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Showdown at Rocky Flats : The Justice Department had negotiated a Rocky Flats settlement, but the grand jury could not keep quiet about what happened there.

SHOWDOWN AT ROCKY FLATS: Second of two parts.

August 15, 1993|BARRY SIEGEL | Barry Siegel, a Times national correspondent, is the author of "A Death in White Bear Lake" and "Shades of Gray," both published by Bantam Books. His last story for this magazine was about the University of Wisconsin's efforts to outlaw hate speech.

Fimberg had carefully qualified the prosecutors' statements about the public health impact beyond the Rocky Flats boundaries. Based on the "evidence gathered in this investigation," there was no impact stemming specifically from "the conduct to which Rockwell has pled guilty." But it is "important to note that the criminal investigation . . . was not . . . a broad-based public health or environmental survey of Rocky Flats."

Fimberg's language could not, however, obscure the plea bargain's shortcomings. Instead of charging individuals with false statements, the government was letting Rockwell as a corporation plead guilty to five felony and five misdemeanor violations of the Resource Conservation and Recovery Act and the Clean Water Act: illegal storage of pondcrete, treatment and storage of hazardous wastes in a closed holding pond, the illegal storage of vacuum-filter sludge, illegal discharges from the sewage plant and ponds, the chromic acid spill and the spray irrigation that led to runoff and ground-water contamination.

From the back of the room came laughter as one grand juror finally got to the $18.5 million fine. Fimberg winced. It hadn't been easy even to win that much, once Norton put a $15 million offer on the table. This was the only time he'd ever had to negotiate a number up rather than down.

As the prosecutors left the room, clerks brought the grand jurors box lunches. They had one hour to decide whether to go along with this sentencing memo.

The grand jurors agonized, wavered, debated. Some wanted to join the prosecutors. Some were tired, some thought the deal and the sentencing memo weren't so bad. Wes McKinley resisted. "If you sign this, you'll have wasted almost three years," he told the others. In the end, the vote was 8 to 7 against joining the prosecutor's memo. Twelve grand jurors are needed to indict.

"Forget it," McKinley told Fimberg when the prosecutor returned. "We won't go along."

Next Judge Finesilver came in. McKinley handed him the grand jury's own report. "Thank you," the judge said. "Anything else?"

Yes, McKinley said. He handed the judge the prosecution's sentencing memo. Across the top, he'd written "Not a true bill." The U.S. attorney would have to file his own charges against Rockwell.

The judge asked if the grand jurors wanted to disband. The vote was 11 to 5 in favor of that idea. Legally, they needed 12 votes, but Finesilver just now was not inclined to worry about the fine points of law. After 2 1/2 years, Special Grand Jury 89-2 was out of business.

JUST AS KEN FIMBERG'S PREDICTIONS about a runaway grand jury proved correct, so too did his warnings about the public response to the settlement. In the wake of Rockwell's arraignment on March 26 and sentencing hearing on June 1, critics from all quarters raised their voices. Among others, Rep. David E. Skaggs, the Democratic congressman whose district includes Rocky Flats, started speculating openly that the investigation had been constrained by an agreement "fairly high up" to put the DOE off limits. Within days, the uproar in Colorado had reached the halls of Congress.

At first, staffers on the oversight subcommittee of the Committee on Science, Space and Technology simply tried to make phone calls of inquiry. But when the Justice Department wouldn't talk, the subcommittee issued subpoenas to, among others, Ken Fimberg, Mike Norton, Peter Murtha and FBI Agent Jon Lipsky. Chaired by now-retired Rep. Howard Wolpe (D-Michigan), the subcommittee's investigation of the Rocky Flats prosecution was under way.

The eight days of hearings in September, 1992, were held in private executive session, insulated from public scrutiny. Every government witness showed up with Justice Department lawyers at their sides and limits on what they'd talk about. Lipsky, even while clinging to a taciturn FBI agent's manner, did make it clear he thought the plea bargain had quashed charges for which he'd developed solid evidence. But for the most part, witnesses lined up with the Justice Department. Interference from Washington "simply didn't happen in this case," Norton insisted. No one volunteered anything about the grand jury report.

The prosecutors wanted the focus kept on their positive results. They'd triggered sweeping reforms at the DOE and Rocky Flats, they pointed out. They'd shown the regulated community there was no doubt about the enforceability of criminal environmental laws. They'd initiated the first criminal prosecution of environmental crimes at a DOE plant. They'd saved the taxpayer, for the first time, from paying a DOE contractor's fine. They'd obtained by far the highest hazardous-waste fine ever, four times larger than the previous record.

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