Created from WordStar for DOS 7D, 15/Oct./06.

Trials of the Rocky Flats Nuclear Weapons Plant SuperFund MegaSite Operators: Rockwell International & The Dow Chemical Company.

Forward: The following are true, appalling examples of how big government and their contractors work when oversight is absent, inadequate or is operating in `national security' or `top secret', among apathetic citizenry. Read: let's do anything we want and sock the taxpayers with the bills! Citizens must always force oversight on a stubborn government and its contractors, especially when they have 'sole supplier contracts'.

The following court transcripts are the whole, unbelievable, closing arguments in the prosecution of sloppy, irresponsible, negligent, totally incompetent plutonium processing operators & operations of the Rocky Flats Nuclear Weapons Plant SuperFund MegaSite (RFP)*. This is just 25 kms upwind and upstream of one of the largest population centers in the Old West.

Some Scientists see Plutonium 239 as one of the five most toxic substances known to man. Its non settling particulate size found in 'fugitive emissions' makes it much worse. Even worse yet, its pyrophoric nature means that it burns spontaneously in air and thus necessarily forms too small to filter molecular sized particles of PuO2. This fact wasn't really that important on a practical level, since plant contractors would simply puncture filters in the huge filter plenums, installed to protect the communities, with a screwdriver, to protect the , instead of replacing the filters!

The polluters peddled the lies that plutonium had little risks, was under control, and wasn't continually migrating off the plant site as `fugitive emissions', with the help of expensive PR firm's technically incompetent ignoramuses. Among other things they proclaiming plutonium oxide(s) were insoluble and thus immobile in the environment, inspite of published, peer reviewed scientific findings to the contrary. These lies were peddled at poorly advertized public meetings and in the press. Some RFP employees and environmental contractors actually stated in public meetings that exposure to low levels of plutonium were actually beneficial to longevity and good health!

The Rocky Flats Cleanup Commission (RFCC) found and published the truth, proving that the government & its contractors cannot be trusted, and that victims must do the research needed to protect themselves and shut down polluting operations. Colorado is the only State in the Union that has a plutonium in soil standard. The soil reference standard from the National Institute for Standards and Technology [formerly the National Bureau of Standards], made this Standard Reference Material from soils taken from just inside the outer most perimeter fence at the SE corner of the RFP!

This text was written by Marsh, who, along with Paula and Sue, and about a dozen others, were the founding members of the RFCC that administered the Technical Assistant Grant (TAG) from the U.S. Environmental Protection Agency, starting in 1988 thru 1995. It was illegally defunded in a totally arbitrary and capricious manner by Region 8, U.S. Environmental Protection Agency, because we were too effective, competent, and couldn't be bought nor paid off. TAGs have a very strict charter that precludes membership of anyone connected with the polluters' in question, their relatives, and pollutors' attorneys, and other conflicts of interest. The E.P.A., along with a totally spineless state health department did the dirty work that included distribution of dirty hush money from D.o.E., to key locals and other crooks. They then started a Citizens Advisory Board (CAB), in 1995, that never produced anything of value to downwinders but deflected criticism from the government and its crooked contractors. Advice from this board was essentially never taken. The RFP CAB was staffed with loads of incompetent, unprepared people with tons of conflicts of interest.

The trial was about corporate crimes that were against the People, good business practices, the government, the environment, future generations, contractors, economics, morals, and taxpayers. These crimes maximized profits for unprofessional corporate liars, crooks and thieves. From the beginning in 1952, the DOW Chemical Company was reported, by the old timers, to have employed plant construction workers to provide these delicate, dangerous, risky, toxic operations, that were poorly understood, in spite of lacking any relevant education needed for such work. This included processing plutonium! These contractors showed no respect for local people, employees, nor the environment. This continued to the final demolition and "cleanup" of the site in December, 2005. The former operation is still swimming in controversy of defrauding the taxpayers.

Later on, totally inappropriate people were arrogantly hired to conduct day to day ultra high risk manufacture of plutonium pits (triggers), which are atomic bombs needed to 'trigger' the thermonuclear explosion in all the 'nukes' of the entire U.S. nuclear arsenal. This was the norm for highly paid plant contractors. Some workers processing plutonium never finished high school and had careers in fine art! In at least one such case this was actually good news, for one became a key whistleblower because of a letter they wrote that was intercepted by Marsh after being rejected by dozens of others who are paid to protect us! Paying Scientists' wages to folks who were totally unqualified, who would otherwise be flipping burgers, was done to keep out qualified professional Scientists and Nuclear Technicians who would blow the whistle. In the end, this policy failed miserably as the crimes and pollution continued, resulting in the infamous raid of the RFP, ironically, in the early morning hours of 6 June, 1989, to the hour of the 45th anniversary of the Allied Invasion, in Normandy, France - the beginning of the end of adolf hitler. This was the only time in American history when one arm of the Federal government attacked another with guns drawn!

The beginning of the end started when James S. Stone, P.E., was illegally fired by an arrogant Rockwell International (RI) and went to the Federal Bureau of Investigation to report environmental crimes and violations of the False Claims Act. He soon attracted the undivided attention of another American hero, Special Agent, Jon Lipsky. He had to get permission to proceed from the highest levels in the Land. Please see: www.jonlipsky.com. The rest is history. Call for Marsh's fascinating presentation(s) on this and other such topics. Will the present Bush regime learn from this disaster and change its same old ways?

The first to be tried, pp 5058 thru 5276, was Mr. James S. Stone, P.E., a real American Hero, who wouldn't shutup nor go away, and stood up fearlessly to the crooks, sycophants, weasels & lap dogs, and relentlessly pursued the case: THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OFCOLORADO, 89 M 1154), Stone v. Rockwell. This was the consummate David v. Goliath battle, under the False Claims Act, 31 USC Sec. 3729. He prevailed in the end in spite of mountains of roadblocks, stonewalling contractors, his first legal firm's probable collusion with the defendant, and three dozen frivolous defense appeals from R.I.'s spineless, deceitful, unscrupulous lawyers who stalled the trial for months and months but not the outcome! The closing arguments of the defendants' senior attorney were particularly arrogant, immoral, hollow, and illegitimate. But he was being paid really big money [our tax dollars] to defend the indefensible.

This case patiently revealed mountains of damning testimony, as well as countless, true, unreported day to day spills, accidents, and 'unexpected occurrences', from once top secret diaries of former plant supervisors. Some of the most incriminating testimony starts near p. 5065. 'Pondcrete' & 'Saltcrete' was made by mixing portland cement with dangerous, plutonium containing sludges from the bottoms of holding ponds. Hundreds of illegally stored, one ton cardboard boxes of this mixture failed to hardened and collapsed due to the fact they failed to use enough cement and totally failed to have a suitable QC/QA program to discover this problem in time. This was endemic to many extremely lucrative operations performed by R.I. with its' sole supplier contracts. All of these revelations were the complete opposite of what plant contractors and the U.S. Department of Energy were telling concerned citizens, watchdog groups, and activists in public presentations and their publications. As it turned out, nearly all plant contractor public statements were false while all statements of plant opponents and the suspicious were true, no matter how radical or unbelievable.

Sadly the trial was interrupted by the timothy mcveigh trial, the infamous Oklahoma City Bomber. Many say that mcveigh only killed (murdered) 168 citizens, but the Plutonium 239 that was knowingly spilled, illegally dumped, and allowed to waft off the RFP site as 'fugitive emissions', will kill and maim countless others, indiscriminately, for the next 240,000 years, all the way to St. Louis! Thank many greedy, stupid, ignorant unregulated real estate developers that have already put permanent infrastructure and homes far too close to this site in violation of the 10 mile edict of the Executive Dir. of the Colorado Department of Health, Dr. Roy A. Cleere.

The Stone v. Rockwell trial generated a great deal less interest in the media than the trial of McDonald's in London, England, for its many restaurant crimes. As in that trial, the defendant(s) huge advertising budgets' seemed to preclude its reporting in the 'main stream' media. In Denver, it was worse, as even the weekly undergrounds didn't want to jeopardize their advertising revenue either. Judge Matsch's courtroom, during the Stone trial, never had a dozen concerned citizens and media until it was interrupted by the mcveigh trial. Many media giants from the East coast, like the NYT, Washington Post, all local rags, and many, many others packed the courtroom until the end of that trial. As soon as the Stone trial resumed, all of these 'reporters' bolted out the door like rats in a burning garbage dump!

Sadly, the totally stupid jury agreed with him on everything but the amount of monetary damages. After hearing months of massive, permanent, crooked, incompetent contract performance on the part of the defendants, Rockwell/Boeing and DOW Chemical Co., they decided to award him about $4.5 Million of $192 Million in assessed damages and let American taxpayers pay the defendants' damages! Very sadly, to August 2006, Mr. Stone has never received a penny in judgments due, and is in an assisted care home with his wife of many, many years with early stages of dementia.

The second case, pp 10226 thru 10661, THE UNITED STATES DISTRICT COURT THE DISTRICT OF COLORADO, Civil Action No. 90-CV-00181(JLK), filed 16 years prior to the start of the trial, concerned about 14,000 local residents were awarded $352 Million for lost property values! Never mind cancers, sick children, child amputees, and fatal cancers. Again, the overwhelming evidence in the closing arguments, presented here, makes it clear the degree of wholesale, crooked, deceitful, fraudulent operations by well paid 'sole supplier' government contractors.

Neither of these revealing cases' closing arguments can be found elsewhere on the InterNet, nor were they disseminated in or by the press. Hopefully, other folks fighting these caliber defense contractors elsewhere will implement this information and start getting their nuclear weapons plant removed and cleaned up from the face of the Earth. Peace Farm, are you listening and taking appropriate ACTION yet? Think of the training you received in 1989.

The list of sleazy, bottom feeding, cheating contractors, collecting (robbing) the taxpayers of $ Millions in fraud, waste and junk science is unimaginable and continued until the site was cleared of all facilities December 2005, and vacated! Some say it hasn't ended yet as the 'cleaned up site' still contains tons of abandon, plutonium contaminated hardware below the surface. One of the original eight Boulder, Colorado Scientists, who started bringing the problems to light in the early 1970s, was Prof. Harvey Nichols, Ph.D. Biologist, a proper, former Englishman, frequently referred to RFP information officers as being: 'Very economical with the truth'!

The first forth of this document wraps the text from the original legal form. Numbers in this text from 1 to 25, are the line numbers corresponding to the original legal form. This will save paper for those wishing to print it out. Four digit numbers are running page numbers. The latter 3/4 of the document appears in the normal court form.

Following are the verbatim closing arguments transcripts provided by Mr. Hartley Alley, Esq. Paula Elofson-Gardine and her sister Susan Elofson-Hurst, two indefatigable RFP stake holders (victims), and founding members of the Rocky Flats Cleanup Commission, who wouldn't shut up, roll over dead, nor go away. They were present during most of the trial and long before lead the way in many actions for many years without recognition nor compensation. This is a lesson for all the apathetic who think people have no power. It was solely we folks, maybe a couple dozen, who caused this admission by a defense witness, Sam Cassiday, Lt. Governor of Colorado, etc.: From November 8, 2005.

Very sadly Ms. Susan Elofson-Hurst lost her first baby to rare birth defects associated at the time with industrial pollution. Much later, people started 'connecting the dots' as to Rocky Flats being the source(s) to neighbors' elevated levels of birth defects being linked with high probability to plutonium exposures.

"Smart People Who Are Apathetic, Gullible, or Lack Courage May As Well Be DUMB"! James S. Stone, P.E., after many years fighting the bastards alone.

Running Page Number 5058

FOR THE DISTRICT OF COLORADO

3 4 UNITED STATES OF AMERICA and

UNITED STATES OF AMERICA, ex rel.

