Category Archives: Rocky Flats Plant

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.

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.

Let Science Rule on Flats Access

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The controversy continues over 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. Failure to contribute could kill the Rocky Mountain Greenway Trail, which would eventually connect the Rocky Mountain Arsenal and Rocky Flats Refuges to Rocky Mountain National Park. A recent Denver Post editorial gives an excellent summary of the issue. It says that critics, “…simply do not trust assurances from federal and state officials that the area is safe and the cleanup has been successful. Basically, they don’t trust the available science. This is par for the course for activists who have been pushing exaggerated claims of plutonium contamination around Rocky Flats for decades, but it’s sad to see local officials buying into it.”

Some cities and counties are planning to collect soil samples of the area “to determine whether the trail would be safe” I sent a letter agreeing with most of the editorial, but warning that the results of sampling will be meaningless unless they are compared to samples taken by the exact techniques from some city parks and trails that are considered to be “safe areas.” What will be found is that all of Colorado contains plutonium fallout contamination. An extensive study of transuranics in the environment completed about 1980 found the entire earth is contaminated with plutonium. Denver is in the latitude that had some of the highest average plutonium levels. I predict the area of the project will have virtually the same amount of plutonium as samples from local cities or from the western or eastern areas of the state. Only if they make the mistake of sampling ski areas will there be much of a difference. Snowfall efficiently washes plutonium fallout out of the atmosphere.

Rocky Flats Fear Continues

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There was a recent news article about the Rocky Flats Wildlife Refuge that reminded me anything about Rocky Flats will be vilified regardless of the facts. The article begins, “Millions of dollars in federal funds to help tie a major regional trail into the Rocky Flats National Wildlife Refuge may be in jeopardy, as communities near the refuge wrestle with the troubled legacy of the former nuclear weapons plant.” Superior and Westminster have decided not to provide their share of the funds needed to support the $6.5 million in federal funds required for the project. The proposed project would “…build two underpasses and one overpass to provide people and animals access to the refuge across Indiana Street and Colorado 128.” The federal grant requires a minimum of $1.1 million from local communities, and Superior and Westminster have declined to provide their required portion of the total. A Boulder official said, “If they’re going to do this, they’re going to have to do additional soil sampling,” she said. “If there is nothing to be afraid of, why can’t we sample to assuage the public of concerns that this is something dangerous.”

I’ve advocated that one unintended consequence of building Rocky Flats Plant is that it resulted in protection of a large swath of high mountain prairie from development. Those who call themselves “environmentalists” should be actively advocating that the proposed project would allow many people to experience that beautiful protected vista. I doubt that it will be possible, because the usual fear mongers will work to attract sufficient negative press to stop the project.

The manager of the refuge commented that “The vision for the Greenway Trail was to connect open spaces… (and that ) He’s confident that with time and accurate information, most communities will buy in to the underpass-overpass project.” I’m less confident based on the Boulder official’s comment about the need for sampling to determine whether there is “…something dangerous.” I assure you that there will be plutonium detected in samples from the area of the proposed project. I also assure you that there would be plutonium detected in the backyard of that Boulder official’s home. There also would be plutonium in the backyard of anyone reading this posting regardless of whether they are in Colorado or any other state. The entire earth was contaminated with plutonium by the atmospheric testing of nuclear weapons, and there will be little difference in the results from the area of the proposed project or anywhere else on the planet.

I suggest officials should also sample the dust on their office desk and/or the dirt in the landscape around their offices to allow themselves to report a comparison in the amount of plutonium detected. I predict the results would be similar.

Rocky Flats Museum Update

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Murph Widdowfield is the Board President of the Museum and recently sent an update. He first gave a brief history of the development of the atom bomb and how it changed the outcome of World War II. He then thanked “…the people who worked in the nuclear industry and the others who protected us during the period of the Cold War for their efforts, safety, and labor…”

He added a paragraph that I will quote in its entirety about progress on a visitor center at Rocky Flats. “I also want to tell you about the progress of a Visitors Center at Rocky Flats which will be built by US Fish and Wildlife Service (USFWS) on the Refuge.  A site selection contractor and USFWS have determined that the building will be on the North side of the refuge, with the entrance on Highway 128, a little West of McCaslin Blvd.  The building will not be large with most of the displays based on the refuge with a very small area for the Rocky Flats Cold War Museum.  Also, the new Green Way Trail from Rocky Mountain Arsenal through the Two Ponds Wildlife Refuge in Arvada, up to Boulder and then on up to Rocky Mountain National Park will cross over the northern side of the wildlife refuge although it will bypass the new Visitors Center.”

You can email the museum at info@rockyflatsmuseum.org.

Rocky Flats Museum Still Searching for Home

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A recent article describes how members of a nonprofit have “…salvaged thousands of items during the decontamination and destruction of the Rocky Flats Plant.” They are searching for a permanent space for the artifacts after years of moving in and out of temporary spaces. There had been a federal grant of $492,000 obtained by former U.S. senator Wayne Allard in 2007 to find a space, but that money is gone.

The directors are paying about $600/month out of pocket for storage rental and other expenses. The items in storage include 400 boxes of photographs, maps and drawings along with thousands of items such as glove boxes and safety and monitoring equipment. Museum president Murph Widdowfield said, “Our goal is to find space for a small display so the Rocky Flats Plant can live on and continue educating people.” Museum historian Ron Heard said, “It’s one of those stories that’s not a happy story—the building of nuclear weapons—but it’s a part of Colorado history.” The vice president, Larry Wilson, “…said the items not only help tell the story of the country’s nuclear legacy, but also the story of Jefferson County.”

Scott Surovchak, Rocky Flats legacy site manager for the Department of Energy, added that “…more than 100,000 workers passed through the site in the course of its roughly 50-year history, allowing a middle-class buildout of Arvada, Broomfield, and Westminster.” He added that the board wants a place to take grandkids and great-grandkids to show them and the general public, “here’s what we did.”

I find it encouraging that Surovchak commented, “The current board is different than the original group, which included a bunch of the ‘anti crowd’.” That’s a welcome change from the time when I volunteered to help inventory what was in many of all those boxes and write papers about the history of the plant.