Alliance of Nuclear Workers Advocacy Groups et al

Filing 1

PETITION FOR DISCLOSURE OF CERTAIN DOCUMENTS PROVIDED TO SPECIAL FEDERAL GRAND JURY 89-2 (Filing fee $ 400, Receipt Number 1082-6476153)Attorney Patricia A. Mellen added to party Alliance of Nuclear Workers Advocacy Groups(pty:pet), Attorney Patricia A. Mellen added to party Candelas Glows/Rocky Flats Glows(pty:pet), Attorney Patricia A. Mellen added to party Environmental Information Network (EIN) Inc.(pty:pet), Attorney Patricia A. Mellen added to party Rocky Flats Downwinders(pty:pet), Attorney Patricia A. Mellen added to party Rocky Flats Neighborhood Association(pty:pet), Attorney Patricia A. Mellen added to party Rocky Flats Right to Know(pty:pet), Attorney Patricia A. Mellen added to party Rocky Mountain Peace & Justice Center(pty:pet), filed by Rocky Flats Right to Know, Environmental Information Network (EIN) Inc., Alliance of Nuclear Workers Advocacy Groups, Candelas Glows/Rocky Flats Glows, Rocky Mountain Peace & Justice Center, Rocky Flats Downwinders, Rocky Flats Neighborhood Association. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Exhibit Exhibit 1 - Table of Waste Disposal Areas, # 3 Exhibit Exhibit 2 - Grand Jury Subpoenas)(Mellen, Patricia)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. __________________________

In re PETITION of ALLIANCE OF NUCLEAR WORKERS ADVOCACY GROUPS; ROCKY
FLATS DOWNWINDERS; CANDELAS GLOWS/ROCKY FLATS GLOWS;
ENVIRONMENTAL INFORMATION NETWORK (EIN) INC.; ROCKY FLATS
NEIGHBORHOOD ASSOCIATION; ROCKY FLATS RIGHT TO KNOW; AND ROCKY
MOUNTAIN PEACE & JUSTICE CENTER

PETITION FOR DISCLOSURE OF CERTAIN DOCUMENTS
PROVIDED TO SPECIAL FEDERAL GRAND JURY 89-2

Petitioners, by and through their attorney, Patricia A. Mellen of Pat Mellen Law, LLC.,
hereby respectfully petition the United States District Court for the District of Colorado for the
disclosure of certain documents that were provided to Special Federal Grand Jury 89-2 (“Grand
Jury.”) This Grand Jury was impaneled to investigate alleged criminal actions by contractor
Rockwell International Corporation (“Rockwell”) at the Department of Energy’s (“DOE’s”)
former weapons-grade plutonium-239 processing facility, Rocky Flats Nuclear Weapons Plant
(“Rocky Flats”) in Jefferson County, Colorado. In support of this action Petitioners state as
follows:

INTRODUCTION
The stalemate over the safety of Rocky Flats serves no one. Time alone will not resolve
the decades-long dispute between advocates for continued development at or near Rocky Flats
and concerned community groups that continue to strongly dispute the risk it still poses to public
health and safety.

1

The crux of the stalemate is a site-wide determination made by federal and State of
Colorado agencies at the end of the Rocky Flats “clean-up” that the property now held by the US
Fish & Wildlife Service (“FWS”) as the Rocky Flats National Wildlife Refuge (“Refuge”) is
“safe” for “unlimited use and unrestricted exposure.”1
The Rocky Flats managing contractors’ public and business documents that now sit under
the seal of Special Federal Grand Jury 89-2 are critical to evaluating the appropriate application
of the agencies’ determination. As a preliminary matter in anticipation of further litigation, the
Petitioners therefore are seeking disclosure of those documents as necessary and required to
reasonably evaluate the remediation methodology and risk analysis used at Rocky Flats upon
which the agencies’ determination and imminent threats to the region rely.
The statistically driven “safe” determination was made in support of a decision that no
further action was required on that portion of the Rocky Flats property known then as the
Peripheral Operable Unit (“POU.”) The complex risk analysis relies in part on models of
hazardous substance exposure pathways, the geography of the site, the site’s planned end use(s),
and the data provided by the sampling protocol as actually implemented.
A single determination of “safe” was made for the entire POU property, which the FWS
Rocky Flats Refuge website boasts spans 5,237 acres. The “clean-up” also left behind at the
center of the Refuge the Central Operable Unit (“COU,”) which likely will remain a hazardous
waste Superfund site closed to the public far beyond any foreseeable future.
This “unlimited use and unrestricted exposure” determination for the POU enabled many
domino actions, including the delisting of this property from the EPA’s Superfund National
1

“Unlimited use and unrestricted exposure” is a critical technical designation within the U.S.
Environmental Protection Agency’s (“EPA”) Superfund Program where an identified hazardous
waste site no longer requires remediation or institutional controls to protect public health and
safety.
2

Priority List, the transfer of the property to the custody of FWS to manage as the Refuge, and the
transfer of a 300’ slice of the easternmost edge to the Jefferson Parkway Public Highway
Authority (“JPPHA”) as a transportation right-of-way (“ROW.”)
What is not reflected in this “safe” determination is that no hazardous substance sites on
the Refuge ever received any remediation during the “clean-up.”2 It also does not reflect that the
verification sampling protocol provided to the risk analysis for the POU property consisted
substantially of five (5) soil samples for every thirty (30) acre plot on a gridded map, which were
then averaged to one sample to represent each plot.3
Development advocates, whether government agencies or commercial economic
interests, now point to this determination of “safe” as justification that the entire Refuge and the
ROW property may be treated as any other parcel of land, as if the openly acknowledged
contamination and admitted criminal environmental conduct never happened.
Petitioners, who are concerned community groups, argue that this approach constitutes a
dangerous “greenwashing” of the site, where the agencies’ statistically driven determination is
being misapplied and grossly expanded to justify actions far beyond what it reasonably supports.
The documents obtained by the Grand Jury in its investigation of federal environmental
crimes become essential to the Petitioners’ expectation of litigation to protect their own and the
public’s health and safety from the misapplication of the “safe” determination, and the data,
models, and assumptions on which it is based.
2

See the Colorado Department of Public Health and Environment’s website:
https://www.colorado.gov/pacific/cdphe/rocky-flats-current-configuration: “The Peripheral
Operable Unit consists of part of the former security Buffer Zone, where contaminant levels
did not require remediation.” (emphasis added)
3
Kaiser-Hill, RCRA Facility Investigation – Remedial Investigation/Corrective Measures Study
– Feasibility Study Report for the Rocky Flats Environmental Technology Site Appendix A –
Comprehensive Risk Assessment, Volume 2 of 15 Methodology and Data Description,” June
2006, Attachment 3, p. 3.
3