5 JAMES S. STONE, )

)

6 Plaintiffs, )

)

7 vs. ) 89 M 1154

)

8 ROCKWELL INTERNATIONAL CORPORATION, et al., )

)

9 Defendants. ) 10 _____________________________________________________________ 11 TRIAL TO JURY - DAY 24

TRANSCRIPT OF PROCEEDINGS

12 _____________________________________________________________ 13 Proceedings held before the HONORABLE RICHARD P. 14 MATSCH, U.S. District Judge for the District of Colorado, 15 beginning at 9:00 a.m. on the 29th day of March, 1999, in 16 Courtroom C-204, United States Courthouse, Denver, Colorado. 17 APPEARANCES 18 For the Plaintiffs: Maria T. Vullo, Esq.

Jeannie S. Kang, Esq.

19 Matthew Chevez, Esq.

Robert E. Montgomery, Jr., Esq.

20 Paul, Weiss, Rifkind, Wharton

& Garrison

21 1285 Avenue of the Americas

Suite 2607

22 New York, New York 10019 23 24

Proceedings recorded by electronic sound recording;

25 transcript produced by transcription service.

5059 1 APPEARANCES: (Continued) 2 Hartley D. Alley, Esq.

4251 Kipling Street, #130

3 Wheat Ridge, Colorado 80033 4 For Defendant Rockwell: Christopher J. Koenigs, Esq.

Michael A. Williams, Esq.

5 Brian Eberle, Esq.

Amy Benson, Esq.

6 Michael Brian Carroll, Esq.

Karen DuWaldt, Esq.

7 Michael T. Gilbert, Esq.

Williams, Youle & Koenigs

8 950 17th Street

Suite 2450

9 Denver, Colorado 80202 10 For USA, ex rel: John A. Kolar, Esq.

Joel D. Hesch, Esq.

11 Donald Williamson, Esq.

U.S. Department of Justice

12 Civil Division

P.O. Box 261

13 Ben Franklin Station

Washington, D.C. 20044

14

Page 5060

1 P R O C E E D I N G S 2 (At 9:00 a.m. on March 23, 1999, in the United States 3 District Court at Denver, Colorado, before the HONORABLE 4 RICHARD P. MATSCH, U.S. District Judge, with counsel for the 5 parties present, the following proceedings were had:) 6 THE COURT: Be seated, please. Good morning. Are we 7 ready to go? 8 MS. VULLO: Yes, Your Honor. 9 THE COURT: I think for scheduling here 90 minutes is 10 about as long as we could expect the jury to be attentive to 11 argument, so if you're going to go beyond that, find a 12 breaking point where we can do that so we can take a recess 13 about then, and we'll see where we are for the noon recess. 14 I'm going to provide the jury with a lunch, so--and I think 15 we'll keep the luncheon recess to an hour so that we can 16 proceed and get it all in today. Okay? 17 MR. KOLAR: That's fine. 18 MS. VULLO: That's fine. 19 THE COURT: Okay. Bring them in. Are you going to 20 divide argument on the defense side? 21 MR. WILLIAMS: No, Your Honor. 22 THE COURT: Okay. It will be you? 23 MR. WILLIAMS: Yes. 24 THE COURT: All right. 25 (9:02 a.m. - Jury present.)

5061

1 THE COURT: Members of the jury, good morning. 2 THE JURY: Good morning. 3 THE COURT: We're ready now to present this case to you, 4 and just a reminder about the procedure. Each side of course 5 has the opportunity to address you now on closing argument. 6 And you'll hear first from the plaintiffs. Plaintiffs are 7 going to divide their argument. Ms. Vullo and Mr. Kolar will 8 both address you. And then you'll hear from Mr. Williams for 9 the defendant, then the plaintiffs have an opportunity for 10 what's called a rebuttal argument. And then I will instruct 11 you on the law. 12 Now we've had a pretty long trial here, a lot of 13 evidence has been presented, so we're going to give the 14 attorneys a full opportunity to argue their respective 15 positions in the case, and it may take us a good part of the 16 day to accomplish the arguments and the instructions. We'll 17 take breaks, then, accordingly, as it progresses. And you've 18 already been advised, I think, that we'll bring lunch to you 19 today and we'll be keeping the noon recess to an hour so that 20 we can complete this within the day. 21 And then the case will be given to you to decide, 22 and of course I just want to repeat again that you will be on 23 your regular work day schedule. That is to say, you don't 24 need to worry about being here after 5:00 because we'll give 25 you all the time that you need for your consideration of the

5062

1 issues and deliberation in the case, but we won't be 2 deliberating past 5:00 on any day if there are other days 3 involved. 4 So that's our schedule. Please sit back, listen 5 carefully to what the lawyers have to say. This is an 6 important part of the trial. So we'll hear first from Ms. 7 Vullo for the plaintiffs. 8 MS. VULLO: Thank you, Your Honor. 9 Good morning. Members of the jury, you have now 10 heard all of the evidence. By my count, you have heard from 11 55 witnesses and you have seen parts of about 500 documents, 12 and it is now time for the plaintiffs to tell you what we 13 believe we have proven to you from the evidence actually 14 presented to you during the course of this trial and why that 15 evidence compels a verdict for the plaintiffs in the amount 16 of some $164 million. 17 Now before I detail the evidence for you, I want to 18 thank you on behalf of my client, James Stone, for your 19 incredible attention throughout this trial and for the 20 attention that I know you will give during your 21 deliberations. As you know, my client initially filed this 22 case, and the Government, represented by the Department of 23 Justice, joined in the lawsuit and we have presented this 24 case to you jointly as a team effort. And as we did 25 throughout the trial, we will present our closing argument to

5063

1 you as a team effort. After I am through, Mr. Jack Kolar, 2 the lead lawyer here from the Department of Justice, will 3 speak to you. But don't worry, we won't be repetitive. I 4 will discuss with you the first of the two claims that you 5 will have to consider in this case, and that is the claim 6 under the Federal False Claims Act. And when I am done, Mr. 7 Kolar will discuss with you the Government's second claim, 8 which is a breach of contract claim. 9 Now turning to the False Claims Act, as the judge 10 will later instruct you, you, the jury, should find the 11 defendant, Rockwell, liable under the False Claims Act if you 12 determine by a preponderance of the evidence that Rockwell, 13 one, made or used a false record or statement; two, to get a 14 false or fraudulent claim paid or approved under its 15 government contract; and three, with knowledge that the 16 statement or record was false. So in other words, the 17 question for you is, did Rockwell knowingly make false 18 statements in order to get paid money under its government 19 contract. I submit to you, ladies and gentlemen, that the 20 evidence clearly demonstrated that Rockwell did knowingly 21 make false statements under its contract with respect to its 22 pondcrete, saltcrete and spray irrigation operations. 23 Certainly it is more likely so than not so that Rockwell made 24 false statements, which is what "preponderance of the 25 evidence" means.

5064

1 Now, as for pondcrete and saltcrete, as you know, 2 the key date is May 23, 1988, because that is when there was 3 a spill on the 904 Pad that was reported to the Department of 4 Energy. So the question for you to decide on this claim is 5 whether prior to that date Rockwell had knowledge of problems 6 with these pondcrete and saltcrete operations that made its 7 statements to DOE in regard to those operations false. 8 And as for spray irrigation, the key date is March 9 2, 1987, about a year earlier, because that is the date on 10 which Rockwell informed the Department of Energy of a runoff 11 incident into Woman Creek. So the question on that claim is 12 whether Rockwell knew of other runoff incidents before that, 13 in January 1987, which it did not report to DOE in connection 14 with that award fee, period. 15 Now the judge will also instruct you that in 16 determining whether statements made by Rockwell are false, 17 you need not find an explicit falsehood, although we believe 18 there were many. Implicit misrepresentations, misleading 19 statements, statements that create an inaccurate impression 20 on the part of a Government official may be deemed by you to 21 be false statements under the False Claims Act. Likewise, in 22 a mission of fact that if known might have reduced the amount 23 of money the Government was willing to pay to Rockwell could 24 make a statement that was made false. 25 Now, it is our contention that Rockwell made

5065

1 numerous false statements affirmatively about its pondcrete 2 operations while it knew that those operations were resulting 3 in leaking, leaching and spills. But certainly, ladies and 4 gentlemen, Rockwell gave a misleading impression to the 5 Department of Energy about those operations when it failed to 6 alert the DOE about the problems it was having on the 750 and 7 904 Pads while it was saying that pondcrete was a concrete 8 stable matrix that was not releasing constituents into the 9 environment. 10 Ladies and gentlemen, May 23, 1988, was not the 11 first time that Rockwell knew about spills of pondcrete or 12 about leaking pondcrete on the pads. But the evidence is 13 unrefuted that that was the first time the Government knew 14 about that. 15 Now the judge will also instruct you that Rockwell, 16 since it is a corporation, can only act through its agents or 17 employees, and therefore its employees may bind the 18 corporation by their acts and declarations when made in the 19 course of performing their duties as employees. And also, 20 this knowledge by Rockwell through its employees need not be 21 actual knowledge, it can be deliberate ignorance, it can be 22 reckless disregard for the truth. So if Rockwell made a 23 false statement to the Department of Energy with an absence 24 of concern for its truth or falsity, then that is reckless 25 disregard and you must find it liable under the False Claims

5066

1 Act. 2 Now you've heard a lot of evidence in this case--I 3 think there were 22 trial days--about what was known and 4 when. In the limited time I have, I'm going to try to 5 outline that evidence for you and I'm going to do it in 6 chronological order. 7 The false statements essentially begin in January 8 of 1987. And with that, I'm going to start with spray 9 irrigation. Now there are four important facts that are not 10 in dispute as to this claim. First, there is no dispute that 11 on March 2, 1987, spray irrigation resulted in runoff of this 12 sewage treatment plant effluent directly into Woman Creek due 13 to the amount of the effluent sprayed and the snow melt 14 conditions on that day. Second, there is no dispute that 15 spray irrigation runoff into Woman Creek was not to happen at 16 Rocky Flats, it was a violation of the permit, and those 17 types of violations must be reported to the Department of 18 Energy. Third, there is no dispute that prior to this March 19 of '87 incident, in fact two years prior to that, in 1985, a 20 Rockwell employee filled out an engineering job order to 21 build a trench to prevent Woman Creek runoff, which it never 22 built. That fact was admitted in those Request for 23 Admissions that I read to you earlier in the trial. And 24 fourth, there is no dispute that the March 2, 1987, incident 25 had a negative effect on Rockwell's award fee for that

5067

1 period, which was the October 1, '86, through March 30, 1987, 2 award fee period, and that's the first award fee period that 3 you will need to consider in this case. 4 Now you might recall Gary Potter's testimony on 5 this point. He testified that the Department of Energy's 6 award fee evaluation for that period was accurate in its 7 description of what happened with respect to the Woman Creek 8 runoff incident, and that's Exhibit 398. And in this award 9 fee evaluation, DOE gave Rockwell a notable deficiency, and 10 it described the situation as follows: "Another example 11 involves the east spray field where the DOE identified a 12 NPDES permit violation due to runoff flowing directly into 13 Woman Creek. Rockwell middle management was informed of the 14 situation, but upper management contact was required to 15 initiate action. An inspection failed to identify the 16 problem, but the violation was later confirmed with the aid 17 of DOE personnel and corrective action was initiated. 18 Rockwell did not have an adequate system of monitoring in 19 place and failed to act properly when the issue was brought 20 to their attention." 21 Now that was in March of '87. And you heard Mr. 22 Romatowski's testimony, he was a DOE contracting officer. 23 You heard his testimony as to why this bothered him so much. 24 It bothered him because Rockwell did not bring the matter to 25 DOE's attention promptly. And I submit to you, ladies and

