Rocky Flats: Concerns & Challenges
April 2, 2018
Patricia Mellen, Attorney at Law www.patmellenlaw.com
Pat Mellen Law LLC 1 Perspective
Professional Involvement • Refuge Lawsuit Summer 2017 • Counsel for some activists • Issue-related research
Related Experience Not representing any • National Security Clearance BIs person or organization • DOD, DOE, DOI for the purposes of • Los Alamos, Livermore this presentation. Education • BS IOE – U. of Michigan • MA Journalism – U. of Missouri • Juris Doctorate – U. of Denver
Pat Mellen Law LLC 2 Goals
• Consolidated summary of diverse concerns
• Clarification of context around complex issues
• Renewed efforts at collaboration by all parties
Pat Mellen Law LLC 3 Context: CDPHE “Big Truths”
1. Rocky Flats once was highly contaminated. 2. Environmental crimes committed during Plant Operations. 3. Some on and off-site residual contamination remains. 4. Will persist a long time.
Pat Mellen Law LLC 4 Context “Truth 1: The Rocky Flats Plant was once highly contaminated”
• Acknowledged Accidents • Major plutonium fires – 1957, 1969
• Misguided waste storage/disposal decisions • 903 Pad • East Trenches • Pondcrete/Saltcrete • Solar Ponds
• Other Anecdotal Events • Waste incineration • Experiment-related criticalities • Undocumented dumping/spray irrigation • Great Western Reservoir and Standley Lake Projects
• 1994 – ABC Nightline “The Most Dangerous Building in America.” • Building 771
Pat Mellen Law LLC 5 Context “Truth 2: Environmental Crimes were committed at the Plant”
• June 6, 1989 • FBI/EPA Raid • First such raid by one federal agency against another
• Rocky Flats Special Grand Jury • Empaneled August 1, 1989 • Discharged March 24, 1992 • US Attorneys refused to issue indictments returned by Grand Jury
• Rockwell pled guilty to ten (10) charges in a plea agreement • Total fine: $18.5 Million • Indemnified by US DOE – paid by taxpayers • Plant annual budget estimated: $500 Million
• Rockwell lost suit to breach DOE contract based on impossibility • DOE terms forcing it to break environmental laws
Pat Mellen Law LLC 6 Context “Truth 2: Environmental Crimes were committed at the Plant”
• Crimes admitted in plea agreement – Felonies and Misdemeanors 1. Knowing Storage of Mixed Hazardous Wastes (Pondcrete & Saltcrete) 2. Knowing Storage of Mixed Hazardous Wastes (Pondcrete & Saltcrete) without a Permit or Interim Status 3. Knowing Treatment and Storage of Mixed Hazardous Wastes (Concentrated Salt Brine) without a Permit or Interim Status 4. Knowing Storage of Mixed Hazardous Wastes (Vacuum Filter Sludge) without a Permit or Interim Status 5. Negligent Violation of CWA Permit Conditions (Industrial Wastes to the Sewage Treatment Plant 6. Negligent Violation of CWA Permit Conditions (BOD Violations, March 1988) 7. Negligent Violation of CWA Permit Conditions (BOD/Fecal Coliform Violations, April 1988) 8. Negligent Violation of CWA Permit Conditions (BOD Violations, May 1988) 9. Knowing Violation of CWA Permit Conditions (Spray Irrigation) 10. Negligent Violation of CWA Permit Conditions (Chromic Acid Spill)
• What was not charged? Who was not charged? Why not?