The methodology eventually used to identify specific locations within Rocky Flats
requiring remediation relied in large part on the managing contractors’ documents related to the
use and disposal of hazardous substances, whether planned, accidental or clandestine. These
Individual Hazardous Substance Sites (“IHSS”) were then evaluated and addressed. Outside
reviews of the clean-up have raised material questions about its controls and methodology.
Ongoing reports of contaminated locations that were never identified, evaluated, or addressed
continue to raise the specter that the remediation was incomplete, and that the criteria upon
which the agencies’ determinations were based were at best incomplete.
The openly acknowledged contamination of Rocky Flats and the efforts to remediate it
date back decades. The remediation project deemed complete in 2006 was one of the first of its
kind. Rocky Flats’ highly securitized contaminants and the early timing of the remediation
efforts forced that project and its predecessors to develop custom methodologies to locate,
characterize, and verify the hazardous substance treatment. At roughly 6,500 acres, the sheer size
of Rocky Flats posed unique problems, and the contamination spread from the site to
neighboring properties. DOE’s 1995 clean-up estimate was approximately sixty-five (65) years
and $37 billion.
The cost of this stalemate has been enormous in terms of time, money, and the well-being
of the community. The responsible agencies still are defending decisions and analyses made
more than ten (10) years ago. Concerned community groups are still hosting demonstrations,
speaking out in public, and litigating where necessary in their efforts to keep educating the public
and newly elected or appointed government actors about the site’s history and disputed safety.
Property owners, depending on their local knowledge and levels of disclosure, must invest in
complex due diligence to avoid assuming an unknown risk. Many local governmental bodies are

4

caught in the middle, forced to debate the merits and risks of economic development proposals in
a public process where they cannot ignore the disputed safety concerns.
The documents gathered by the Grand Jury and now under seal are a unique resource that
provides the detailed evidence of whether specific locations or hot spots of unremediated or
undiscovered hazardous substances must outweigh a site-wide “safe” determination made for
other purposes. While theoretically statistically defensible, that site-wide “safe” determination
will be small comfort should an unfortunate construction worker put a backhoe shovel into a
buried 55-gallon barrel of plutonium-laced transuranic waste that eluded the collection of the
five (5) samples in that 30-acre quadrant.
The Petitioners now respectfully petition the Court to permit disclosure of the public and
business documents currently under seal for Special Federal Grand Jury 89-2.

JURISDICTION AND VENUE
1.

This Court has jurisdiction over this petition under 28 U.S.C. § 1331 (federal

question) and Fed. R. Crim. P. (6), because Petitioners’ cause arises under the laws of the United
States, and because the Grand Jury was impaneled and convened in this judicial district;
moreover, civil judicial proceedings brought regarding Rocky Flats regarding federal actions
taken there in the past, present or future would be have been and would be brought in this
judicial district. In addition, this Court has jurisdiction over this petition because the events
occurring during the operation and remediation of Rocky Flats for this petition seeks the
disclosure of information occurred within this judicial district.
2.

Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) because the

Grand Jury was impaneled in this judicial district, and the events occurring during the operation

5

and remediation of Rocky Flats for which this petition seeks information occurred within this
judicial district. Venue also is property under 28 U.S.C. § 1391(c)(2) because the primary
location places of business of the plaintiffs are within this judicial district, and because venue is
otherwise afforded by law pursuant to Fed. R. Crim. P. 6(e)(3).

PETITIONERS
3.

Petitioner ALLIANCE OF NUCLEAR WORKERS ADVOCACY GROUPS

(“ANWAG”) is a grass-roots organization based in Craig, Colorado. Founded in 2004,
ANWAG’s members are advocates, claimants, and individuals with an interest in the health and
well-being of nuclear weapons workers and the illnesses caused by their work. ANWAG also
works collaboratively with other organizations to monitor the implementation of the Energy
Employees Occupational Illness Compensation (“EEOIC”) Program.
4.

Petitioner ROCKY FLATS DOWNWINDERS (“Downwinders”) is a non-profit

organization based in Denver, Colorado. Founded in 2015, Downwinders advocates on behalf of
those impacted by living downwind from the former Rocky Flats Nuclear Weapons Plant near
Arvada, Colorado. Downwinders works with local medical providers and research universities to
study the medical status of the affected local population, and to educate medical providers and
local citizenry to recognize and address Rocky Flats-related medical risks.
5.

Petitioner CANDELAS GLOWS/ROCKY FLATS GLOWS is an organization

founded in 2013 whose focus remains on raising awareness of the ongoing radioactive dangers at
Rocky Flats, while advocating for active and responsible stewardship of the site and the
surrounding areas. Candelas Glows/Rocky Flats Glows seeks to keep the memory of the site's
history alive while advocating for the open acknowledgment of the hazards still present. They
remain committed to working to inform communities both near Rocky Flats and beyond, of risks

6

the site poses to human health, as well as working with local and federal government agencies
and officials. In the tradition of nuclear guardianship, they are looking to memorialize the site,
while honoring workers who put their lives on the line when the plant was in operation; and
acknowledge the residents in the area who have suffered from the contamination of the site. They
hope to convert Rocky Flats from a refuge and recreation area to sacrifice zone that remains
closed for the safety and protection of current and future residents and Colorado visitors.
6.

Petitioner ENVIRONMENTAL INFORMATION NETWORK (EIN) INC. is a

non-profit now based in Lakewood, Colorado. Founded in 1986, formalized in 1991, EIN
representatives chronicled and analyzed events and publications related to the Rocky Flats
Nuclear Weapons Facility site and remediation since 1986. Avid networkers, archivists,
historians and advocates, EIN representatives attended more than nine (9) years of
DOE/CDPHE/HAP meetings and provided testimony focused on Rocky Flats contamination,
health exposures, risks, and remediation. They hosted meetings with Congressional investigators,
consulted for Frontline, Nightline, GMA, other national, international, and local media to keep
these issues in the news and call for accountability. They provided key research resources to
inform general public, Federal and local government agencies such as the DNFSB, ACNFS,
Wolpe Committee, key stakeholders, and other citizen’s organizations around the USA near
similar sites about the risks and broader issues for the communities from these hazards.
7.