5068

1 gentlemen, that that type of activity is what plagued 2 Rockwell's operations of Rocky Flats, including with respect 3 to its pondcrete operations. Rockwell did not fully and 4 promptly bring information to the Department of Energy's 5 attention. 6 Now, was March 2, 1987, the first Woman Creek 7 runoff incident as Rockwell told DOE? Did Rockwell know of 8 others or was it deliberately ignorant or did it act in 9 reckless disregard for the truth about prior runoff 10 incidents? We submit to you that the answer to that question 11 is yes, at least for the month of January of 1987. 12 I'm sure you recall Mr. Robert Ringer, who 13 testified about his turning on of the spray irrigation pumps, 14 and he even showed you his logbook, which stated the volume 15 in gallons of spray irrigation for the months of January 16 through May of 1987. The logbook indicated the times of day 17 when the spray irrigation was done. And you also heard some 18 testimony about the weather conditions in January and 19 February of 1987. And Mr. Henry testified that the weather 20 conditions that he recorded in his logbook for those months 21 were the same snow melt conditions that occurred on March 2, 22 1987, which caused the runoff on that day. 23 Now the only proof that Rockwell submitted to 24 counter this testimony and this documentary evidence is 25 testimony by John Krueger to the effect that there were tire

5069

1 tracks on March 2. But Mr. Krueger himself admitted that the 2 tire tracks were not the cause for this runoff incident. 3 Now back to Ron Henry. Mr. Henry testified that he 4 recalled witnessing Woman Creek runoff on at least one 5 occasion in 1987. His own logbook demonstrates that that one 6 occasion could not have been March 2. But when you look at 7 his logbook, Exhibit 361, page 16, and if you look at his 8 logbook for the March '87 incident, he's writing on March 3 9 or March 2 about that incident, and he notes that on the 10 morning of that day he accompanied George Setlock and Gary 11 Potter when they did not see runoff into Woman Creek. And he 12 notes in his second entry that later that day Gary Potter, 13 George Setlock and John Krueger witnessed Woman Creek runoff. 14 Mr. Henry was not there later that day when they witnessed 15 the runoff incident, and therefore the one incident that Mr. 16 Henry admitted to during trial could not have been the March 17 2 incident as the defense claims. 18 Now there's additional evidence of prior Woman 19 Creek runoff from Mr. Henry's logbook. Mr. Henry testified 20 about the two pages from his logbook, and you might recall we 21 pieced them side by side and he read the entries of icy 22 fields on January 28 and runoff on February 2 and February 23 18, 1987. And those are pages 126 and 127 of Exhibit 361. 24 And Mr. Henry in his logbook noted that he recommended on 25 February 2 the building of a culvert, and he noted that that

5070

1 same recommendation was made to Rockwell management two years 2 earlier but was not accepted. Mr. Henry also noted in the 3 next entry that he observed runoff under snow melt 4 conditions, the same conditions that caused the March 2 5 incident. 6 Now Rockwell has argued that there could not have 7 been earlier runoff into Woman Creek because Rockwell now 8 claims that the movement of the spray sprinklers on February 9 23 is what caused the March 2 incident. But ladies and 10 gentlemen, none of this was said back in 1987. There is 11 evidence in Mr. Henry's own logbook as well as from his 12 testimony and the testimony of Mr. Ringer that Woman Creek 13 runoff occurred before February 23, so it cannot be the case 14 that the movement of the spray sprinklers caused the March 2 15 incident. 16 Now you also heard John Krueger's testimony that he 17 felt responsible for the March 2 incident, but you also heard 18 his testimony on cross-examination that he never said that to 19 anyone before this trial. And none of the documents supports 20 the position that the runoff incident on March 2 had anything 21 to do with the movement of the sprinklers or tire tracks. In 22 fact, there was a notable omission in John Krueger's 23 testimony. Mr. Krueger did not say that he knew of runoff 24 into Woman Creek prior to his visit to the spray fields on 25 the afternoon of March 2. So there can be no claim of DOE

5071

1 knowledge of that fact. In fact, Mr. Krueger did not deny 2 that DOE, when it learned of the March 2 violation, asked 3 Rockwell to confirm that its monthly monitoring report for 4 the month of January 1987, which said that there were no 5 permit violations, was in fact accurate. 6 And in Exhibit 2640, Mr. Earl Whiteman, this is a 7 letter that he wrote to the Colorado Department of Health and 8 to the Environmental Protection Agency, and he told them that 9 DOE had requested Rockwell's HS and E division to conduct an 10 investigation to determine if a violation could have occurred 11 and not been reported in January. And Rockwell informed DOE 12 that it had done the requested interviews and that there were 13 no violations in January '87. That, too, is a false 14 statement. 15 Now what was the evidence that Rockwell performed 16 this so-called review and investigation requested by Mr. 17 Whiteman, which Mr. Whiteman reported to the regulators? 18 There was none. We called the person who was responsible for 19 turning on the spray irrigation pumps--that was Mr. Ringer-- 20 we called the person who was responsible for monitoring the 21 spray fields--that was Mr. Henry. Both testified that they 22 were unaware of any such investigation. And we also called 23 Gary Potter, who was the responsible ES and H official, and 24 he was the one that was present and witnessed the March 2 25 incident, and he said nothing about any investigation into

5072

1 runoff. In fact, he said he did not recall being asked to do 2 interviews or doing interviews, but he just presumed that if 3 it was asked it would have been done. And not a single 4 Rockwell witness said that these interviews were done. It 5 was false. 6 So what does this mean? It means that there is 7 unrefuted evidence that runoff into Woman Creek occurred in 8 January of 1987, or at least Rockwell acted with reckless 9 disregard for the truth of that fact, and therefore its 10 reporting for the month of January 1987, signed by Mr. 11 Potter, which stated that there were no permit violations for 12 that month, is a false statement. And that false statement 13 was compounded when Rockwell repeated it to DOE after it was 14 asked to conduct an investigation for that month and it did 15 no investigation and said there was no runoff. 16 Now Mr. Whiteman and Mr. Romatowski testified about 17 the actual effect of the March 2 incident on Rockwell's award 18 fees and that additional incidents would have further reduced 19 Rockwell's award fee for that period. They also testified 20 that Rockwell's concealment of this knowledge would have 21 resulted in a zero award fee had it been known. Therefore, 22 ladies and gentlemen, on plaintiff's spray irrigation claim, 23 we are asking you to find that Rockwell made false statements 24 in order to get paid award fees for the award fee period of 25 October 1, 1986, through March 30, 1987, and that Rockwell is

5073

1 not entitled, as a result, to any award fee for that period. 2 And that was about a $4 million award fee that it received. 3 You might recall also Dean Olson's testimony. He 4 was the gentleman who came in here and talked about those 5 Voucher Accounting for Net Expenditures Accrued, which were 6 the yearly vouchers that Rockwell gave to the Government 7 reporting on the amounts of monies that Rockwell had taken 8 out of the Government's bank account, including the award 9 fees. So based upon Rockwell's false statements regarding 10 spray irrigation for this period, the yearly VANEA, which is 11 the acronym for that document, for Fiscal Year 1987 was a 12 false claim because Rockwell made false statements in order 13 to get monies paid under its Government contract. 14 Now that's the essence of the spray irrigation 15 claim, all limited to this period of January, February and 16 March of 1987, and the damages that we're asking you to award 17 to the plaintiffs are limited to that award fee period as 18 well. And again, that's about a $4 million amount. 19 With that I'm going to turn back to pondcrete. And 20 we're about in the same time frame. In fact, the starting 21 point for what Rockwell knew about pondcrete and when it knew 22 it is its own admissions in the plea agreement that it signed 23 in March of 1992. That's Exhibit 1. 24 Now as you heard throughout this trial, Rockwell 25 pleaded guilty to ten crimes relating to its operation of

5074

1 Rocky Flats, and several of those crimes related to its 2 pondcrete and saltcrete operations. In fact, the first count 3 relates to the storage of pondcrete and saltcrete on the 750 4 and 904 Pads, and as part of this Rockwell admitted some very 5 critical facts that demonstrate its fraud. Rockwell 6 admitted, Paragraph--it's on pages 9 through 10, Paragraphs 7 12 and 14--Rockwell admitted that beginning on June 15, 1987, 8 almost a year before the May 23 reported incident, that it 9 knowingly stored approximately 12,000 pondcrete and saltcrete 10 blocks on the 750 Pad. Rockwell admitted further that during 11 or about the same period Rockwell knew that a substantial 12 number of pondcrete and saltcrete blocks were not in fact 13 solid. Pondcrete was often a sludge-like or semi-liquid 14 material. Saltcrete was prone to expansion and 15 crystallization. 16 Now Rockwell might argue that the during or about 17 the same time period" doesn't refer to June '87 but only 18 refers to the later dates. You read the document and you 19 make that interpretation. 20 Now going on to the next page, Paragraph 17 of its 21 guilty plea--and again, this was guilt beyond a reasonable 22 doubt that Rockwell admitted to. Rockwell admitted here that 23 it was aware that pondcrete and saltcrete constituents were 24 leaching and being released from the pondcrete and saltcrete 25 containers onto the 750 and 904 pads and failed to remedy

5075

1 this condition. 2 And in the next paragraph, Paragraph 18, Rockwell 3 admitted that it was also aware that pondcrete and saltcrete 4 constituents were running off the 750 and 904 Pads and failed 5 to remedy this condition as well. 6 So, ladies and gentlemen, as early as June 1987, 7 according to its own plea agreement, Rockwell knew that 8 pondcrete and saltcrete stored on these outside pads were not 9 in fact solid or sludge-like or semi-liquid or leaching and 10 being released onto the pads or running off the pads and that 11 saltcrete in addition was prone to expansion and 12 crystallization. Rockwell admitted these facts beyond a 13 reasonable doubt and you should accept these admissions as 14 true. 15 Now we didn't stop with the evidence of its plea 16 agreement in this case. We demonstrated to you a number of 17 additional specific facts about Rockwell's knowledge that 18 were fully consistent with its plea agreement admissions. 19 And with that, I'm going to go back a little bit to 20 February of 1987. You might recall those inspection logs, 21 Exhibit 171. And in February of 1987, it was the first 22 inspection log where Leif Swenson--you remember, he was one 23 of the pondcrete operators--he noted in his log evidence of 24 leaking from the containers. And in this note he stated that 25 a leaking box was moved to the process area for repackaging.