Pat Mellen Law LLC 7 Context “Truth 2: The Superfund Cleanup”
• Cleanup-Related Agreements • July 30, 1986 – Compliance Agreement (CEARP) • June 7, 1989 – Compliance Order • January 22, 1991 – Interagency Agreement • July 7, 1994 – Settlement Agreement & State Compliance Order • July 19, 1996 – Rocky Flats Cleanup Agreement
• Cleanup Metrics • Original Estimate – $37 Billion, 65 Years • “Accelerated Cleanup” – $7 Billion, 10 years
• Kaiser-Hill Awarded Clean-up Contract – January 2000 • Contractor’s proposed approach v. MARSSIM • Incentive-based contract with performance bonuses
• Non-Standard Cleanup Methodology • Comprehensive Risk Assessment (RI/FS) after not before • Individual Hazardous Substance Sites (“IHSS”) Identification Basis Pat Mellen Law LLC 8 Context “Truth 2: The Superfund Cleanup”
• Cleanup Challenges • Competition with other cleanup sites for huge funding needed • Controversial disposal options – WIPP, Yucca, Hanford, Savannah • Early-stage development of cleanup technology
• Cleanup Compromise Disputes • End State Use(s) • Cleanup Standards v. Money v. Time
• ATSDR 2005 Public Health Report • “The on-site contamination levels will continue to pose no public health hazard to residents in the future, so long as site access is restricted. Any future changes to site access must be carefully reviewed (see Section VIII), based on the contamination levels that remain at RFETS after remediation is completed and the proposed land uses.”
Pat Mellen Law LLC 9 Context “Truth 2: The Superfund Cleanup”
• No cleanup actions were taken on Refuge property
• No Superfund cleanup actions were taken off site
• Local Communities sought and received $$$ for separate clean-ups • Broomfield received DOE funds to replace Great Western Reservoir in drinking water supply • DOE financed Woman Creek Reservoir & Managing Authority • Woman and Walnut Creeks diverted from drinking water supplies
• September 2006 Corrective Action Decision/Record Of Decision • Established boundary lines between the COU and POU (“Refuge”) • COU – Institutional Controls • POU – Pronounced “Safe” for “Unlimited Use, Unrestricted Exposure”
Pat Mellen Law LLC 10 Context “Truth 2: Now”
• September 2006 Corrective Action Decision/Record Of Decision • Drew the boundary lines between the COU and POU (“Refuge”) • COU – Institutional Controls • POU – Safe for “Unlimited Use, Unrestricted Exposure”
• COU • October 2004 - LSO Established 118 Stat. 2164 Sec. 3118 • February 2006 - IGA Establishing Rocky Flats Stewardship Council • February 2007 - Rocky Flats Legacy Management Agreement
• POU • December 2001 – Rocky Flats National Wildlife Refuge Act • April 2005 – Revised Comprehensive Conservation Plan • July 2007 – Rocky Flats National Wildlife Refuge established • December 2011 – JPPHA Easement & Section 16 swap begins
Pat Mellen Law LLC 11 Context “Truth 2: Now”
• COU Institutional Controls • Active Monitoring • Ground-water Sampling • Surface-water Sampling • Discontinued Monitoring • Air Quality • Soil
• COU Ongoing Issues • Original Landfill Slumping • Periodic Points of Compliance Exceedances • Fate of the Terminal Ponds • Soil Erosion Mitigation • Water Treatment/Testing Facility Maintenance
Pat Mellen Law LLC 12 Context “Truth 3: There is on and off-site residual contamination”
• On Site Residual Contamination • Example – three Pu standards established • Surface – 3’: 50 pCi/g • 3’ – 6’: 1,000 pCi/g • 6’ – Unlimited • Acknowledged • COU Waste Buried in Place • Sampled Hotspots – COU and Refuge • Surface residue – solar ponds, burns • Anecdotal • Undocumented, un-remediated waste disposal • Spray fields
• Host of non-Pu special nuclear, hazardous, and toxic wastes
Pat Mellen Law LLC 13 Context “Truth 3: There is on and off-site residual contamination”
•Off-Site Residual Contamination • Krey-Hardy Map (AEC) • Cook v. Rockwell • Verdict form • Class Action Map • CDOT Northwest Corridor EIS • Iggy Litaor PhD
Pat Mellen Law LLC 14 Context “Truth 4: Residual contamination will be there for a very long time.”