Petitioner ROCKY FLATS NEIGHBORHOOD ASSOCIATION (“RFNA”) is a

grass-roots organization based in Arvada, Colorado. Founded in 2017 by Dale Simpson, who is
an EEOICA program claim representative, RFNA brings a satirical and challenging viewpoint to
Rocky Flats-related activities in the 80007 zip code. RFNA interacts with local residents to

7

dispel false and manipulative information about the Jefferson Parkway, the Rocky Flats National
Wildlife Refuge, local builders/developers, and perspectives of local government leaders.
8.

Petitioner ROCKY FLATS RIGHT TO KNOW (“RFR2K”) is a grass-roots

organization based in Arvada, Colorado. Founded in 2016 by two concerned grandmothers, this
organization has rapidly evolved into a recognized community education and advocacy effort.
RFR2K networks with other organizations and individual experts on Rocky Flats-related issues
to inform local citizens about risks, particularly risks to children, through monthly meetings,
colorful protests, and shoe-leather advocacy.
9.

Petitioner ROCKY MOUNTAIN PEACE & JUSTICE CENTER (“RMPJC”) is a

non-profit organization based in Boulder, Colorado. Founded in 1983, members of the RMPJC
have played key roles in organizing protests, representing the public interest during the Rocky
Flats remediation efforts, and resisting the agencies’ efforts to desensitize the public to and
normalize the history and dangers of Rocky Flats. RMPJC has played a strong role using
peaceful protests, public speaking, and litigation where necessary to protect and educate the
public and local governments on the public’s behalf.

RELEVANT FACTUAL BACKGROUND
A. Five of the Imminent Threats at Rocky Flats
10.

The Jefferson Parkway Project (“Parkway.”) JPPHA was recognized in October

2010 as a cooperative contractual agreement between the County of Jefferson, the City and
County of Broomfield, and the City of Arvada.4 JPPHA’s goal is to construct a segment of
limited-access highway to bring Denver closer to a complete outer-belt around the metropolitan
4

Amended and Restated Establishing Contract for the Jefferson Parkway Public Highway
Authority, effective October 4, 2010.
8

area. The segment’s current routing runs in part along the eastern edge of Rocky Flats. This land
was the subject of a disputed transaction in January 2012 where the FWS quit-claim deeded to
JPPHA the 300’wide transportation ROW established by the Rocky Flats National Wildlife
Refuge Act. The JPPHA member agencies have contributed millions in development funds,
along with untold staff time and effort, to bring this project to fruition. JPPHA also needs the
Parkway project to meet progress deadlines to unlock $100 million dollars of related funding
contractually owed or escrowed by the operators of the adjacent Northwest Parkway.5
Local municipalities who have made multi-million dollar investments through JPPHA
cannot be expected to now waive the conflict of interest inherent between this investment and
evaluating any threat to public health. JPPHA has openly stated that it plans no soil testing or
other safeguards as a defense against any unanticipated unremediated contaminants.
The Petitioners oppose this routing of the Parkway. The eastern edge of Rocky Flats,
including but not limited to the Windblown Area, has been well documented to have the most
residual contamination from two famous plutonium fires, and to have the “hottest” hot spots. The
East Gate ingress from Indiana Street was a main thoroughfare for receipt of nuclear materials,
toxic and other chemicals, hazardous materials from other sites, and other contaminants.
11.

The Rocky Mountain Greenway (“Greenway.”) Announced in 2011 by then

Governor John Hickenlooper and then Interior Secretary Ken Salazar, this trail from the Rocky
Mountain Arsenal to Rocky Mountain National Park is part of former President Barack Obama’s
America’s Great Outdoors Initiative. The original routing of the Greenway went around the east
and north perimeter of Rocky Flats along Indiana Street and Colorado Highway 128. While the
specific route keeps changing, the first public indication of an intended route through Rocky
5

See “Summary of the Northwest Parkway Concession and Lease Agreement” at p. 3.
Available at: http://www.northwestparkway.org/PDF/SummaryCLA.pdf.pdf.

9

Flats was announced by FWS Refuge Manager David Lucas to a surprised audience at a Rocky
Flats Stewardship Council meeting in April 2016. Six (6) local municipalities have since
coordinated with FWS to obtain $5 million in US Department of Transportation Federal
Highway Administration Federal Land Access Program (“FLAP”) grant funding to subsidize the
building of two highway crossings for the Greenway. These municipalities imposed various
environmental analyses and/or soil analysis requirements as conditions before committing
matching funds to the project. The Town of Superior declined to participate.
FWS’ David Lucas has long served as the co-chair of the Greenway project committee.
The local governmental agencies that have committed funds to the project again cannot be
expected now to waive any conflict of interest to balance the economic commitment against
public health and safety.
The Petitioners object to the routing of the Greenway through Rocky Flats. This type of
high speed aggressive mountain biking use was never contemplated during the Comprehensive
Conservation Planning (“CCP”) process completed in 2005. This use has never been authorized
by a Compatibility Determination (“CD”) as required by the National Wildlife Refuge System
Administration Act. The FWS has failed to comply with its obligations under the National
Environmental Policy Act to assess the environmental impact of this decision.
12.

The Rocky Flats National Wildlife Refuge Trail Build-out (“Trails.”) Opened in

September 2018 despite pending litigation and public protest, the Rocky Flats Refuge trail
system remains in development and dispute. The robust public engagement process that resulted
in the 2005 CCP governing FWS’ management of the Refuge approved the selection of a
specific set of limited trails. CDs were evaluated and issued authorizing the selected uses
documented in the CCP. The Trails CD expired in 2014, and expressly stated that any

10

reconfiguration of the trails would require significant environmental analysis, which has not
happened.
In 2016 Refuge representatives hosted four contentious “Listening Sessions” that both
severely restricted public comment and telegraphed the position that the FWS would open the
Refuge despite any public resistance. At the December 2016 Listening Session in Boulder bluesky input was sought from lay persons with mountain biking interests and no knowledge of the
contamination issues to suggest trail routes based on appealing terrain.
The Petitioners object to the build-out of the Refuge trail system until a thorough
environmental analysis of the routes has been completed. It is undisputed that no remediation
was done on the Refuge itself, and any residual contamination, known or unknown, poses a
threat to the health and safety of the Refuge visitors, their families, and when tracked back
through and to local communities.
13.