5076

1 In other words, his note says there was a leaking box 2 discovered on the pad and then removed and brought back for 3 repackaging. 4 Now you might also recall one of the latter 5 witnesses in this trial, Mr. Glen Sjoblom, who was one of the 6 expert witnesses retained by Rockwell who testified before 7 you. And you might recall Mr. Sjoblom's testimony when I 8 asked him some questions that a prudent contractor who notes 9 a leaking container looks inside the box to see what is 10 causing the leaking. We submit to you, ladies and gentlemen, 11 that that is exactly what Rockwell did, and as early as 12 February of '87 it knew that the blocks inside were not in 13 fact solid. 14 And that continues into March of 1987. And going 15 back to Mr. Henry, who was not only monitoring the spray 16 irrigation fields, he was monitoring the runoff off of the 17 pads. And back to his logbook, Exhibit 361, page 65, Mr. 18 Henry noted leaching from the pondcrete on March 17, 1987. 19 And in this note he says that "an analysis of the water by 20 the 750 Pad showed high nitrates, which indicated leaching 21 from the pondcrete." Those are the words that he used. And 22 Mr. Henry and Mr. Blaha explained to you that leaching occurs 23 when the waste form comes into contact with water. 24 Now, with this knowledge, what did Rockwell say 25 about the pondcrete operations in March of 1987? What did it

5077

1 tell the Department of Energy? In its closure plan for the 2 solar operation--solar evaporation ponds, which was dated 3 March 1 of '87, Exhibit 1423, page 46, and it's highlighted 4 here, "Rockwell told DOE that pondcreting was selected since 5 the basic technology had been used and proven to be effective 6 since the plant has experience with the process and since 7 pondcreting meets the requirements of the Nevada Test Site 8 for the solidification of radioactive waste." So Rockwell 9 was here telling the Department of Energy that it had 10 experience with this process, that it was proven to be 11 effective, and that it meets the requirements of the Nevada 12 Test Site. 13 As Chuck Wickland told you--he was one of our 14 earlier witnesses, I think our second witness, and he was the 15 manager of waste operations before he was replaced with Mr. 16 Naimon by Mr. Weston--and Mr. Wickland told you that insolid 17 pondcrete and leaching pondcrete does not meet the Nevada 18 Test Site requirements. In fact, Mr. Wickland explained to 19 you the correspondence that he had several years earlier with 20 the Department of Energy and how he described pondcrete to 21 the Department of Energy-Nevada Test Site at that time. 22 That's Exhibit 190, and it's his May 14, 1985, letter, and 23 here is how Mr. Wickland described pondcrete, as "a cemented 24 monolithic block that was a nearly incompressible waste 25 form." And Mr. Whiteman also testified that he had a

5078

1 conversation with Mr. Dom Sanchini, the president for 2 Rockwell, when Mr. Sanchini said that the pondcrete was like 3 the cement in his driveway. And Mr. Wickland told you that 4 he was not aware of any different description for pondcrete 5 that was told by Rockwell to the Department of Energy through 6 December of 1988 when he left the plant. So that is what 7 Rockwell told DOE about its pondcrete waste form in 1985 and 8 then again in 1987, and it never took back that 9 representation. 10 But by March of '87, as I've shown you, Mr. Henry's 11 logbook demonstrates that Rockwell had knowledge of high 12 nitrates leaching on the pad. The only reason to have high 13 nitrates is the nitrates are coming from the pondcrete 14 itself, because it's spilling, because it's not solid. 15 Going forward a couple of months to May of 1987, 16 which was a very significant month at Rockwell about its 17 pondcrete operations, and with that I move to Norman Fryback. 18 You might recall Mr. Fryback, he was the foreman of the 19 pondcrete operations in 1985, and you might recall that he 20 talked about the testing that he did of the pondcrete with a 21 hammer and a screwdriver, and I think he even used his arm to 22 demonstrate to you how he did the testing for the pondcrete 23 when he was foreman before Ron Teel replaced him. And 24 Fryback described pondcrete to you as "a concrete matrix 25 which forms a concrete monolith." He testified about his

5079

1 testing of it and he said that if the screwdriver penetrated, 2 he would look at it to see if there was liquid in it, and if 3 it did that, it was not acceptable. 4 Fryback also testified about problems with a 5 clogged star valve, which would cause reduction in the amount 6 of cement. He testified that he told Ed Naimon, the manager 7 of waste operations at the time because he was replacing Mr. 8 Wickland, and Fryback also told you that he told Mr. Weston 9 of these problems and he expected them to take care of it 10 after he was no longer the foreman. 11 He also explained to you that something called 12 "capping," where you put cement on the top and the pondcrete 13 is hard on top but not hard in the middle, is not something 14 that was allowed under him because it would give a false 15 impression that the block was solid when it was not. 16 Mr. Fryback also testified that a few weeks after 17 Teel--and you remember Ron Teel, he was our last witness--a 18 few weeks after Ron Teel replaced him as foreman--and that 19 was in late 1986--Teel told Fryback that Teel was reducing 20 the amount of cement to some 150 to 200 pounds per block, 21 from 600 to some 150 to 200 pounds per block. Fryback also 22 testified that before he was replaced by Teel Rockwell 23 management was pressuring him to make more pondcrete, and 24 Fryback told Hewitt and Naimon that the pressure would result 25 in boxes that were not the right quality of monoliths that

5080

1 Fryback was shipping to Nevada at the time. 2 Now, although Fryback was no longer a foreman in 3 '87, he continued to keep a notebook and he even did some 4 inspections of the 750 Pad. He said that one-third of the 5 boxes he inspected were bulging, and it was his opinion that 6 the bulging was because they were not completely solidified. 7 Now, one of Mr. Fryback's inspections is 8 particularly enlightening. It's Exhibit 5. This is Mr. 9 Fryback's May 1, 1987, inspection, where he says that "many 10 boxes in the stack of pondcrete are badly distorted due to 11 rain, weather damage, and they appear to have berms, plastic, 12 not fully set when stacked," and then he gives an example. 13 So Fryback is noting in his own book in May of 1987 that at 14 least one box on the pad was not fully set when stacked. Not 15 fully set means not solid the way it was supposed to be. 16 Going on to his next critical entry for this date, 17 Fryback writes about Stack 56. There is a container that has 18 a hole in it clear through the plastic, and then it says, 19 "About four inches or nine inches," I'm not sure, "into the 20 cement some solidified"--he says that should have been 21 "solidified" instead of "solified"--"material has spilled out 22 of the container onto the pads." That's spill of pondcrete 23 onto the pads in May of 1987, consistent with the June date 24 in the plea agreement. 25 Now the next entry for this same date, you see in

5081

1 this entry--that's not the right one, that's not the right 2 one. 3 (Pause.) 4 MS. VULLO: This is an entry that Mr. Fryback discussed 5 with you and then we came back to it during Ron Teel's 6 testimony, the last witness. And in this entry Mr. Fryback 7 says, "Building 750 Pad area," and he goes on and talks about 8 some missing labels, and then he says, "Stack No. 15, south 9 side, no has labels," and then he underlines "Southeast 10 corner has leaker, top two." And Fryback told you that in 11 the original log, which he showed you, he underlined that in 12 red, and that was the reference to "leakers," and he told you 13 that he wrote a note about this to Hewitt and Teel. And he 14 told you that that note has since disappeared. But it really 15 doesn't matter whether the note was here or not because 16 Fryback told you that he wrote it and his diary indicates a 17 May 1, 1987, inspection with "Stack 15, southeast corner, 18 leaker, top two," and that he told Ron Teel, who was the 19 foreman at the time, about that. 20 Now you heard Ron Teel's testimony about this 21 reference to the southeast corner of Stack 15, and there was 22 a one-page exhibit, 376A, that I'd like you to look at in 23 full. Now as Mr. Teel testified, and there's also some 24 testimony from Howard Long and Jolaine Fenner, the pondcrete 25 operators kept a map of the boxes that were stored on the

5082

1 pad. Each box had a number assigned to it, as did each 2 stack, and the boxes were stacked three high, as is shown 3 here. And this document on the top right is for Stack 15, 4 same stack in Fryback's notebook. And Teel testified that 5 the handwriting on the bottom right corner--you see the "W" 6 and the "E", "southeast corner"--Teel's handwriting, which 7 says, "Repack in coffins, end of aisle." Those are the same 8 boxes that Fryback noted had "leakers, top two." And Teel 9 testified and other witnesses testified that "coffins" were 10 either metal or wooden crates into which sewer sludge was 11 placed. "Coffins" were not the pondcrete containers, the 12 tri-wall containers. 13 Now Fryback testified that these sewer sludge 14 coffins were stored in wooden boxes on the 750 Pad. And you 15 might remember the photograph of the 750 Pad showing not only 16 the pondcrete stored there but also some sewer sludge stored 17 at the end of the aisle in these wooden coffins. That's P17. 18 And this photograph, it's been stipulated, was taken on April 19 24, 1987, just a week before Fryback's note and just a week 20 before Teel repacked them. And you can see the pondcrete in 21 the tri-walls and you can see some coffins at the end of the 22 aisle, those wooden crates. 23 Now, why was Teel repackaging these leaking 24 pondcrete boxes into containers used for sewer sludge? I 25 submit to you that the reason is that the Colorado Department

5083

1 of Health was about to come for an inspection of the 2 pondcrete, Teel knew it, and he knew that if he put it in the 3 sewer sludge boxes they wouldn't see that there were leaking 4 pondcrete boxes on that pad. 5 And in fact Exhibit 311 is an April 23, 1987, 6 letter from Mr. Wickland to, among others, Ron Teel. Ron 7 Teel's name is in the distribution, as he told you. On April 8 23 they are informed that the Colorado Department of Health 9 is about to come for an inspection. That's April 23, the 10 photograph is April 24, the Fryback entry is May 1, and the 11 Teel note about repacking those same boxes shows they were 12 put into sewer sludge so the regulators couldn't find it. 13 Now back to Fryback's other notations in his 14 notebook. It's not just May 1 that he noted problems. And 15 the Colorado Department of Health inspectors were coming 16 later on in that month. He also noted on May 14, 1987, as we 17 read before, that "there are some boxes that were not fully 18 set and some solidified material having spilled out on the 19 pads." He made some references in there about the rain and 20 the weather, and you've heard a lot about the weather during 21 this trial. And Rockwell has tried to convince you and the 22 witnesses that the weather damage caused deterioration of the 23 waste form itself. But if you look at Fryback's May 14 note, 24 which is page 6 of Exhibit 5, when he talks about weather, he 25 says, "Many boxes in the stack of pondcrete are badly

5084

1 distorted." The boxes are distorted due to the weather 2 damage, "and they appear to have been plastic, not fully set 3 when stacked when put on the pads before weather hit them." 4 Fryback knew the difference between weather affecting the 5 boxes and the waste form itself that was not affected by the 6 weather but was insolid when it was brought out there on the 7 pads. 8 Now Fryback not only put this in his notebook, he 9 also did those weekly inspections, the RCRA inspections, on 10 the pads. The ones that I told you Leif Swenson did, Fryback 11 did some as well in May of '87, and for the same date, May 1 12 of 1987, which is Exhibit 171, he checked off the Box 6 for 13 leaking from the container. And Hewitt, who was Fryback's 14 boss--and Fryback told you he shared an office with Hewitt-- 15 was also on this inspection for May 1, '87. Hewitt also got 16 that memo that the Colorado Department of Health was coming 17 later in the month. 18 And Hewitt continued on the next week inspection, 19 May 7 of 1987, and he noted leaking in that inspection as 20 well. It's 171. We don't need the exhibit. He noted on May 21 7, '87, a note to repack the box. 22 And then on May 14, 1987, Fryback again noted 23 leaking in his inspection sheet, same date as the references 24 in his notebook to spills on the pads and boxes not being 25 fully set. Fryback told you that he told Teel and Hewitt

5085

1 about this. 2 And then the inspection log for May 21, 1987, the 3 same week that the CDH inspectors were there, there was no 4 indication of leaking. What happened to the leaking boxes of 5 the prior three weeks that were not shown to the CDH 6 inspectors? And you'll recall Mike Sattler came here from 7 the Colorado Department of Health. He's not connected to the 8 Department of Energy. He came here and said he didn't see 9 this when he came for an inspection and Rockwell didn't tell 10 him about any problems. He thought it was a concrete waste 11 form. And Teel, too, admitted he didn't say anything to the 12 Colorado Department of Health when they came for that 13 inspection. And Teel also said that he couldn't deny that he 14 moved those boxes before the inspection. 15 Now, is it just a coincidence that this is the same 16 month, May of '87, when you see leaking in the inspection 17 logs, leaking in Fryback's notebook? Is it a coincidence 18 that that's the same month when the Colorado Department of 19 Health was coming to inspect? Was it a surprise to you that 20 Mike Sattler testified he didn't know of any problems? And 21 is it also a coincidence that in December of 1987, when DOE- 22 Nevada came and Teel took over the inspections for that 23 month--remember Teel told you, "Well, maybe Swenson was on 24 vacation," until he saw that it was a full month that he did 25 the inspections? Swenson wasn't on vacation that month.

