They believe 2,600 pounds of Rocky Flats plutonium has gone missing and that the government has tried to cover it up.
And every time dirt near the now-defunct nuclear-trigger plant is disturbed, they believe, their homes are at risk for exposure.
After 15 years of legal skirmishing, about 12,000 property owners near the site of the Cold War-era weapons facility will see their allegations – contained in a class-action lawsuit – go to trial today in federal court in Denver.
The property owners, who say the U.S. government has waged an unfair war to keep plant operations secret, contend escaped plutonium has contaminated their properties. They want $500 million in damages.
“The conduct of the Department of Energy and their contractors is a national disgrace,” said Merrill Davidoff, the plaintiffs’ Philadelphia-based lawyer.
The U.S. Department of Energy has hired one of the country’s most powerful law firms – Kirkland & Ellis – to fight what attorneys call untrue allegations that could set a bad precedent.
Much of the material that earlier was classified as missing was recovered in the disassembly of the plant, said David Bernick, a Chicago lawyer who represents plant operators Rockwell International and Dow Chemical.
“There’s no risk to living in that area,” Bernick said.
The trial, which is the largest environmental class action in Colorado history, is expected to last eight to 12 weeks.
“The main thing they’re going to have to prove is this migration of plutonium – that people knew about it, and it affected people’s willingness to buy,” said Christopher Mueller, a law professor at the University of Colorado at Boulder, who is not connected to the case.
The lawsuit is just one chapter in the troubled history of the plant, which was 16 miles northwest of downtown Denver before it was demolished.
The federal government built Rocky Flats as part of a dramatic increase in nuclear-weapons research and production in the late 1940s and early 1950s.
Dow Chemical was the first contractor to run the plant for the government and did so through 1975, when Rockwell International took over.
During the plant’s history, the plaintiffs contend, there were several plutonium releases.
Those happened during industrial fires at the plant in 1957 and 1969, the property owners said in court pleadings. More plutonium-contaminated waste seeped into the ground from barrels stored at an area called the “903 pad.”
Last month, the Energy Department disclosed the existence of a dozen more so-called “hot spots” near the 903 pad and said they would be cleaned up.
Davidoff said such finds will continue for decades and are proof that there is ongoing risk.
The plant’s sloppy procedures were the basis for what arguably was the most significant event in the facility’s history: a 1989 FBI raid and subsequent criminal investigation in which Rockwell International pleaded guilty to 10 counts of felony environmental violations.
Worried property owners banded together and, in 1990, filed the lawsuit claiming damages from plutonium pollution.
Gertrude Babb, one of the original plaintiffs, owned 13 acres near Rocky Flats. Babb, now 85, said she and her husband were getting too old to handle the property and decided to sell it about 10 years ago.
Babb, who now lives in Golden, said the property was difficult to sell and that anyone who was even marginally interested was concerned about potential contamination.
“We had to sell for a lot less,” she said, estimating they had to take at least 25 percent less than what it was worth.
Babb has little faith that the litigation will result in an award she will see. She accused the federal government of expending money and effort to block the release of information instead of settling the case.
Because the federal government indemnified the contractors, any monetary judgment in the case would be paid by taxpayers, who also are paying defense legal bills.
A settlement similar to the one the government agreed to in 1989 at an Ohio facility would pave the way for more litigation, Bernick said. The Energy Department paid $78 million to those near a uranium processing plant in Fernald, Ohio.
“What the department decided to do is consolidate the defenses of these cases and keep on litigating them,” Bernick said. “The government believes this case (Rocky Flats) doesn’t have merit.”
As to allegations that the Energy Department has improperly invoked national-security concerns to keep under wraps information that would prove damaging in the lawsuits, a spokesman for the U.S. attorney’s office said that was untrue.
The documents were withheld based on Energy Department guidelines established long before the lawsuit was filed, said Jeff Dorschner of the U.S. attorney’s office.
Davidoff, who represents the property owners, characterized the 15-year lag between the lawsuit filing and the trial as a “war of attrition” against the property owners.
“They’re more concerned with paying lawyers and experts to defend the case than to settle it or clean up plutonium hot spots on neighbors’ land,” he said. “It’s an outrage.”
Staff writer Alicia Caldwell can be reached at 303-820-1930 or acaldwell@denverpost.com.