The Rocky Flats National Wildlife Refuge Visitor Center (“Visitor Center.”) Still

in the proposal stage, the current design for the Visitor Center has far exceeded the one approved
in the 2005 CCP. The approved Visitor Contact Station was described as:
A small structure (approximately 750 to 1,000 square feet) will house an
interpretive display and staff office space. The contact station will be the
primary orientation point for visitors where they will collect information
about the Refuge. The station also will serve as the meeting ground for
guided tours and other Refuge programs. Located outside the main parking
area, the contact station will be staffed seasonally (e.g., weekends from
May through October), to provide visitor contact with Refuge staff. 6

Without further public involvement, in August of 2015 the FWS entered into an
Interagency Agreement with DOE, in exchange for $8.3 million, in a completely different

6

U.S. Fish & Wildlife Service, “Rocky Flats National Wildlife Refuge Final Comprehensive
Conservation Plan,” April 2005, p. 75.
11

location at the Refuge, to:7
Design and construction of a Multipurpose Building at or on the Rocky
Flats National Wildlife Refuge for the combined benefit of the DOE and
FWS missions at the site. The Multipurpose Building will be designed in
accordance with USFWS suite of facilities of approximately 3,500 square
feet, consisting of-1,500 square feet of lobby and display area, with
accessible exhibits designed and fabricated specifically for the Rocky Flat
NWR. Multipurpose Building: -150 square feet of exhibit/display storage;
-750 square feet of class/meeting room; - 240 square feet for two, 120
square feet for each office for DOE and USFWS use, 860 square feet for
restrooms, break room, copy room, mechanical room and hallways;
utilities, parking and access to conform with usage; exterior signage;
display design/development and construction. DOE and USFWS expect
that current FWS, DOE and DOE contractor employees, as well as former
DOE/contractor employees. Cold War Museum Board volunteers, and
USFWS volunteers will work together to develop and operate the
Multipurpose Building, design exhibits/displays, and function as volunteer
tour guides. DOE and USFWS will work together to develop and
implement the Multipurpose Building operation plan, including a 75-year
budget baseline for operation and maintenance; use of volunteers/friends
of the Refuge and other potential partnering organizations; USFWS will
be responsible for design and construction and have sole jurisdiction of the
Multipurpose Building for the purpose of providing education,
interpretation, and meeting facilities at the Refuge.

Representatives of FWS have stated that challenges related to the Visitor Center are
premature as the design had not yet been completed.
The Plaintiffs oppose the construction of any visitor facilities, and strongly object to the
cavalier lack of public involvement in this significant change to the approved CCP plans.
14.

The Colorado Oil and Gas Conservation Commission (“COGCC”) Oil and Gas

Development Permit Applications. In October 2018, Highlands Natural Resources Corp., a UKbased company, filed location assessment and drilling permits intended to access oil and gas
reserves in the area adjacent to and directly beneath Rocky Flats. These permits likely would

7

U.S. Department of Energy and U.S. Fish & Wildlife Service, Interagency Agreement, IA #
DE-LM0000433/0001, Requisition Number 15LM000087, Award Date 8/26/2015.
12

have resulted in the use of industry standard hydraulic fracturing (“fracking”) techniques to aid
production of the minerals. There is significant scientific debate over the relationship between
fracking, wastewater disposal, and induced earthquakes. Seismic studies of Rocky Flats indicate
that five faults are in the immediate area; the Golden-Boulder fault, the Valmont fault, the
RMA/Derby Source, the Walnut Creek fault and the Rock Creek fault.8 The 2006 RI/FS
published by Kaiser-Hill openly acknowledges that radioactive and other hazardous substances
were left buried underneath Rocky Flats in the form of building foundations, duct work and
transportation tunnels. The Rocky Flats Cleanup Agreement standards allowed unlimited
residual contaminants below six feet to be left buried in place with no containment.
The Rocky Flats DOE site manager, Scott Surovchak, offhandedly dismissed the
possibility that fracking could disturb the residual contamination, though it is unclear what
scientific knowledge or experience supports his opinion.9 Mike Leonard of the COGCC
confirmed at a November 25, 2018, public opposition meeting that, while currently withdrawn,
these permit applications could be resubmitted at any time.10
The Petitioners oppose any oil and gas production at or near Rocky Flats, particularly any
use of fracking that might lead to induced earthquakes. The potential for disturbance of the
uncontained residual contaminants, migration of those contaminants to the surface or into the
watershed, or unanticipated accidental interaction of these special nuclear or other contaminants
with catastrophic results is unacceptable.

8

Risk Engineering, Inc., “Seismic Hazard Analysis for Rocky Flats Plant, Final Report,”
September 29, 1994, pp. 19-20.
9
Schlossberg, Josh, “Locals wary despite company promise to not frack Rocky Flats,” Boulder
Weekly, November 21, 2018.
10
Id.
13

B. Rocky Flats “Safe” Designation Sampling Protocol Dispute
15.

In September 2006 the Corrective Action Decision/Record of Decision

(“CAD/ROD”) was issued by the DOE, EPA and CDPHE documenting their determination that
the POU, later the Refuge, was found to meet the Superfund’s “unlimited use and unrestricted
exposure” standard.11 12
16.

The CAD/ROD also determined that while the COU did not meet the “unlimited

use and unrestricted exposure” standard, the chosen remedy of “institutional and physical
controls, incorporating continued monitoring and maintenance” was sufficient to protect human
health, thereby ending any further large-scale remediation efforts.13
17.

Kaiser-Hill’s sampling protocol for the Refuge area, which had vast acreage with

few to no identified IHSS’s was:14
After review of the existing surface soil sampling locations, a Sampling
and Analysis Plan (SAP), Addendum 04-01, was prepared in February
2004 (DOE 2004a) to address the criteria of CRA DQO Decision Rule #1,
and to support conclusions that releases to the environment did not
occur outside historical potential release areas. The Addendum was
approved by the U.S. Environmental Protection Agency (EPA) on
February 26, 2004. The SAP was implemented in 2004, where for each
30-acre block across RFETS, five individual samples were collected
and composited, one from each quadrant and one in the center. The
compositing provided a more representative sample for the entire 30-acre
block. The samples were analyzed for radionuclides and metals to
complement the extensive data that had been collected in the Industrial
11

Corrective Action Decision/Record of Decision for Rocky Flats Plant (USDOE) Peripheral
Operable Unit and Central Operable Unit (“CAD/ROD”), p. 5. available at:
https://www.lm.doe.gov/Rocky_Flats/Regulations.aspx#CAD.
12
“The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),
commonly known as Superfund, was enacted by Congress on December 11, 1980.” Available
at: https://www.epa.gov/superfund/superfund-cercla-overview
13
CAD/ROD at p. 3.
14
Kaiser-Hill, RCRA Facility Investigation – Remedial Investigation/Corrective Measures Study
– Feasibility Study Report for the Rocky Flats Environmental Technology Site Appendix A –
Comprehensive Risk Assessment, Volume 2 of 15 Methodology and Data Description,” June
2006, Attachment 3, p. 3.
14

Area and within IHSSs, and allow exposure point concentration (EPC)
calculations in the outlying EUs to be performed. (emphasis added)
C. Environmental History of Rocky Flats
18.