5086

1 Teel took it over and he didn't note any leaking on the 2 inspection sheets and he didn't tell the Nevada people that 3 there were problems on the pads, about which he knew. And 4 Mr. Brich--the defense called Mr. Brich from Nevada and he 5 said he wasn't informed of it, and Teel confirmed that fact 6 when I asked him that question. 7 Now, Fryback was not the only one who had an entry 8 in his notebook for May of 1987. Teel was not the only one 9 who noted that leaking boxes should be repacked or 10 overpacked. You might recall Ed Naimon. Ed Naimon was the 11 manager of waste operations, he was Bill Weston's buddy, he 12 replaced Chuck Wickland, and he came in here and he testified 13 about a different entry in his notebook for May 11, 1987. 14 Same month, before CDH comes to visit. Exhibit 341. And in 15 this note, "5-11-87, meeting with D'Ann"--that's Bretzke-- 16 "and Beerly and Garvin Hewitt"--and he testified three 17 Rockwell employees. They have a meeting. It says, "30 boxes 18 need overpacking. Overpack, use plywood for now," and then 19 it says something about "proposed for tri-wall overpack." So 20 Naimon is saying he has 30 boxes need overpacking and he 21 mentions plywood and he mentions tri-wall. 22 And you heard what "overpacking" means, you heard 23 Mr. Sjoblom say "overpacking" means you take a waste form in 24 one container, you put it in another container, and two 25 things are required. The container into which you put it has

5087

1 to be at least as big as the first one and should be better 2 than the first one. So what is Naimon saying here? He's 3 taking the tri-wall pondcrete in the tri-wall and putting it 4 into the bigger and stronger plywood boxes. 5 Now, to recall what Mr. Naimon's testimony was 6 about this note. He claimed it had to do with sewer sludge. 7 He claimed that sewer sludge, which is admittedly less solid 8 than pondcrete and was in these plywood on the pads, he said 9 he was taking the sewer sludge, putting it into tri-wall to 10 put it back into plywood. It makes no sense. And he was 11 trying to give an excuse for you for what they were really 12 doing, which was taking pondcrete from the tri-walls, putting 13 it into the plywood, and he got confused. Sewer sludge was 14 the coffins on that pad. And that was the truth that he 15 didn't tell you. He was talking about the same thing in his 16 note that Teel was doing based on Fryback's note, based upon 17 Fryback's note to Hewitt and Teel about those "leakers, top 18 two" on that pad. And Hewitt is in this meeting with Naimon. 19 Now, that's not all for May of 1987. Back to Mr. 20 Henry's monitoring of the runoff, Exhibit 1163. This is an 21 analytical report for May 5, 1987, a couple of days after 22 Fryback notes these leaking boxes. And there's a pondcrete 23 analysis showing--you see gross alpha, gross beta. Those are 24 elevated levels. Those numbers 132, 148, 173, 148. Those 25 are elevated levels, and that's what Mr. Henry told you in

5088

1 his testimony. And he also told you about his other 2 monitoring. There was an April '87 handwritten note that was 3 attached to a September '87 Blaha document, which I'll get to 4 later. So Mr. Henry notes, very consistent with Fryback's 5 note, there's elevated levels because there's leaking of this 6 pondcrete and it's going into the runoff on that pad. 7 Now there's another item for May of 1987, Mr. 8 Swenson's April 3, 1990, memo, where he gives the history of 9 pondcrete, Exhibit 172. This memo, Mr. Swenson refers to May 10 of 1987. It starts off by saying, "In December of 1986"--and 11 you can read the whole document, there's a chronology there. 12 Starts off with '86, where Teel takes over for Fryback, and 13 then Swenson writes, "Problems first appeared in May, when 14 operators noticed the blocks were not curing properly. Waste 15 engineering sampled effluent and reported that possible 16 causes were changing sludge density or pH. At this time, 17 operators were told to sprinkle cement on top and down the 18 sides of the boxes to attempt to solidify the existing 19 boxes." Remember the testimony, the testimony you put cement 20 on top and on the sides it appears hard here, not in the 21 middle. So in other words, what is Swenson saying in April 22 of '90? He's saying additional cement was added to bad boxes 23 and the middle would not be solid. Fryback explained that 24 was not allowed when he was foreman. 25 Now, you might recall that Swenson claimed that

5089

1 some of the dates in his memo were wrong, but even if you 2 believe that correction, he never said that the reference to 3 May '87 was wrong. He was talking about the later reference 4 to August '87, when he claimed that the rainstorm was a 5 different rainstorm--and I'll get to that later--but he never 6 said that this reference of pondcrete not curing properly was 7 wrong. 8 Now, with all this knowledge, leaking boxes, spills 9 on the pad, repacking into coffins, Swenson's note about not 10 curing properly, what does Rockwell tell the Department of 11 Energy in May of 1987 about its pondcrete operations? Ed 12 Naimon again, Ed Naimon who knows all this, in his waste 13 management report to Mr. Whiteman, Exhibit 1299, Naimon says 14 --that's May of '87, waste management, and on pondcrete he 15 says, "Production of pondcrete waste boxes continues to 16 exceed the established goals. It is expected at the initial 17 storage pad in the old Building 750 parking lot"--that's the 18 750 Pad--"will be full in September '87." He says nothing 19 here or elsewhere about the poor condition of the pondcrete 20 on the 750 Pad that he knew about in May of '87. And as he 21 admitted, saying that it exceeds the goals was a credit to 22 his organization, and in fact Rockwell benefitted from that 23 with a nice award fee for the next award fee period, which 24 was April 1, '87, through September 30, 1987, and Rockwell 25 got another $4 million for that period.

5090

1 Now, certainly, due to the knowledge that Rockwell 2 had by this time, even if you stop at May--you don't even 3 have to go through September, but there's a lot in September 4 --this award fee period, Rockwell was not entitled to a cent. 5 That's what Romatowski said, that's what Whiteman said, 6 that's what Twining said. 7 Now, there were other false statements in May of 8 '87, and the next one was a false statement by Dom Sanchini 9 himself with Weston and Naimon copied on it. That's Exhibit 10 567. 11 It's June 4, 1987. You might recall the testimony 12 about deregulation or delisting of the pondcrete, which had 13 been noted to be a mixed waste, and to try to ship it to 14 Nevada, you would try to get it delisted as a mixed waste, 15 and in order to do that, Rockwell made some 16 misrepresentations about the nature of the waste form. And 17 this is the first one that it made, and there were more 18 later. 19 And in this one, Mr. Sanchini, himself, he drafts a 20 letter, or someone drafts it for his signature. But he 21 drafts a letter for Mr. Whiteman to send to the Colorado 22 Department of Health. And in that letter, among other 23 things, he says, that the inability of the constituents to 24 migrate from the stable concrete matrix. He calls the 25 pondcrete a stable concrete matrix when it was not, and he

5091

1 said that they're unable to migrate from that matrix when 2 they were actually migrating from that, as Mr. Henry noted in 3 his runoff data. 4 So that's what Sanchini is telling Mr. Whiteman, 5 and he's telling Mr. Whiteman to tell that to the Colorado 6 Department of Health, Mr. Sattler of the Colorado Department 7 of Health. Actually, this letter was going to go to his 8 boss. And Weston and Naimon knew this. They were copied on 9 the letter, and they never corrected it. 10 Now, by this time, of course, this is June 4 of 11 '87, CDH came for the inspection, and Mike Sattler told you 12 he believed, in fact, it was a stable concrete matrix because 13 he had no knowledge of the leaching, he had no knowledge of 14 the leaking, and he certainly had no knowledge of the 15 restacking done by Teel. 16 But Rockwell had that knowledge. They had it based 17 on Fryback's notebook, based on the RCRA weekly inspections 18 for that entire month, based upon Fryback and Swenson's 19 reporting the information to Hewitt and Teel and based upon 20 Teel's own knowledge of what he was doing about this problem. 21 That is false statement by Rockwell's top management. 22 Now, Rockwell might want to say to you that this 23 deregulation statement really had only to do with the 24 hazardous nature of the constituents and not the waste form 25 itself or its solidity. But in that regard, look at a

5092

1 Rockwell internal letter on this subject back to Gary Potter, 2 April 28, 1987, right about this time, Exhibit 249. 3 And in this memo that Potter writes where he talks 4 about the deregulation petition, how does he explain 5 Rockwell's argument in the second paragraph. He says, "Our 6 argument is that the material and its contained constituents 7 do not pose a threat to the environment because of the form 8 that it's in, i.e., solidified concrete blocks." 9 The delisting was precisely because of a 10 representation that the form was a stable concrete matrix. 11 That's what Potter understood. That's what they falsely told 12 DOE and asked DOE to tell the Colorado Department of Health. 13 That's May and June of 1987; knowledge of leaking and 14 leaching, false statements to the Department of Energy. 15 Turning to July of '87, Rockwell's knowledge of 16 leaking pondcrete on the 750 Pad continues through July of 17 '87. Swenson goes back to doing his RCRA inspection. He 18 notes, and you can look at the whole Exhibit 171, he notes 19 leaking from the containers in the weeks of July 13, July 20, 20 July 27. That's evidence of leaking from the pondcrete on 21 the pad where it was being stored. 22 And on the point that this was evidence of leaking 23 from the containers, meaning leaking from the pondcrete, 24 recall when Mr. Williams showed Swenson and showed Fryback a 25 photograph that had some water stain on it. And it was a

5093

1 photograph that Rockwell provided to DOE in February of 1988. 2 And recall that Fryback said, and Swenson said the same 3 thing, "That's a damaged box. That's not leaking." A 4 damaged box is a separate items on here. Here they note 5 leaking. That's not the box. That's the container. That's 6 the pondcrete. 7 And again, according to their own expert, Mr. 8 Sjoblom, when you see this leaking, you look inside, and you 9 see what's inside. And they saw it, and it was insolid 10 pondcrete. Yet in July of '87, Rockwell still makes false 11 statements to the Department of Energy about pondcrete. 12 Next one is Exhibit C060. This is its 13 implementation plan for the month. It's signed by Weston, 14 it's signed by Campbell, it's signed by Meyers, all direct 15 reports to Mr. Sanchini. And in this document Rockwell says, 16 "To date, no confirmed leaching of hazardous constituents out 17 of the pondcrete has been identified." 18 Recall Mr. Henry's testimony. When I showed him 19 this, he said, "That's not accurate based upon what I knew at 20 the time." And then Ms. Benson tried again on cross- 21 examination, said, "Did you say that was accurate?" And he 22 said, "No, I said that was inaccurate," and admitted false 23 statement based upon what Rockwell knew at that time. 24 Turning forward to August of '87, back to Mr. 25 Swenson's memo, which discusses August, '87, Exhibit 172.

5094

1 Here, this is what he says; remember, he starts with 2 December, '86, then he talks about May, now he goes to 3 August. Later on he uses 1988. Therefore, this is all 1987 4 in his memo. And this is what he says: "In late August, a 5 severe rainstorm buffeted the tarps and soaked the bottom 6 rows of boxes stored at both pads, approximately 9,000 at 7 750, 2,200 at 904. The pondcrete in the boxes which had 8 collapsed was not hard at all, but, in fact, a gooey mess." 9 Remember that he noted in his inspections leaking in July of 10 '87. 11 Now, Swenson didn't get it all right. He was wrong 12 about the 9,000 and the 2,200 as for the division between the 13 two pads. But all you have to do is look at Naimon's waste 14 management report for September of '87, which I'll get to in 15 a few moments, and in there Naimon said, "In September of 16 '87, there were 12,000 boxes." Swenson is saying 11,200 in 17 August. That's correct for the 750 Pad, not for the two 18 pads. But that's correct. He was talking about August of 19 1987. He tried to say before you in this trial that he made 20 a mistake, that that was really not August, '87. He was 21 talking about the rainstorm some seven months later in May of 22 '88, and the reason he was saying that was because he knew 23 that that was the first time that DOE found out about a 24 spill. And he tried to suggest, I suppose, that it only 25 rains in May in Colorado, but you know better than that.