• Half-lives of Special Nuclear Materials: • Pu 239 24,100 years • Pu 240 6,560 years • Pu 238 87.7 years • Am 241 432.2 years • Uranium Six figures
• Challenges of long-life waste sites • Effective containment technologies • Markings/communication strategies
Safe discovered excavating a trench at Hanford in 2004
Pat Mellen Law LLC 15 CDPHE’s 20 Select Rocky Flats Myths and Misunderstandings - Roadmap 1. DOE pays CDPHE 11. High Volume air samplers 2. Cleanup records and data are 12. Continuous air monitoring secret and unavailable 13. Plutonium surface soil action 3. Sealing grand jury records levels 4. A small dose of ionizing 14. Process waste lines radiation 15. Landfills full of toxic materials 5. Inhaling even one particle of 16. Wildfire releases of plutonium radionuclides 6. Plutonium most dangerous 17. Drinking water supplies substance known 18. Missing plutonium 7. Location of subsurface 19. Plants and animals are contamination negatively impacted 8. Inadequate sampling 20. CDPHE is not enforcing 9. Parkway construction regulations following POC 10. No airborne radionuclide exceedances standards
Pat Mellen Law LLC 16 20 Concerns and Challenges
1. DOE Payments in General 13. Averaging Soil Samples 2. Accessibility of Information 14. Realistic life-cycle of 3. Impact of Sealed Court containment strategies used Documents 15. Stabilizing the OLF 4. Standards were Derivative 16. Wildfire and Construction 5. Debating Voluntary Exposure Releases of Radionuclides 6. Relative “Worth” of Dangers 17. Protecting the Drinking Water 7. Locations of Subsurface Supply Contamination 18. Missing Plutonium 8. Role of Sampling 19. Plant and Animal Interaction 9. Construction Impacts 20. How Long Will Exceedance 10 – 12. Applicability of Airborne Protocol Remain Protective? Monitoring
Pat Mellen Law LLC 17 #1: Are DOE payments for CDPHE and RFSC more a benefit or a conflict of interest?
• Support for CDPHE: • $$$$ Paid Annually for Oversight – started after the 1989 raid • Endorsed by Governors
• DOE Grant Support to Rocky Flats Stewardship Council - Feb 2017
• Influence of David Abelson’s similar consulting contracts other sites
• Notable firing of DOE dissenters – Carl Johnson, Iggy Litaor
Pat Mellen Law LLC 18 #2: How can an average unfamiliar person make a reasonable assessment of the risks of interacting with Rocky Flats?
• Literally volumes of information • RI/FS 23 Volumes plus ask for the CDs • Monitoring sampling data in GEMS – not intuitive • DOE IC sampling for personnel not provided without FOIA
• Technical challenges and high costs • FOIA waivers, compliance and dart-throwing • Location name changes and acronym alphabet soup • Shifting standard units of measure – cancer risk from exposure vs. inhalation/ingestion
• Veterans with years of research invested still seeking old data • Loss of the USDOE Reading Room at FRCC
• “Don’t talk to me about what someone did 30 years ago” Pat Mellen Law LLC 19 #3: What IHSSs may have been missed because evidence was sealed under Grand Jury secrecy and other private settlements?
• Grand Jury report was mishandled
• RI/FS was done AFTER the cleanup, not before
• The methodology to identify remediation locations was driven by available documentation – these documents were “unavailable”
• “Burying” a document or testimony under Grand Jury seal is a well- known legal tactic to avoid later culpability
• Early lawsuits involving the Church and McKay families and the agencies suggest settlement agreements to promote the safety of the site to protect property values.
Pat Mellen Law LLC 20 #4: Should we be locked into the negotiated local RSAL standards for ionizing radiation?
• Standards/Official Limits are arbitrary • Compromises based on trade-offs for available funds and timelines • Different “standards” exist at different DOE cleanup sites
• Cancer risk is an ineffective “standard” – what about other outcomes • Epilepsy • Leukemia • Fertility/Epi-genetic damage • Infant mortality/Birth defects
• Disputes remain about sampling strategy • “Random” sampling for RI/FS was one sample every 33 acres • Ill-designed or improperly calibrated equipment • Invalid “averaging” of samples creates false sense of safety • Selective inclusion/exclusion of samples
Pat Mellen Law LLC 21 #5: What purpose is served by discrediting valid science supporting the one-particle Pu risk assessment? • Public Health threat level is a valid point of scientific dispute • Dr. Karl Morgan – US Health Physics Founder • Dr. Ed Martell – NCAR Radio Chemist • Dr. Carl Johnson – Jefferson County Public Health (Former) • Dr. Mark Johnson - Jefferson County Public Health (Current)
• Toxicity Acknowledged by Responsible Agencies • DOE: Closing the Circle on the Splitting of the Atom - 1996 Plutonium can be extremely dangerous, even in tiny quantities, if it is inhaled • DOJ: Rockwell Sentencing Memorandum - 1992 Plutonium is toxic if inhaled, ingested or absorbed through an open wound. It is a powerful carcinogen and one of the most toxic substances known to man.
