. The homeowners had accused Rockwell International (now owned by Boeing) and Dow Chemical of devaluing their property with plutonium releases. The settlement, if it is approved by a federal judge, would involve as many as 15,000 homeowners in an area involving neighborhoods surrounding Standley Lake. The people who owned property in that area must have owned the home on June 7, 1989, which was the first day of the Justice Department raid. Anyone who sold their property before that date or bought property after that date will be excluded. Approval of the settlement and establishing a claims process could be “months away.”

There are several aspects of the settlement that make no sense to me. A jury ruled in favor of the plaintiffs in 2006 after at least one juror who had been against that ruling was thrown off the case after complaining to the judge about harassment from those who favored the ruling. The primary “evidence” that had been presented was that (and I give attribution to someone else who offered this) was that “…the FBI had raided the plant, thus something bad HAD to have been going on…and lots of people had negative things to say about the plant…” The judge awarded $926 million, but the award was thrown out by the appeals court based on improper instructions from the judge. The rejection was based on the fact that an irrational fear was not adequate proof of harm. The Supreme Court refused to take the case. Thus we have the mystery of why Dow and Rockwell agreed to a settlement when it had been legally determined the plaintiffs weren’t damaged unless the plaintiffs went back to trial and proved damage they couldn’t prove in the first trial.

One part of the answer to why the two companies settled is that the Department of Energy is expected to pay the bill because federal contract law indemnifies the companies. DOE agreed to the settlement, so taxpayers will ultimately pay something to about 15,000 homeowners after the attorneys subtract their nice multimillion dollar fee from the total award. There’s at least one more mystery. Most actual environmental damage occurred while Dow was managing the plant and Rockwell has agreed to pay most of the settlement.

See my book “An Insider’s View of Rocky Flats, Urban Myths Debunked” if you want to learn more about releases from the plant and the raid. The Kindle version costs $3.99, and it has some great pictures including two different kinds of multi-kilogram plutonium ingots. You might want to entertain yourself by reading 25 reviews of the book on Amazon. The reviews can serve as a primer for the controversies surrounding the Rocky Flats Plant. One review gives the book a “Poorly written” one star. Another gives it a “Good Read” and five stars. (The average of the 25 is 4 stars.)

After that bit of self promotion, perhaps the judge will refuse to approve the settlement, which I believe would be the reasonable thing to do. However, I’ve learned there is seldom anything that is based on reason when it involves the Rocky Flats Plant. I observe in my book that the real cause of fear from landowners around Rocky Flats was the raid, which found nothing that hadn’t already been known and didn’t identify anything that should concern the neighbors of the plant. I would agree if the settlement had been made against the Justice Department officials who raided the plant based on bad information and then didn’t have the courage to admit they had been duped.