5095

1 Now, there are other reasons why Swenson's memo 2 were correct and not what he tried to take back from that 3 memo. That's how he testified before the Grand Jury. That's 4 what he told Harold Bodley, Rockwell's investigator, when he 5 interviewed him in September of 1991. And you heard from Mr. 6 Bodley's notes, and you heard from his handwritten--his 7 handwritten notes and his typed notes that Swenson told him 8 in September of 1991 the exact same thing that was written in 9 his memo. In fact, Bodley said, yes, what he told me is 10 consistent with this document. 11 He also said to Bodley that upper management knew, 12 both before and after the 904 Pad spill, both before and 13 after, that the pondcrete crew was producing bad pondcrete 14 boxes, those that failed and ones that were a gooey mess, the 15 same phrase as in his memo. 16 And again, it doesn't only rain in May in Colorado. 17 In fact, you might recall when I showed Mr. Swenson his 18 inspection sheets for July, '87, and for June, '87, he tried 19 to get around that. He said leaking by saying, well, there 20 was a rainstorm. Was it the same rainstorm as in August of 21 '87? Was it a different one. In August of '87 he knew that 22 the pondcrete was not curing, he knew it was leaking, he knew 23 it was a gooey mess. That's what he said back then. 24 And finally, if he really believed that it was 25 August of '87, why does the memo continue? I'm sorry, if he

5096

1 really believed it was May of 1988 when he was talking about 2 the rainstorm, why does the memo continue after that to 3 January, '88, and then May of '88, because he did mean August 4 of '87 because he knew of the problems, and he knew they 5 weren't reported to the Department of Energy, and he was 6 trying to take that back in this trial. 7 Now, with all of this, what did Rockwell tell the 8 Department of Energy in this month, in this very month, of 9 August of '87? The same thing that Rockwell told the 10 Department of Energy before. The first document is Exhibit 11 2365. 12 It's a letter from Campbell to Whiteman regarding 13 an environmental survey, finding too, this is August 19, 14 1987, Rockwell says, "The pondcrete and saltcrete are stored 15 in stable form as concrete blocks," and he says "They're 16 meeting all of the RCRA storage requirements." 17 And we know that's not so by the plea agreement 18 itself and by Weston's testimony that leaking and leaching 19 and insolid does not meet the requirements of RCRA. 20 Rockwell repeats this on the same date, Exhibit 14, 21 and this is George Campbell to Earl Whiteman of DOE, with 22 copies to Weston, Bader, Meyers, Potter and others, and it's 23 signed by Meyers, Campbell and Weston, all people very much 24 involved in these problems. 25 And here Rockwell says about pondcrete and other

5097

1 waste management activities, "No response action necessary. 2 Conducted in full compliance with the regulations. No 3 leaching of hazardous constituents from pondcrete has been 4 identified." Here it doesn't even say no confirmed leaching; 5 they just say no leaching at all. That's inconsistent with 6 Henry's data. That's inconsistent with the knowledge of the 7 leaking and it coming off of the pads and the spills. 8 Now, elsewhere in this document, Rockwell's counsel 9 might point out to you that there are some statements about 10 containers being susceptible to damage and/or deterioration 11 and about a potential for release of constituents into the 12 environment; a potential. But here they say as a matter of 13 fact, there was no leaching, and they say nothing about the 14 waste form problems anywhere in this document. That's August 15 of '87. 16 The next month is probably the biggest month at 17 Rockwell for knowledge of pondcrete problems. During this 18 month, Rockwell continued to learn about problems with the 19 solidity of the pondcrete and the effects of that insolidity 20 on the pad conditions. And at about this time, they're about 21 to open a new pad, the 904 Pad. 22 Production continues, and Rockwell continues to pat 23 itself on the back on how it's meeting the goals of the 24 compliance agreement, and it continues to get award fees for 25 superior performance, or supposed superior performance in

5098

1 that area. 2 But what Rockwell management did not tell DOE is 3 that in September of '87, it was learning of more spills, of 4 leaching, and about the efforts to try to fix the problem by 5 adding more cement to the boxes again so they'd be hard on 6 top, but not in the middle, and not, therefore, subject to 7 discovery. 8 And the evidence that Rockwell was discussing these 9 issues internally goes all the way up to Mr. Sanchini 10 himself. 11 Exhibit 12 starts with September 9, 1987. Wayne 12 Meyers writes this handwritten note to George Campbell, at 13 this time a direct report to Mr. Sanchini, and he references 14 Sanchini in the note. And Gary Potter also testified there's 15 a note on the left of it in Gary Potter's handwriting 16 referencing a September 14, '98, HS&E meeting. That's 17 Potter's group. 18 And you heard Ed Naimon say he knew this 19 information, Bill Weston knew it, and Dom Sanchini knew it. 20 And what's the information in here that's most critical? 21 Meyers writes, "He," referring to Dom Sanchini, "is looking 22 for ideas on alternate approaches, e.g., mix more concrete to 23 really make a solid block." 24 Now, you don't need to mix more concrete to really 25 make a solid block if it's already solid. This is a

5099

1 reference to the waste form itself that it was not solid, and 2 the very top of Rockwell management knew it, and DOE did not. 3 Now, we also called Exhibit 2400--2400A. Laura 4 Johnson, who was the person who kept Mr. Sanchini's calendar. 5 And on September 9, '87, she had a reference. At the top is 6 "RCRA." That's the RCRA meeting that DOE attends. Later on, 7 9:15, 9:30, it says, "Ferra." Then it says, "GWM." Those 8 are Meyers's initials; CPB, Bader, Naimon and Bretzke. 9 That's a separate meeting after the morning RCRA meeting when 10 they were discussing what to do about this problem, by mixing 11 more concrete to really make a solid block. 12 Now, you heard Ms. Johnson say that those lines 13 through it might have meant that this was a canceled meeting, 14 and I'm sure Rockwell is going to argue this meeting never 15 occurred. But the best evidence that the lines through it 16 does not mean a canceled meeting in the rest of Ms. Johnson's 17 calendars because there are numerous places in that calendar 18 where lines through it have no names under it. And if there 19 are no names under it, it's not a canceled meeting. 20 Look at the next page, 12:00 to 12:30, there are 21 lines through it. That's not a canceled meeting. That's 22 just lines through the calendar. And Ms. Johnson explained 23 that there were times when Mr. Sanchini wanted his timeouts, 24 meaning time alone. 25 And I submit to you, ladies and gentlemen, that

5100

1 what happened here was that he was having a timeout, and they 2 came in to talk to him, and that's why Ms. Johnson referenced 3 it there. It wasn't a canceled meeting because you don't 4 cancel meetings that are not written in the first place in 5 other parts of the calendar. 6 And look through the rest of the calendar. You'll 7 see there are places where there are lines through meetings, 8 but you won't see this in places that are just where there is 9 writing. You will see this in places where there is not 10 writing. That's a timeout, and he was interrupted by these 11 people because they had a big problem to talk to him about. 12 Now, Rockwell might argue instead that this was a 13 discussion that occurred at the RCRA meeting that morning 14 when DOE was present. And I believe Mr. Williams told you 15 several times in his opening statement that there was going 16 to be evidence, there was going to be testimony, that 17 witnesses were going to tell you that it was discussed there. 18 There's not a single witness that testified that this 19 discussion occurred in that morning meeting. 20 The only witness who talked about RCRA meetings was 21 Candy Jierree, and you recall Candy Jierree's testimony. 22 They called her. And you recall, in fact, she had some very 23 strong opinions about storing the pondcrete outdoors, but she 24 was very firm in her conviction. I showed her that note, and 25 she said she didn't know of that. She didn't know that there

5101

1 were problems with the waste form, and she testified 2 emphatically to that effect, and that's because she didn't 3 know about solidity problems until May 23, 1988. 4 And you recall what happened on or about that day 5 when she found out about the spill, when she went to Ed 6 Naimon and said, "You have to do a UOR." And he fought with 7 her on that. And two hours later Bill Weston shows up in her 8 office, and she says, "No, you have to do a UOR," and he 9 tries to convince her otherwise. 10 Ms. Jierree didn't hear this at any RCRA meeting, 11 and they didn't call a single witness. They didn't call Mr. 12 Meyers, they didn't call Mr. Campbell, they didn't call--they 13 didn't ask Mr. Potter whether any of this was discussed with 14 the Department of Energy. In fact, the witnesses all said, 15 no, we didn't tell the Department of Energy about insolid 16 pondcrete before May 23, '88. Mr. Weston, one of the earlier 17 witnesses said, no, I didn't tell DOE because I didn't know 18 either. 19 He did know. Look at the documents. He did know. 20 And listen to the operator's testimony, and listen to the 21 other people's testimony, the foreman. They told everybody 22 right up the chain. They reported to their management. They 23 kept the books. Their management saw it. DOE didn't. 24 Now, in fact, there's another note that shows this, 25 and that's an ED Naimon note two days later, September 11,

5102

1 1987, two days after the September 9 note. That's Exhibit 2 342. 3 Here's Ed Naimon writing directly to Dom Sanchini 4 two days afterwards. This note wasn't shown to DOE. This is 5 a separate conversation. And in it, Naimon recommends 6 continued use of the tri-wall containers. He doesn't mention 7 any problems with the weather, but in any event he says, 8 "Continued use of the tri-wall containers." And he 9 specifically mentions in this note, he says, "I think cost 10 wise we should continue as we're doing for the 2--for Pond 11 207A." They want to save money and continue to use tri- 12 walls. 13 Later on this note, he says, "HS&E concerns, 14 leaching, et cetera, would very likely negate this option." 15 The option he's talking about there is not using containers 16 at all. What is he saying? HS&E, that's Gary Potter, 17 concerns about leaching, the concerns that led to a meeting 18 that Potter wrote about on the September 9 note that actually 19 occurred several days later. Leaching means pondcrete and 20 water are coming together off the pad. Why? Because it's 21 leaking, it's spilling on the pads. 22 So Sanchini knows this at least as of September 11, 23 '87, and he chooses to continue with the tri-wall containers. 24 Doesn't choose plywood, doesn't choose anything else. 25 Now, in the same period, actually three days later,

p. 5103

1 there's evidence in the record of a spill of pondcrete. 2 There's specific evidence of that. We think there's other 3 evidence, but there's specific evidence of a spill of 4 pondcrete on September 14, 1987, while they're having all 5 these meetings about the solidity problems, and that's why 6 there's a spill. 7 2475. You might recall Mr. Wayne Stetson, who came 8 in here, testified for a very brief period of time about his 9 note, said he couldn't recall anything except what was stated 10 in the note. The note says it all. "Old 750 parking lot, 11 liquid from box." That's on the pad, that's liquid. And 12 then later down he says, "They took over the decon." And you 13 heard what witnesses said decon means, decontamination. 14 You've got to clean up the contamination. That's not 15 rainwater. That's pondcrete having to be deconned because it 16 spilled on the pad on September 14, 1987. 17 And who else knew about this? Frank Blaha. 18 There's a note about him as well, Exhibit 930. There's 19 Blaha's September 22, 1987, note. He testified about this, 20 "750 parking lot, only checked after accidents last week." 21 September 14th, maybe? And found--and there was a dispute as 22 to whether that was greater than two, greater than 20, 72. 23 It doesn't matter. He says after that, "Deconned with wet 24 Chem-wipes." That's cleaning up the spill right on the pad. 25 750 parking lot, eight in a building, it's on the pad.