Pat Mellen Law LLC 22 #6: What obligations exist at this complex site to assess, educate, and warn the public of hazards that are not obvious and not “acute?”
• Empower the public to protect itself from non-obvious dangers • The “government” says its safe, it must be safe
• Risk assessment and justification based on “secondary signs” rationale • Incomplete longitudinal health studies • POC monitors/sampling is limited
• Legal challenges posed by delayed or latent causation
• It’s not just plutonium • Other special nuclear, toxic, and hazardous wastes • Americium, uranium, beryllium, mercury, arsenic, chromium, etc.
• Risk of confirmation bias – Geiger counters v. Alpha emitting Pu
Pat Mellen Law LLC 23 #7: Not all subsurface contamination sites were “officially” documented and therefore were not included in the cleanup • Cleanup IHSS were determined from existing documents, not assessed from an independent field environmental review.
• Resistance to acknowledgement of surface and sub-surface migration. • Solar ponds, spray fields
• No remediation activities happened after the RI/FS
• No remediation took place on the POU/Refuge property
• No monitoring applies to the Refuge
Pat Mellen Law LLC 24 #8: What role does sampling play in ensuring protectiveness of the remedy?
• Modeling of risk based on selective sampling is not the same as scientific evaluation and quantification
•Disputes exist about the sampling methodologies • Independent verification • Core depths and blending samples • Averaging data for a “site-wide” number invalid
• The site is a living ecological system • Waste left in place rules out – “Safe Forever” stance
• Effects of unanticipated events, future activities • Floods in 2013 and 2015 • Encroachment of future fracking
Pat Mellen Law LLC 25 #9: What needs to be done to minimize re- suspension of toxic materials if JPPHA and Refuge construction goes forward?
• Local governments’ application and enforcement of construction protocols and dust mitigation
• JPPHA easement runs through worst areas of the contamination maps • Averaging vs. Hotspots • Migration from flooding and landfills
• Obligations of JPPHA to adhere to environmental laws is disputed • Zero plans for testing
• Emergency response plans moth-balled
Pat Mellen Law LLC 26 #10 - 12: What is the importance of proving the existence of airborne radionuclide standards?
• Air monitoring has been discontinued
• Loss of one of the early warning systems in the event of unanticipated breach
• The concept of a standard relies on the same risk-tolerance based discrediting of “the one-particle is dangerous” approach
• Not sure how plutonium stuck in the nose or upper airway is preferable
Pat Mellen Law LLC 27 Why accurate air monitoring was and remains so important to the safety of the site.
- Image courtesy of W. Gale Biggs
Pat Mellen Law LLC 28 #13: What purpose is served by “averaging” soil samples, and then comparing to RSALs? • We have plutonium to manage because of prior values trade-off decisions • Demonizing Pu or normalizing its toxicity is not helpful • Educating the public about HOW plutonium is dangerous is
• Safe/Not Safe is not the question • Relevant if all contamination had been completely removed • “Safe today = Safe tomorrow” does not apply to this living ecosystem
• Standards expressed in “understood” cancer risks • Tradeoff decisions based on available science and circumstances • Values trade-offs for time, money, political will • Star Trek principle – Needs of the many vs. needs of the few • No fall-back monitoring if POU decision was wrong
• So much circular logic based on disputed sampling techniques • Reliant on multiple layers of assumptions, averaging and modeling
Pat Mellen Law LLC 29 Risk Communication, Fugitive Values, and the Problem of Tradeoffs: Diagnosing the Breakdown of Deliberative Processes (Satterfield & Levin)
“From the 1940s forward, the question of whether or not there exists “a threshold for somatic radiation injury” has persisted despite repeated efforts by scientists to discern a ‘safe’ dose (Walker 2002, 20).”
