The 771 incinerator stuff didn't so much collapse as wither. Yes, they'd been storing and burning hazardous waste in the 771 incinerator for years without a permit. But it turned out you could argue forever over whether it was a type of waste subject to RCRA and EPA jurisdiction. If it was radioactive waste, it was exempt. But what if it was a mixture of radioactive and other hazardous wastes? Not until 1987 had DOE conceded that mixed wastes were subject to RCRA.
Even then, the DOE and Rockwell general counsels stuck to their claim that the 771 incinerator was an exempt plutonium-recovery operation, although no plutonium had actually been recovered there for 10 years. Only when a DOE lawyer heard this fact directly from Rocky Flats laborers--potential witnesses--did Rockwell and DOE abandon this claim. Until then, Fimberg discovered to his considerable chagrin, his own Justice Department had filed legal briefs supporting the DOE's position.
How could he prove criminal intent? For that matter, how could he keep the jurors awake long enough to explain the whole mess?
He'd started with a hypothesis, he'd tested the hypothesis, the hypothesis had changed. Whatever he dug out now would be much harder to get. Whatever he got now would come from slogging through millions of documents, tracking down hundreds of people, running dozens of witnesses before the grand jury.
To be precise, it would come from 3.5 million documents, 800 interviews and 110 grand jury witnesses. That was the well from which the Colorado investigators eventually pulled their case.
It was, when they finally shaped it, a much more subtle prosecution than they'd first imagined. No longer did it involve clandestine midnight incinerator burns. Now their case focused on a litany of spills, leaks and contamination by a weapons plant that for many years had been ceaselessly generating tons of hazardous wastes it couldn't legally treat, store or dispose of.
According to FBI reports and court records, FBI agents and prosecutors in time discovered that Rockwell workers had been mixing hazardous and other wastes with concrete to form giant one-ton solid blocks called "pondcrete," which they'd then stored under tarps on uncovered asphalt pads. Other types of waste they'd piped into a series of holding ponds, even after regulators had closed the ponds because of ground-water contamination. Liquid effluents from the sewage plant, meanwhile, had been "spray irrigated" over open fields through a network of sprinklers, mainly to avoid the cost--and the regulatory and public scrutiny--that would come from directly discharging waste water into creeks.
Most of this had been done without permits, sometimes without telling the EPA or DOE. The pondcrete was supposed to get shipped elsewhere eventually, while the liquids were to be absorbed into the ground or evaporated by the sun. But that is not what had happened.
What were supposed to be rock-solid blocks of pondcrete turned out to be more like putty. Some were part liquid. To test the consistency, workers often stuck their thumbs into the blocks. Piled atop each other, unprotected from the elements, the blocks began to sag and leak. Liquids containing nitrates, cadmium and low-level radioactive waste began to leach into the ground and run downhill toward Walnut and Woman Creek. There they would sometimes meet the liquids spray-irrigated through a system of sprinklers, for they had also run off into the creeks. Far more effluent had been sprayed than the fields could possibly absorb, particularly since the spraying continued even when the fields were saturated or frozen solid by ice and snow.
By the spring of 1987, FBI agents and prosecutors found, a number of Rockwell employees and outside inspectors had started regularly reporting these conditions to Rocky Flats supervisors. For the most part, there was no response. Except, that is, from the supervisor who threatened workers with big fines if pondcrete production goals weren't met. And from the foreman who told his workers to "cap" the soft pondcrete blocks by throwing fresh concrete over the spots where inspectors usually stuck their instruments.
Certain memos from DOE regional managers might also be construed as a form of response. One urged DOE headquarters to "send a message to EPA that DOE and its contractors are willing to 'go to the mat' in opposing enforcement actions at DOE facilities." According to an FBI report, when DOE inspector Joseph Krupar did warn Rocky Flats manager Dominic Sanchini about split and leaking pondcrete blocks, Sanchini responded by telling Krupar he was going to "define his access" at the plant. Then Sanchini put a barbed-wire fence and "unauthorized personnel keep out" signs around the pondcrete blocks.