5104

1 And, in fact, when I showed Mr. Blaha this note, he 2 said, oh, yes, I knew about the spill. And when I showed him 3 a letter that he wrote a year later for Mr. McKinley's 4 signature that said there have only been spills on the 904 5 Pad, he said, whoops, it should have said 752 because, yes, 6 we did know about spills. He admitted that it was a false 7 statement. He knew of this spill, so did the others. They 8 were all talking about it internally in September of 1987. 9 There's other places on this same document. Up top 10 Blaha writes, "Forklifts often smeared up to"--and there's 11 another radiological reading--"often have spills." That's 12 when they take the pondcrete from the building, bring them on 13 the pad, or maybe bring them back, they're having spills not 14 reported to the Department of Energy. 15 There were other witnesses who talked about spills 16 and other leaking problems in the fall of '87. Probably one 17 of the most credible of that was Jolaine Fenner. You might 18 recall she came in here, and she talked about her working on 19 the pondcrete operations under Ron Teel. And remember, Dan 20 Tallman takes over for Ron Teel in January of '88. So when 21 people are talking about what happened under Teel, that's 22 before May 23, 1988, and that's what Fenner said. 23 Teel was her foreman. She had a spill moving from 24 Building 788, maybe with this forklift, to the 750 Pad. She 25 said she was at the 750 Pad at the time, and it was three

5105

1 quarters full. I submit to you that means it was before the 2 904 Pad was constructed in September or October of '87. 3 That's when Fenner has a spill, and she said, the boxes fell, 4 and one broke open onto the pad. She said the boxes had just 5 been manufactured, not exposed to the weather. She said it 6 was mushy, the substance inside. And then when asked on 7 cross-examination by Rockwell's counsel, "Was it leaking?" 8 She said, "It was beyond leaking, it was spilling," more than 9 one pound, more than one pint. That's a lot. That's a lot 10 of hazardous mixed waste on the pad. 11 Now, Fenner also told you that before this spill 12 she was part of a discussion about finishing out the clean- 13 out of the pond, and that if you finished it out sooner, you 14 wouldn't be able to make the concrete set up as well. That's 15 under Teel, trying to get it without setting up as well, to 16 finish it, to meet the goals, to get paid more money. 17 Now, she also testified, again all under Teel, that 18 there were leaners on the pad due to soft and mushy boxes, 19 that the boxes were brought back from the 750 Pad that had 20 problems into the 788 building. And she also explained to 21 you an occurrence that she recalled inside the 788 building 22 with one of these boxes that were brought back from the pad 23 where Teel was present, and that she looked inside. The top 24 was hard, but underneath it was soft. 25 And these boxes, she said, were put into wooden

5106

1 crates, the same sort of crates as that sewer sludge that I 2 talked to you about before. 3 Now, Rockwell's counsel tried to argue that this 4 actually occurred in 1989, what Ms. Fenner was telling you 5 about. But remember what Ms. Fenner said when she was asked 6 that question. She said, "Yeah, but in 1989 I wasn't working 7 on the pads. Yeah, there were these repackaging efforts 8 after the spill, but I wasn't working on the pads then." And 9 remember, she said it was all under Ron Teel. And it was her 10 spill on the pad, it was 1987, Rockwell knew it, didn't tell 11 DOE. 12 So that's in the fall of '87, and around this time, 13 you've got Ron Henry's elevated levels data now circulating. 14 So we talked about September 9, September 11, September 14, 15 Blaha's September 22 note about the 750 Pad spill. And upper 16 management is getting the attention of all this, and that's 17 when Blaha writes his memo, his September 28, 1987, memo. 18 And he writes it after several meetings that Gary Potter is 19 having with his staff, and that starts on September 16. We 20 don't need to see all the documents. On September--you can 21 look at them all. 22 September 16 he starts. There's a note, a weekly 23 highlight note, about a brainstorming meeting attended by 24 Blaha, Potter and others. I submit to you that was the 25 September 14 meeting that Mr. Potter wrote about on the note,

p.5107

1 his copy of the September 9 note. And then this meeting was 2 followed by a weekly highlights report from Potter to 3 Campbell. That I'd like to show you. It's Exhibit 599. 4 September 18, '87, this is after the September 14 5 spill, probably after the Fenner spills and all of that 6 testimony, after the Henry runoff data is being made by 7 Henry. And here Potter says to Mr. Campbell, his boss, the 8 first paragraph, "Runoff from the 750 building parking lot 9 used for storage of pondcrete has occasionally shown slightly 10 elevated alpha and beta counts. This may be coming off of 11 pallets used for pondcrete storage or from the pondcrete 12 itself or from other nationally-occurring isotopes." And 13 then he suggests a solution to do some sampling of more 14 volumes. 15 This is all internal. This is Potter writing to 16 his boss, Campbell. 17 Now, the next document I want to show you is 18 Exhibit 2476, the last page of this exhibit. And you'll have 19 the original in the jury room, so you'll probably be able to 20 read the note better than on the copy. This is a note on 21 that same paragraph that I just referenced you, which 22 Campbell sends up. Potter writes it to Campbell, Campbell 23 copies the same paragraph, sends it up. Chris Bader, another 24 Rockwell top manager, he makes a note on here, and he says, 25 "George," meaning George Campbell, "this isn't a solution.

5108

1 This is an evaluation to determine if we have a problem. My 2 interest is that we need to know ASAP. As you know, we do 3 not have berm. We do not berm the storage area, and the 4 runoff goes down the hill." 5 That's what Chris Bader says to George Campbell. 6 Do they do anything about this afterwards? Yet, this is a 7 September 21, '87, document. On that same day, you can look 8 back in Swenson's inspection log, he notes leaking from the 9 pondcrete. He notes that the next week as well, September 10 28, '87. And after all this, that's when Blaha writes his 11 September 28, 1987, memo with the elevated levels data. And 12 that memo, Exhibit 51. 13 Blaha tells Potter--and recall Blaha said his boss 14 was Setlock, but he went straight to Potter with this memo. 15 "As can be seen, the average of the means for gross alpha and 16 beta are significantly 95 percent and 90 percent confidence 17 level respectively elevated for the period after pondcrete 18 storage began." 19 And you'll see in the attachments, which are Ron 20 Henry's attachments, he compares before pondcrete storage, 21 after pondcrete storage, and after has elevated levels. 22 Now, Blaha, in this same memo, he discusses some 23 suggested actions. He says on the next page that "No samples 24 have been taken since June 18, 1987." You can ask yourself 25 why they didn't take any since then. And then he says,

5109

1 again, "The source may be naturally occurring from pondcrete 2 from contamination and other potential sources." 3 Do they ever check to find out? What did Blaha 4 say? Blaha said, "I didn't do anything after this memo. The 5 only thing I remember is that I had a conversation with Daryl 6 Hornbacher after he had a meeting with Potter in October of 7 '87. But I," Blaha, "I didn't do anything after this. I 8 didn't do any more samples, and I don't think--I don't think 9 or I don't know whether those suggested actions that he made 10 were ever taken." 11 I submit to you the reason they didn't do anything 12 is because they knew the cause, because they knew of the 13 spills, they knew that it was insolid, and they knew that's 14 the reason that this stuff was resulting in elevated levels. 15 Now, I mention Mr. Potter, and Mr. Potter takes 16 this information, and he passes it on up as well. He passes 17 it on to Ed Naimon, and he asks for a meeting. And he 18 attaches--I showed you the last page of that document. It's 19 an October, '87, document. Potter sends that off to Ed 20 Naimon. He asks Naimon for a meeting. He has the meeting on 21 October 13, '87, and you can see that in Potter's diary, 22 Exhibit 675, page 103. 23 October 13, '87, "750 meeting, pondcrete. Ficklin, 24 Naimon, Hornbacher, Hickle, Setlock, Potter talks about it." 25 Down it says, "Ficklin will take care of" something. "Put

5110

1 berm"--or "telling engineering, put berm around new pad west 2 of 904." The new pad is the 904 Pad. 3 Why do you suggest putting a pad--or a berm around 4 the pad? Because you know there's runoff, and they knew that 5 it had elevated levels. They knew it was coming from the 6 pondcrete itself. Nonetheless, they didn't put the berm on 7 it until after the May 23 spill, and there's no evidence that 8 they even told DOE to put a berm on this pad. 9 Now, in this document the October document, Potter 10 doesn't say that the pondcrete should be stored outside. He 11 doesn't say anything about weather conditions. It's because 12 they knew that weather is not going to make something that's 13 already insolid, insolid. It already was insolid, and they 14 knew that weather only had an impact on the boxes. So he 15 doesn't even recommend doing anything other than keeping this 16 stuff out on the pads, maybe putting a berm around the new 17 pad. But I'm not going to say put around this pad because 18 maybe, then, I'm going to admit to DOE that there's a problem 19 here. And they didn't want to do that. That's at least 20 deliberate ignorance and reckless disregard. 21 Now, there's not a single document that has been 22 shows to you that these readings, these elevated level 23 readings, were given to the Department of Energy until after 24 the May 23, 1988, spill. The only evidence presented by 25 Rockwell on this point is the testimony of John Krueger.

5111

1 And you recall Mr. Krueger said that Blaha showed 2 him his September 28 memo, not Mr. Potter's memo, but the 3 September 28 memo. Now, you might recall that Krueger worked 4 for DOE straight from college, and then after about two 5 years, he went into private industry, in fact, Roy F. Weston, 6 Rockwell's subcontractor. And you might recall his testimony 7 about a thesis article that he wrote, which took a very 8 aggressive pro-Rockwell position. 9 And you also heard his testimony about his May 13, 10 1987, note directly to Mr. Sanchini. That's Exhibit 2781. 11 In this note, May 13, '87, Krueger writes directly to 12 Sanchini, "Treat confidentially." And that's in hand, and in 13 the last paragraph on the note, he says it again, "If you 14 require further insight or information, please contact me. 15 This letter is for your information only and should not be 16 referenced. Please treat it confidentially." 17 This is Krueger, who obtained information in 18 confidence from his boss and supposed mentor, John Whitsett. 19 And when Krueger gives the information to Sanchini, he tells 20 Sanchini to keep it confidential. That's how he treated his 21 boss and supposed mentor. He write directly to Sanchini and 22 told Sanchini to keep it confidential. 23 Now, there are other reasons why Krueger's 24 testimony that he received Blaha's memo just doesn't make 25 sense based upon the objective evidence. First, Blaha's memo

5112

1 doesn't have him as a recipient of it. Krueger says, well, 2 yeah, that's right. I was often shown some things. No, I 3 didn't get a copy of it. I saw it. I didn't get a copy of 4 it. 5 But there's not a single piece of paper. Blaha had 6 a big notebook. Is there any reference shown to you in the 7 notebook that he talked to Krueger about this? No. And, in 8 fact, Blaha's own testimony contradicts Krueger. As I 9 mentioned before, he testified he didn't tell anyone from DOE 10 about the elevated levels, and after his September 28 memo 11 all the way up to after the May 23 spill, the only 12 conversation he recalls about this was a conversation he had 13 with Rockwell's Daryl Hornbacher when Hornbacher reported to 14 him about the Gary Potter meeting with Ed Naimon. That's the 15 only thing that Blaha said. He never said, "I talked to 16 Krueger." He never said, "I gave that to Krueger," because 17 he didn't. 18 And there's not a single piece of other evidence 19 that any of these other people, who of the Rockwell people, 20 who had copies of this memo, said anything to DOE about it 21 until after the May 23, 1988, spill. 22 And, in fact, when you think about the testimony of 23 Candy Jierree, about what she found out after the May 23, 24 '88, spill, it proves the point. 25 In September, 1988, there are documents about these

5113

1 elevated levels. No documents between this whole time period 2 to DOE, but September, '88, there are documents about the 3 elevated levels, and the document you should look at is 4 Exhibit 43. 5 This is a letter, September 14, 1988, months after 6 the spill was reported to DOE. It's a letter from Kirk 7 McKinley to Albert Whiteman. Look in the left-hand corner, 8 the initials FJB. Frank J. Blaha drafted this letter, the 9 person that Krueger said gave him the document of the year 10 before. 11 And in the middle paragraph there is reference to 12 the 750 Pad storage, and there is reference to elevated 13 levels. They don't say that the elevated levels were coming 14 from the pondcrete when they knew about it. In fact, it's in 15 this same letter, the first paragraph of this same letter 16 where they tell DOE, "Spills have only occurred to date at 17 the 904 Pad," and it's that same sentence that Blaha said was 18 false because he knew about the 750 Pad spill in 1987. 19 And this is the letter when DOE is told about the 20 elevated level. They are told there are spills on the 904 21 Pad. They are told there's elevated levels from the 22 pondcrete on the 904 Pad, and then they say, whoops, let's 23 give you some data on the 750 Pad. And they don't say there 24 were spills on that pad, and they don't say that the elevated 25 levels on that pad were caused by the pondcrete.