It is openly acknowledged that “Over the decades, manufacturing activities,

accidental industrial fires and spills, and support activities such as waste management resulted in
the release of contaminants to the air, soil, sediment, groundwater, and surface water at Rocky
Flats.”15
19.

In April 1970, E. A. Putzier, Health Physicist of Dow Chemical (“Dow”)

published “A Summary of On Site Radioactive Waste Disposal,” which was created as:
… a compilation of extracted information from records, extrapolation,
calculations and estimates from existing data along with a test of
memories of a number of people in an attempt to piece together a fairly
accurate account of on-site disposal of materials containing radioactivity.
There are obvious omissions in the records, but I believe they are
complete enough to lead to a fairly accurate story.
The appendices include a detailed chronological account of drums buried,
drums accumulated in the 903 area and contaminated oil burned. Included
also are those pieces of correspondence or extracts therefrom which relate
to such things as authority for disposal on site and development of
disposal methods related to problems of getting rid of contaminated oils
and coolants.
20.

In 1974, Dow employees J.B. Owen and L.M. Steward published a Draft

“Environmental Inventory, A Historical Summation of Environmental Incidents Affecting Soils
At or Near the U.S.AEC Rocky Flats Plant,” in partial response to:
On October 4, 1973, the request (by B.W.Colston, Area Manager, Rocky Flats
Area Office, U.S. Atomic Energy Commission) was broadened to include the
development of a comprehensive plan of action dealing with the investigation and
unqualified location of all contaminated soil on the Rocky Flats plant site.
…

15

CAD/ROD at p. 8.
15

The (report) is the expanded and detailed information which was requested and is
the result of searching records, reviewing literature, and numerous discussions
with a large number of employees many of whom have been employed at Rocky
Flats since 1952.
21.

In 1974 and 1975 additional parcels adjoining Rocky Flats were purchased to

expand the Buffer Zone (“BZ”) surrounding the plant’s main Industrial Area (“IA,”) resulting in
the site’s final overall approximately 6,500 acres.16
22.

Also in 1975, Dow, which had managed Rocky Flats since its development in

1951, was removed and replaced by Rockwell.17
23.

By 1984 the EPA had already proposed that Rocky Flats be added to the

Superfund: National Priority List, and the listing was announced in September 1989.18
24.

In December 1989 nuclear production at Rocky Flats was abruptly halted, leaving

materials as they lay in progress, though efforts were made to address environmental issues and
bring the plant operations back on line.19
25.

In August 1992 ChemRisk® submitted to CDPHE its “Project Task 3&4 Final

Draft Report: Reconstruction of Historical Rocky Flats Operations & Identification of Release
Points” that acknowledged in section 5.3 On-Site Waste Disposal Practices: 20
While most hazardous and radioactive wastes from Rocky Flats operations
have been shipped off the site for disposal, there are about 178 inactive
waste sites within the plant boundaries. Some of the involved areas have
been the sites of storage, burial, incineration, detoxification, and land
16

U.S. Department of Energy: Legacy Management, “CERCLA/RCRA Fact Sheet, Rocky Flats,
Colorado, Site (“Rocky Flats Fact Sheet,”)” p. 1. Available at:
www.lm.doe.gov/rocky_flats/fact_sheet-rockyflats.pdf.
17
CAD/ROD at p. 12.
18
CAD/ROD at p. 2.
19
Rocky Flats Fact Sheet at p. 1.
20
ChemRisk for the Colorado Department of Health, “Final Draft Report: Reconstruction of
Historical Rocky Flats Operations & Identification of Release Points, Project Tasks 3&4 Draft
Report, August 1992, p. 184-88, available at:
https://www.lm.doe.gov/cercla/documents/rockyflats_docs/SW/SW-A-005267.pdf.
16

application of various forms of Rocky Flats waste. Some of the sites have
been cleaned up, while others have not been disturbed since their period of
activity ended.
It should be noted that the (partial list of) sites depicted in Figure 5-4
(from) Table 5-2 are those associated with incidents of purposeful disposal
of waste. There are numerous documents describing cases of accidental
spills, for example Own (sic) and Steward, 1974. For the purposes of this
project, accidental spills have been evaluated as part of the accidents and
incidents investigation described in Section 6.
Table 5-2 describes approximately 50 locations of on-site waste disposal
at the Rocky Flats Plant. The locations of these areas are depicted in
Figure 5-4. Some of the areas became operational in the early days of
plant operation. Most disposal practices have ended, but several of the
noted areas remain active as part of modern-day operations of the facility.
(Exhibit 1)
26.

In 1992, changes in the US military complex ended the need for continued

production at Rocky Flats, and the final shipments went out in 1994.21
27.

DOE’s estimate in early 1995 for “cleaning up” Rocky Flats stood at

approximately sixty-five (65) years and $37 billion dollars. 22
28.

On August 7, 1997, then Energy Secretary Federico Pena, who also was Mayor of

Denver at the time of the 1989 Federal Bureau of Investigation (“FBI”) raid at Rocky Flats,
announced in public remarks in Denver that Rocky Flats had been chosen as one of three
“Accelerated Closure Pilot Sites,” and the “clean-up” would be completed within ten (10) years
for only $7 billion.23
29.

Kaiser-Hill was given an incentive-based contract with significant performance

bonuses contingent on meeting the accelerated closure timeline and budget.

21

Rocky Flats Fact Sheet p. 2
Rocky Flats Fact Sheet p. 2
23
Text of Federico Pena’s Speech, Defense Nuclear Facilities Safety Board, Meeting Minutes,
August 8, 1997.
22

17

30.