“In sum, while risk communication at Rocky Flats reflects improved local knowledge of radiation risks, a clear distinction in patterns of thought between those who are risk-indifferent and those who are risk-averse remains evident. Those who are risk-averse and understand the complexity of dose estimates still focus on the chance that some people will suffer severe damage following an inhaled single particle or minimal physical insults. Those who are risk indifferent generally indicate that the source of the risk does not matter — that citizens should think in terms of comparative risks and thereby tolerate risk exposure from Rocky Flats in the same manner that they tolerate exposure to the effects of living at high altitude or flying in a passenger jet.”
Pat Mellen Law LLC 30 Embracing Evolving Risk and Decision-making Lessons Learned
Love Canal I & II
“New residents, attracted by promises of cleaned-up land and affordable homes, say in lawsuits that they are being sickened by the same buried chemicals from the disaster in the Niagara Falls neighborhood in the 1970s,” the Associated Press reported this month.
In the article, E.P.A. officials insist that the cleanup and containment of the pollution succeeded.
A central question, for residents old and new, is whether the passage of time has bolstered or undermined initial health concerns related to the more than 80 chemicals buried at the site, including 11 that state officials at the time said were carcinogens.
A persistent challenge in such studies is that ailments of greatest concern, like cancers, are rare enough that it is often impossible to detect a statistically significant indication of cause and effect amid the many other factors, like smoking, that can play a role. Another issue is that many cancers take decades to unfold.
- “Love Canal and Its Mixed Legacy,” New York Times, November 2013
Pat Mellen Law LLC 31 Embracing Evolving Risk and Decision-making Lessons Learned
Flint Water Crisis The scale of government neglect in the water crisis in Flint, Mich., could place the city alongside some of the most infamous environmental disasters in U.S. history, from New York’s Love Canal to the Hinkley, Calif., saga of Erin Brockovich fame.
Local, state and federal officials — including the top Environmental Protection Agency administrator in the Midwest and Michigan’s Republican governor, Rick Snyder — are accused of ignoring, denying or covering up problems that left thousands of children exposed to toxic lead in their drinking water for about 18 months.
“Nobody was owning the problem, not the [state Department of Environmental Quality], not the EPA, not the governor’s office,” said Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, which revealed that damning passages had been removed from a government specialist’s report on Flint’s water contamination.
- “Flint’s water crisis reveals government failures at every level,” The Washington Post, January 2016.
Pat Mellen Law LLC 32 Embracing Evolving Risk and Decision-making Mistakes Were Made
Government Proclamations of “Safe” Not a Guarantee
Pat Mellen Law LLC 33 #14: What is the realistic life expectancy of containment of sub-surface waste buried- in-place?
• Standard - Unlimited waste allowed below 6’ at Rocky Flats
• Containment methodology decisions remain a work in progress
• Example: December 2017 Hanford Contamination Breach Post-Mortem • Over-reliance on selective empirical data… gave false assurances that the controls were effective • Risks and consequences associated with emerging and changing conditions were not adequately reviewed and evaluated • Previous success of the application of fixative was assumed to provide equivalent protection to containerized debris or covering the debris with soil • Radiological indicators near the PRF demolition site did not indicate the need to expand fixative applications or perform surveys in addition to the established monitoring plan • Communications breakdowns thwarted response efforts • Management did not adequately address employee concerns and suggestions
Pat Mellen Law LLC 34 #15: What can be done to stabilize the Original Landfill to improve containment?
• RFLMA of 2007 and CDPHE Environmental Covenant of 2011 with USDOE identifies the OLF as a separate and distinct unit that contains “relatively higher levels of contamination.”
• The OLF contents have warranted separate analysis and treatment. • US DOE records show it contains 20 kgs of depleted uranium • Sewage sludge with weapons-grade Pu 239 and uranium • Other hazardous wastes and chemicals
• Inadequate containment – no liner, soil instead of RCRA cap
• Geography of the Original Landfill increases the risk • Hillside profile – 18% slope • Lack of compaction • Inadequate liner • What’s getting squeezed out into the aquifer below?
Pat Mellen Law LLC 35 #16: How much plutonium and other hazardous wastes will be re-suspended by wildfires and construction activities?
• Personal experience in earlier fires differs from official accounts
• Hotspots – known and unknown
• Contamination maps confirm permanent surface contamination
• Air sampling unavailable
Pat Mellen Law LLC 36 #17: Are the water treatment and monitoring protocols sufficient to prevent Standley Lake from ending up like Great Western Reservoir?
• Protection of the aquifer BENEATH the contamination buried in place • Standley Lake still provides water to: Westminster, Northglenn & Thornton • Admirable use of precautionary principle – don’t stir up the muck • Swimming and wading are PROHIBITED in Standley Lake • Boat launches are restricted to specific locations
Pat Mellen Law LLC 37 #18: Where is the unaccounted for plutonium and how concerned should we be about it?
• Weapons Grade Plutonium-239 is an incredibly valuable substance • Other countries who want nuclear weapons • Poses a security threat • Secrecy and failure to warn of dangerous conditions
• Elaborate accounting systems designed for controls • Difficult to estimate amounts in trans-uranic processing wastes • Difficult to estimate amounts shipped off-site in wastes • Difficult to estimate amounts left buried in place • Difficult to quantify amounts disposed in on-site landfills, elsewhere
• Possible to ever reconcile? • 1994 DOE Secretary Hazel O’Leary said 1.3 tons Pu missing
Pat Mellen Law LLC 38 #19: What is the effect of the interaction of plants and animals with the wastes at the site?
• Migration of contamination • Burrowing creatures – i.e. how deep do prairie dogs dig? • High winds through plants and grasses • Plants consumed in wildfires and controlled burns
• Time-delay effects? • What happened to the Prebles Jumping Mice?
• More looking for secondary signs
Pat Mellen Law LLC 39 #20: How long will the response regulations for POC exceedances be protective of the community?
• Exceedance determinations also rely on long-term rolling averages • Not individual samples
• Response procedures presume anomolies or slow-moving changes
• Water migration rates across and off site are disputed
• No emergency preparedness communication channels remain active
Pat Mellen Law LLC 40 Bottom line
• What is the purpose and the responsibility of this Council v. individual local governments to protect the public – who owns any future problems?
• LSO v. Non-LSO distinctions
• Public awareness of the difference
• Expansion into the Refuge activities
Pat Mellen Law LLC 41 LSO per the DOE Grant Language
Pat Mellen Law LLC 42 Non-LSO per Local IAs
Mission Statement.
The mission of the Stewardship Council is -- a. To provide continuing local engagement on activities occurring at the Rocky Flats site regarding long-term stewardship of residual contamination and refuge management; b. To provide a forum to track issues related to former site employees, including but not limited to long-term health benefits and pension programs; c. To provide an ongoing mechanism to help maintain public knowledge of Rocky Flats and the ongoing needs and responsibilities regarding contaminant management and refuge management; and d. To provide an ongoing forum to engage on all other issues pertinent to Rocky Flats, as determined by the Stewardship Council Board of Directors.
Pat Mellen Law LLC 43 Non-LSO per Local IAs Purposes. Specifically, the purposes of the Stewardship Council are: a. To provide a forum for elected officials and community members to discuss with federal, state, and local elected officials and agencies issues related to the long-term stewardship and management of the Rocky Flats site. b. To provide a forum for elected officials and community members to be briefed on the results of the operational and performance monitoring data of site operations. c. To provide a mechanism for keeping elected officials and community members informed of the results of the monitoring data. d. To provide a mechanism for educating elected officials and community members about the residual hazards and the continued need for a comprehensive site-wide stewardship program. e. To provide a forum for USFWS staff to work with elected officials and community members on issues related to the management of resources under that agency’s jurisdiction. f. To serve as the designated LSO, pursuant to Section 3120 of the 2005 National Defense Authorization Act, Public Law 108-375. g. To serve as a participating agency under the National Environmental Policy Act (NEPA) for preparation of environmental impact assessments, to serve as a participating agency under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 120(f), and to assist the Parties as provided in the Rocky Flats Legacy Management Agreement. h. To provide a forum for all other issues pertinent to Rocky Flats.
Pat Mellen Law LLC 44 Discussion?
Pat Mellen Law LLC 3