The accelerated closure forced tradeoffs and changes in the underlying

commitments and assumptions about the thoroughness of the remediation process that form the
roots of the current stalemate: 24
… the agency representatives and the contractor have consistently worked
from the assumption that they would pursue the best possible cleanup
within the limitations of available time (a cleanup deadline of 2006) and
funding.
and
“It’s all about this tradeoff. But certain groups reject the time line and
reject the budget. The fact is that the fiscal constraints to this contract are
so blatantly real that we just have to emphasize [the fact that]: Four billion
dollars is what [Rocky Flats is] getting, it’s irresponsible to ask for more.
And that message has been conveyed by the congressional office,[and] on
a one-on-one basis to some key people. But, you know, the way I look at it
is: the government has basically said that they’re willing to give Rocky
Flats four billion dollars to clean this place up. And, that’s a whole lot of
money. And, we can get a great cleanup for that. And, there’s a lot of
possible outcomes on what the end-state looks like.”
and
(Researchers) were explicitly informed by agency personnel that the DOE
and Congress had produced an agreement that guaranteed yearly
appropriation of funds for the Rocky Flats cleanup as long as three
conditions were met: 1) the cleanup be completed by 2006; 2) the cost and
scope of the cleanup be contained to the allocated amount; 3) conflict in the
community be curtailed (particularly given the history of public protest at
Rocky Flats). This agreement, made in trust, was (and continues to be)
validated through ongoing annual appropriations to Rocky Flats. Rocky
Flats was in an advantageous position in that very few of the other sites in
the DOE complex had been guaranteed (albeit conditionally so) annual
appropriations. But as those funds were “conditional”, the contractor and
the agencies were placed in the position of having to ‘minimize conflict’
while meeting bottom-line budget limitations regardless of any certainty
24

Satterfield, Terre and Levin, Joshua, Risk Communication, Fugitive Values, and the Problem
of Tradeoffs: Diagnosing the Breakdown of Deliberative Processes,” p. 15. Available from the
EPA at:
https://yosemite.epa.gov/SAB/sabcvpess.nsf/06347c93513b181385256dbf00541478/73220ad6be
d9431385256e1c004540b1!OpenDocument
18

that cleanup could actually be achieved with the available resources and
within the agreed upon time line.
31.

In October 2005 Kaiser-Hill announced it had completed the accelerated closure

on budget and ahead of schedule.
32.

Upon information and belief Kaiser-Hill earned an estimated $340,000,000 in fees

and performance bonuses over the course of its contracts at Rocky Flats.

D. Remediation Verification Concerns
33.

Since its publication in August 2000, verification of the thoroughness of a

Superfund site remediation is generally undertaken using MARSSIM, the EPA’s Multi-Agency
Radiation Survey and Site Investigation Manual:25
The MARSSIM provides information on planning, conducting, evaluating,
and documenting building surface and surface soil final status radiological
surveys for demonstrating compliance with dose or risk-based regulations
or standards.
The MARSSIM is a multi-agency consensus document that was developed
collaboratively by four Federal agencies having authority and control over
radioactive materials: Department of Defense (DOD), Department of
Energy (DOE), Environmental Protection Agency (EPA), and Nuclear
Regulatory Commission (NRC).
The MARSSIM’s objective is to describe a consistent approach for
planning, performing, and assessing building surface and surface soil final
status surveys to meet established dose or risk-based release criteria, while
at the same time encouraging an effective use of resources.
34.

On September 14, 2004, Frazier Lockhart, Manager of DOE’s Rocky Flats Project

Office, sent a letter to Nancy Tuor, President and CEO of Kaiser-Hill, to both provide KaiserHill with direction related to applying MARSSIM at Rocky Flats, but also specifically

25

U.S. Environmental Protection Agency, “Multi-Agency Radiation Survey and Site
Investigation Manual (MARSSIM),” Revision 1, August 2000, Abstract.
19

instructing Kaiser-Hill to “evaluate the current survey plan to determine additional data needs for
incorporating MARSSIM” at no impact to the existing contract.26
35.

DOE also “commissioned the Environmental Survey and Site Assessment

Program of the Oak Ridge Institute for Science and Education (ORISE) for Independent
Verification (IV) of the Rocky Flats Surface Radiological Characterization.”27
36.

On February 25, 2005, ORISE reported its findings of a document review of

Kaiser-Hill’s planned “verification” of its own remediation work at Rocky Flats, and it
highlighted several shortcomings, including but not limited to:28
ESSAP is performing independent verification (IV) activities at the Rocky
Flats Environmental Technology Site (RFETS), and as such, it seems
confusing for Kaiser-Hill (K-H) to refer to their plan for final status survey
of the site as a ‘verification plan.’ The conventional name of the survey
performed by the contractor to demonstrate that radiological conditions
satisfy release criteria is the final status survey. Therefore, ESSAP
recommends that K-H give due consideration to renaming the subject
plan.
K-H makes the point that their survey approach exceeds the guidance in
the Multi-Agency Radiation Survey and Site Investigation Manual
(MARSSIM) for final status surveys. They justify this assertion based on
the fact that a risk assessment will be performed to supplement the
radiological survey. While they may be correct in that narrow context, in
general, if the Rocky Flats final status survey were to follow the
MARSSIM guidance the survey effort would be substantially greater than
that offered in this draft plan.
37.

In May 2005, before Rocky Flats was reconfigured from the IA and BZ to the

COU and the POU, the Agency for Toxic Substances and Disease Registry published its final

26

Frazier R. Lockhart, Department of Energy Rocky Flats Project Office, Memorandum, “MultiAgency Radiation Survey and Site Investigation Manual Methodology for Site-Wide Surface
Radiological Characterization and Independent Verification,” September 14, 2004.
27
Id.
28
Eric W. Abelquist, Environmental Survey and Site Assessment Program, Letter to John
Rampe, Rocky Flats Project Office, February 25, 2005. Attachment p. 1.
20

“Public Health Assessment for the entire Rocky Flats Environmental Technology Site,” and
offered this evaluation: 29
Furthermore, on-site contamination levels will not be a public health
hazard in the future, so long as site access is restricted. Any future plans to
allow public access to REFTS property must be carefully reviewed,
considering the amounts of environmental contaminants that remain on the
site after DOE’s (sic) completes its cleanup projects.
38.

In June 2006 Kaiser-Hill published its RCRA Facility Investigation – Remedial

Investigation Corrective Measures Study – Feasibility Study Report, including multiple volumes
of analysis of samples collected on or after June 28, 1991.
39.

The verification sampling undertaken by Kaiser-Hill in the Refuge was based

primarily on five samples for every 30 acre plotted, samples which also were then averaged to
determine a single point of information.
40.

In July 2006 the U.S. Government Accountability Office (“GAO”) published

“Nuclear Cleanup of Rocky Flats: DOE Can Use Lessons Learned to Improve Oversight of
Other Sites’ Cleanup Activities,” where it documented these shortcomings in DOE’s oversight of
the vital verification data: 30
One of the most important aspects of the cleanup process was ensuring the
validity of the data used to determine whether the site had been remediated
to the agreed-upon levels. However, DOE did not complete the
independent and management assessments required by the cleanup
agreement to ensure that these data quality controls were working as
intended.
And

29

Agency for Toxic Substances and Disease Registry, “Public Health Assessment for Rocky
Flats Environmental Technology Site,” May 13, 2005, p. 55.
30
US Government Accountability Office, Report to Congressional Requestors, GAO-06-352,
“Nuclear Cleanup of Rocky Flats: DOE Can Use Lessons Learned to Improve Oversight of
Other Sites’ Cleanup Activities,” July 2006, pp. 48-9.
21

DOE’s failure to conduct independent assessments is particularly troubling
because of the importance of the cleanup and residual contamination data.
These data were not only the basis for EPA’s and Colorado’s approvals of
the accelerated cleanup actions, but also the foundation for EPA’s and
Colorado’s pending decisions about the overall sufficiency of the site’s
cleanup. Without independent assessments of the contractor’s data quality
control measures, DOE had no assurance that the controls were working as
intended.
Also troubling was that EPA and Colorado—the regulatory agencies that
jointly approved the site’s quality assurance project plan and are
responsible for ensuring its implementation—were unfamiliar with these
assessment requirements. When we discussed with EPA officials DOE’s
failure to conduct independent or management assessments, they
acknowledged that their confidence in the data quality would have been
increased had DOE completed these assessments.
A DOE official said he had no explanation for DOE’s not conducting the
required assessments, other than that DOE officials had reviewed
sampling and analysis plans, remediation plans, and closeout reports, and
discussed with the contractor any data quality issues that arose.
41.

This GAO report also points out that the DOE’s planned independent verification

of the clean-up was abandoned before it was complete. 31
OE’s planned verification for the cleanup at Rocky Flats was twofold:
First, DOE asked the contractor to develop a final scanning and sampling
plan, and second, DOE asked its Oak Ridge Institute for Science and
Education (ORISE) to develop a separate verification plan that included a
review of contractor-conducted scans for remaining radiological
contamination.
However, DOE chose not to complete several of the plan’s objectives,
including part of ORISE’s review. A DOE official said they had decided
that these activities would not provide sufficient additional information to
justify their completion, but he had no documentation to support this
decision. As a result, DOE lost the opportunity to independently verify the
sufficiency of several aspects of the cleanup.
….
Lacking clear guidance, DOE’s project manager at Rocky Flats said he
took a common sense approach that, in his view, fulfills the intent of
31

Id. at pp. 50-1
22

DOE’s policy by cleaning the site up through the CERCLA and RCRA
process. That is, he believes that the regulatory agencies’ approvals of the
radiological cleanup actions at the site constitute independent verification.
42.

The September 2006 CAD/ROD accepted Kaiser-Hill’s findings and endorsed the

statistical extrapolation that the cumulative average of the samples taken according to KaiserHill’s protocols the Refuge was safe for “unlimited use and unrestricted exposure.”
43.

This determination of “safe” is the basic underlying assumption upon which the

advocates of the imminent threats to Rocky Flats rely to proceed with plans for economic and
other development at or adjacent to the site.

E. Special Federal Grand Jury 89-2
44.

In June 1989, the DOJ, EPA and FBI conducted a raid at Rocky Flats where 135

boxes of records and other documents were seized.32
45.

On August 1, 1989, Special Grand Jury 89-2 was sworn in to investigate

suspected environmental crimes at Rocky Flats.33
46.

Concurrent with the raid at Rocky Flats an additional forty-nine (49) boxes of

records and documents were seized from the DOE offices in Albuquerque.34
47.

During this investigation the Grand Jury gathered some public and business

documents by use of its subpoena power, including but not limited to: (Exhibit 2)35

32

U.S. v. Rockwell, U.S. District of Colorado, Criminal Case No. 92-CR-107, “Plaintiff’s
Sentencing Memorandum,” March 26, 1992, p. 3.
33
Id.
34
Id.
35
These subpoenas appear on the public record of: Cook v. Rockwell Int'l Corp., 181 F.R.D. 473
(D. Colo. 1998), “Representative Plaintiffs' Memorandum of Points and Authorities in Support
of Motion to Set a Schedule for Further Proceedings Pursuant to Fed. R. Civ. P. 16 and 23,”
Exhibit A, filed February 10, 1993.

23

Subpoena 9705 – Dated August 16, 1989
Subpoena 9706 – Dated August 16, 1989
Subpoena 1005 RF – Dated March 16, 1990
Subpoena 1045 RF – Dated July 23, 1990
Subpoena 1061 RF – Dated August 31, 1990
Subpoena 1064 RF – Dated September 4, 1990
Subpoena 1067 RF – Dated September 10, 1990
Subpoena 1106 RF – Dated November 29, 1990
Subpoena 1130 RF – Dated January 18, 1991
48.

Upon information and belief, the Grand Jury also received other public and

business documents during the course of its investigation, such that: 36
By means of grand jury subpoenas and other formal and informal requests,
the investigation gathered more than 760 boxes of documents and
information, and the investigation reviewed an estimated three and a half
million pages of documents.
49.

On March 26, 1992, the DOJ announced that Rockwell had entered into a plea

agreement pleading guilty to ten (10) criminal violations of federal environmental law, and
Rockwell eventually paid a then-record $18.5 million fine.37
50.

This plea agreement terminated the Grand Jury’s investigation and service.38
PETITIONERS’ REQUEST FOR DISCLOSURE

51.

This Court has discretion pursuant to Federal Rules of Criminal Procedure Rule 6

to order disclosure of Grand Jury Materials “preliminarily to or in connection with litigation.”
Grand Jury materials otherwise sealed may be disclosed by order of a Court when
“preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(1).
The Plaintiff must demonstrate that the request for disclosure is consistent with Rule 6’s intent,

36

Id. at pp. 3-4
Id. at p. 4
38
Id. at pp 4-5.
37

24

… the Rule contemplates only uses related fairly directly to some
identifiable litigation, pending or anticipated. Thus, it is not enough to
show that some litigation may emerge from the matter in which the
material is to be used, or even that litigation is factually likely to emerge.
The focus is on the actual use to be made of the material.
United States v. Baggot, 463 U.S. 476, 480, (1983).
Here, the Petitioners are requesting the disclosure of the Grand Jury documents directly
related to identifiable pending and/or anticipated litigation. Plaintiffs anticipate litigation will be
required to oppose the imminent threats as efforts short of litigation have not been fruitful. The
documents are being sought as both evidence of specific harm and damages posed by those
imminent threats, and as required due diligence under F.R.C.P. Rule 11. There is no use for
financial or other gain intended by this disclosure request.
52.

Disclosure of the requested public and business documents is supported by

particularized need.
It is well settled law in the 10th Circuit that in order to overcome the presumption of
secrecy to protect the functioning of the Grand Jury system the Petitioner for disclosure must
demonstrate a particularized and not general need for the materials requested. U.S. ex rel. Stone
v. Rockwell Int'l Corp., 173 F.3d 757, 759 (10th Cir. 1999).
Here, Petitioners have a particularized need to demonstrate harm that will result from the
aforementioned imminent threats at Rocky Flats. The advocates rely on a determination by the
responsible agencies that the entire 5,237 acres of Refuge is safe for “unlimited use and
unrestricted exposure.” Documentation published by those agencies acknowledges that
determination was based on very limited sampling outside the COU. When challenged the
agencies fail distinguish this fact in their statements that the risk assessment considered millions
of samples taken at Rocky Flats. The CDPHE acknowledges that no remediation actions were
25

taken on the Refuge. The harm posed by the imminent threats is localized to specific portions of
the larger property. The public and business documents obtained by the Grand Jury for the
purposes of investigating environmental crimes are exactly the specific records needed to
identify and precisely locate hazardous substances on the Refuge property that were never
remediated. Only a review of the source documents created by Rocky Flats’ managing
contractors can provide accurate proof to contradict the sampling protocol and risk assessment
used to determine the overall site is “safe” as relied on by the advocates of the imminent threats.
53.

The specific public interest in the disclosure of these public and business

documents to protect the public health and safety at Rocky Flats outweighs the generalized
public interest in the need for Grand Jury secrecy.
“Once a party makes the required showing of particularized need, the court must weigh
the particularized need against public interests ‘served by safeguarding the confidentiality of
grand jury proceedings.’” In re Special Grand Jury 89-2, 143 F.3d 565, 571 (10th Cir. 1998).
Here, the Petitioners are seeking disclosure only of either public documents or documents
created in the routine course of business by the managing contractors at Rocky Flats. The
Petitioners’ purpose in seeking these records is to prevent harm to themselves and the public
health and safety of the entire region. This public health and safety will be damaged if the
imminent threats proceed based on a statistically based generalized finding that the entire Refuge
is safe, only to discover that areas that were not remediated and not sampled contain dangerous
hazardous substances. Petitioners’ request for disclosure of these documents, and not for any
transcripts, reports, or other notes, poses no threat to any individual who appeared before or was
investigated by the Grand Jury. The need to protect the public health and safety from a specific

26

threat through the disclosure of limited information created for purposes unrelated to the Grand
Jury system outweighs any threat this might pose.
54.

In the alternative, these public and business documents should not be considered

“matters before the Grand Jury” under U.S. v. Dynavac, Inc.
Although a matter of first impression in the 10th Circuit, the 9th Circuit has analyzed
requests for disclosure of public and business documents to consider if the documents actually
are “matters before the Grand Jury” in the same manner as transcripts of witness testimony,
deliberations, interview notes, and reports. United States v. Dynavac, Inc., 6 F.3d 1407, 1412
(9th Cir. 1993).
However, Rule 6(e) “is intended only to protect against disclosure of what
is said or takes place in the grand jury room ... it is not the purpose of the
Rule to foreclose from all future revelation to proper authorities the same
information or documents which were presented to the grand jury.” United
States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.1960).
Thus, if a document is sought for its own sake rather than to learn what
took place before the grand jury, and if its disclosure will not compromise
the integrity of the grand jury process, Rule 6(e) does not prohibit its
release. Id. See also DiLeo v. Commissioner, 959 F.2d 16 (2d Cir.)
(reaffirming Interstate Dress's status as the law of the circuit), cert.
denied, 506 U.S. 868, 113 S.Ct. 197, 121 L.Ed.2d 140 (1992).
Id. at 1411–12.
The distinction between documents created for other purposes is critical to avoid a
situation where an entity under investigation by a Grand Jury could in fact provide unique
incriminating documents that would then never be available to the civil litigation process. Id. at
1413 (‘... a savvy party under grand jury investigation could effectively insulate documents from
anticipated civil discovery simply by turning over incriminating documents to the grand jury.’)
When the grand jury investigation is already terminated and an indictment
has been issued, only “institutional” concerns are implicated by the
documentary disclosure. See generally Nervi, FRCrP 6(e) and the
27

Disclosure of Documents Reviewed by a Grand Jury, 57 U.Chi.L.Rev.
221, 230 (1990). The fear of compromising future grand jury proceedings
is further reduced when the request is for business records created for
purposes independent of grand jury investigations, which have legitimate
uses unrelated to the substance of the grand jury proceedings. In re Grand
Jury Investigation, 630 F.2d 996, 1000 (3d Cir.1980), cert. denied, 449
U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981); SEC v. Dresser
Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.) (en banc), cert. denied,
449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). In sum, we think that
the disclosure of business records independently generated and sought for
legitimate purposes, would not “seriously compromise the secrecy of the
grand jury's deliberations.” DiLeo, 959 F.2d at 19 (quoting In re Special
March 1981 Grand Jury (Almond Pharmacy), 753 F.2d 575, 578 (7th
Cir.1985)).
Id. at 1411.
Here, the documents Petitioners request be disclosed were public or created in the regular
conduct of the business of Rocky Flats’ managing contractors. The disclosure is sought solely in
support of litigation either planned or anticipated regarding the aforementioned imminent threats
at Rocky Flats. These public and business documents obtained by Special Federal Grand Jury
89-2 describing contamination at Rocky Flats provide the accurate and specific information
needed to counter the generalized defense that the entire Refuge site has been determined to be
safe for “unlimited use and unrestricted exposure.”

PRAYER FOR RELIEF
For the foregoing reasons, the Petitioners respectfully request the disclosure of all public
and business documents provided to the Special Federal Grand Jury 89-2, either in response to a
subpoena or through any other means, and any other further relief that the Court may deem in
these circumstances.

28

DATED this 10th day of January, 2019.

Respectfully submitted,
Patricia A. Mellen
PAT MELLEN LAW, LLC
1888 N. Sherman Street, Suite 200
Denver, Colorado 80203
[phone]
Attorney for Petitioners

29

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing, including all exhibits has
been filed this 10th day of January 2019, and served via Certified Mail to the undersigned counsel
organizations.

Office of the United States Attorney
1200 Federal Office Building
1961 Stout Street
Denver, CO 80294
Hadden, Morgan & Foreman, P.C.
150 E. 10th Avenue
Denver, CO 80203

PAT MELLEN LAW LLC

/s/ Patricia A. Mellen
Patricia A. Mellen

30