5114

1 And do you think that if Blaha had given this stuff 2 to Krueger the year before, in the second paragraph when they 3 talk about the 750 Pad data, you think maybe he would say, 4 "as I told John Krueger a year ago"? Do you think maybe he 5 would want to protect himself if he actually did give it? He 6 doesn't. He just gives the data. 7 And there's more evidence as to why the first time 8 this data was provided to the DOE was in September, '88, and 9 that's again Candy Jierree's testimony and Candy Jierree's 10 notes from a September, '88, meeting, and that's Exhibit 804. 11 This is a RCRA meeting where they discuss elevated 12 levels. It's September, '88. It's not September, '87. The 13 page that you should look at, I think it's the fifth page, 14 actually has the heading of 750 Pad data, and it's the same 15 data from the year before. And there's a note that Candy 16 Jierree wrote during the meeting that says, "Rick says didn't 17 come from blocks." That's Rick Lawton that she said and 18 Rockwell said at this meeting, no, that's 750 Pad data, the 19 elevated levels. That didn't come from the pondcrete. 20 And Candy Jierree told you, I didn't know about any 21 of this before May 23, '88, and even when they told me about 22 the 750 Pad data, they said it didn't come from the pondcrete 23 blocks themselves. 24 Now, Rockwell's counsel might want you to believe 25 that Candy Jierree--there was some questioning of Candy

5115

1 Jierree--"Did you give all of this data to the Colorado 2 Department of Health," and the data that was given to the 3 Colorado Department of Health was the 904 Pad data. Why was 4 that? Because DOE was being told 904 Pad spills, 904 Pad 5 elevated levels resulting from the spills. 750 Pad, no, no 6 spills, and the data not caused by the pondcrete. That's why 7 they gave the 904 Pad data to the CDH when Rockwell knew from 8 the year earlier and otherwise that there were spills on the 9 750 Pad, and the elevated levels were caused by that. 10 Now, going back to Krueger's testimony for just a 11 moment. Even if you accept Krueger's testimony that Blaha 12 showed him the data in September of '87, remember what 13 Krueger said Blaha told him about that. He said that the 14 reason was housekeeping, that Blaha said it was housekeeping. 15 Krueger admitted to you he didn't know of any spills prior to 16 May 23, '88. In fact, he was gone way before that. But he 17 didn't know of it, and he didn't have any idea that the 18 elevated levels were caused from the pondcrete itself because 19 he didn't know about spills. No one from DOE knew about 20 spills. 21 Now, just one thing on this issue, and then maybe 22 we'll take a morning break. But the connection between 23 spills and elevated levels is very critical here because when 24 you know about spills and you have the elevated levels, you 25 know that the elevated levels are caused by the pondcrete.

5116

1 You know that for sure. You know it definitively. 2 Now, Rockwell certainly knew because it knew about 3 insolid pondcrete, and it knew that that was the cause. When 4 you have spills, you know for sure that it was the cause. 5 And all you have to do is look at the documentation after May 6 23, 1988, when there's elevated levels on the 904 Pad. 7 Rockwell immediately says, coming from the pondcrete itself, 8 and that's what everyone assumes because there's a direct 9 connection between those things. And there's a lot of 10 documents on that where they pass the information up the 11 chain, they know of that connection. And they knew about it 12 back in '87 as well. 13 And there's one more document about how they knew 14 about that connection in '87 as well, and that's a Blaha 15 document. Again, it's Exhibit 247. 16 August 14, 1987, Blaha writes a memo. Potter is 17 copied on it. And in the last paragraph, he's talking about 18 what to do about a new storage pad which becomes the 904 Pad. 19 And he says, "Although only solids will apparently be stored 20 outside, contaminated runoff may occur from moisture 21 contacting our solids." That's the moisture, that's the 22 water coming in contact with the pondcrete. 23 This problem of moisture contacting solids has been 24 documented at the 750 Storage Pad, Unit 25. It has been 25 documented. He knew it. He knew it in '87. He knew that

5117

1 there was a connection between those two things, and they 2 didn't tell DOE. 3 Your Honor, I can continue, or I can-- 4 THE COURT: I think we'll take a break at this point. 5 MS. VULLO: Okay. 6 THE COURT: Members of the jury, we're going to take our 7 15-minute recess, and, of course, I caution you again to keep 8 open minds, remembering there's another side to the case that 9 you haven't heard. And you haven't heard all of the 10 plaintiffs' side, and you haven't heard my instructions. So 11 please withhold any judgment in this matter and don't discuss 12 it during the recess. You're excused now 15 minutes. 13 (10:35 a.m. - Jury excused.) 14 THE COURT: We'll be in recess. 15 (10:35 a.m. - Recess accordingly.) 16 (At 10:51 a.m. on March 29, 1999, with counsel for the 17 parties present, the following proceedings were had:) 18 THE COURT: Please be seated. 19 (10:53 a.m. - Jury present.) 20 THE COURT: Please continue, Ms. Vullo. 21 MS. VULLO: Thank you. 22 Picking up from what I was talking about right 23 before the break where I was explaining the connection 24 between spills and knowledge that elevated levels are caused 25 by pondcrete. And I showed you Blaha's August, '87, note,

5118

1 internal note, that Potter got a copy of. And now I want to 2 talk to you about Gary Potter's testimony before you on this 3 very subject. 4 Now, you might recall that Gary Potter was a 5 recipient of Wayne Meyers' September 9 note, and that he was 6 the HS&E person who had the meeting on September 14, '87, 7 with his staff to talk about one of the alternate methods 8 that Mr. Meyers was referring to in his note, meaning trying 9 to make it a more solid block. 10 And then on the September 11 Ed Naimon note to Dom 11 Sanchini, he referenced "leaching and HS&E concerns," which 12 means leaching connected with insolidity problems, meaning 13 connecting with spills. 14 Now, Potter testified that he doesn't recall that 15 meeting, but he admitted that he had the note, and he 16 admitted that he had the meeting. 17 And as you also recall, there's all this flurry of 18 correspondence in September and early October on the elevated 19 levels. Remember, Henry had the data before, but all of a 20 sudden all of this correspondence is coming to upper 21 management at Rockwell. Why? Because they know of solidity 22 problems, they know of spills, and the connection with the 23 elevated levels is becoming very clear to them. 24 Now, Potter admitted that he presumed that the 25 pondcrete was supposed to be street hard like a cinder block,

5119

1 and he even recalled that on one occasion he touched it and 2 noted that it was soft. 3 But more importantly, recall the many 4 contradictions in Mr. Potter's testimony before you about 5 when specifically he knew of solidity problems with the 6 pondcrete and when he made that connection. I submit to you 7 he made that connection in September of '87 because he was 8 part of this flurry of correspondence, and he was part of 9 these meetings. And, in fact, that's how he testified 10 originally in 1994, and he changed that testimony in this 11 courtroom. 12 And you recall all the lines of Potter's testimony 13 that were read to him as I questioned him about that change 14 in testimony, and you'll recall that in 1994 when he gave his 15 first deposition, he said something to the effect of, "Well, 16 then when I connected the two things together, I didn't know 17 what the questioner had in mind." 18 Ask yourselves, why does it matter for a witness to 19 be truthful what he thinks the questioner had in mind. What 20 was the question? What was the answer? It should be a 21 truthful answer. 22 And, in fact, you might recall that later on, soon 23 after that first deposition, where he connected the two 24 things directly. He connected solidity problems, elevated 25 levels. Pondcrete is not the way it's supposed to be, and

5120

1 that's what the elevated levels are showing us. He said that 2 in '94, and he said that he knew that before he changed jobs. 3 You recall that he said that he changed jobs on May 9 of 4 1988, and you'll recall even here he admitted, "I had no 5 responsibility for pondcrete after that." Well, then he had 6 to have known this connection before May 9 of 1988, before he 7 changed jobs because he had no responsibility for pondcrete 8 after that. And again, I submit to you, he knew it in 9 September, '87. That's what the documentation shows, and 10 that's how he first testified before you. 11 And I ask you to very carefully consider Mr. 12 Potter's change in testimony on this point. And, in fact, it 13 makes sense that Potter was involved in this issue when he 14 was in HS&E because that's what his job was. That's what 15 Naimon says in the September 11 memo to Dom Sanchini; "HS&E 16 has concerns about leaching." 17 Potter has the meeting. Potter knows about Meyers' 18 note about making it a really solid block. He made the 19 connection then, and that's how he testified initially before 20 he figured out what the questioner had in mind. 21 And recall, also, his testimony that very soon 22 after his first deposition, he did this errata sheet after he 23 had a conversation with Rockwell's counsel, and he made some 24 changes. He testified about the changes he made. The one 25 change he didn't make, however, was on the timing. He didn't

p.5121

1 say he didn't know about it. He just says, "Well, there's a 2 connection here that I'm not sure I was making." But he 3 didn't change the testimony that whenever he knew it, it was 4 certainly before he changed jobs on May 9 of 1988. And 5 again, I submit to you, he knew about it earlier because that 6 was how he first testified, and that was the truthful 7 testimony. 8 Now, with all of this knowledge, in the fall of 9 '87, including Mr. Potter's knowledge at that time of the 10 connection between spills, solidity and elevated levels, what 11 does Rockwell tell DOE about pondcrete? 12 Look again at Ed Naimon's waste management report 13 for September of '87. It's Exhibit 1303. He says here, 14 September, '87, "The clean-out of Solar Pond 207A continues 15 on schedule. Over 12,000 boxes of pondcrete waste are now in 16 storage on the two storage pads." 17 This is a document, by the way, I was mentioning 18 before with respect to Swenson's August, '87, note on his 19 memo where he notes 11,200 boxes in August. And here Naimon 20 says in September it's 12,000. That's another reason why 21 Swenson was correcting his note, as opposed to his testimony, 22 that he knew of solidity problems in August of '87. 23 but here, after all of this knowledge, Ed Naimon, 24 who's involved in these discussions, talking to Potter as 25 well, he doesn't say a thing to DOE about those problems. He

5122

1 says, everything's on schedule, we're doing our job, give us 2 more money. And, in fact, you recall his testimony, that 3 that was a credit to his organization when he said things 4 like this, and that resulted in good award fees for Rockwell. 5 And this period, which I talked about before, is 6 the period through September, 1987, and there was a more than 7 four million dollar award fee given to Rockwell for that 8 period while they were hiding all this stuff from the 9 Department of Energy 10 Now, for October of '87, after this, I already 11 mentioned Mr. Potter's memo and the meeting with Naimon and 12 the connection with the elevated levels and the discussions 13 about the berm. 14 You should also look at, once again, Leif Swenson's 15 inspection logs. He notes on October 5 and 12 and 19 and 26, 16 "leaking from the containers." He notes on November 2, 9, 17 16, 23 and 30, "leaking from the containers." 18 And then we get to December, '87. That's where 19 Teel takes over for the month, and that's where Teel doesn't 20 check off that block for leaking from the containers. That's 21 the end of the month when Nevada comes to inspect the site. 22 Teel doesn't check off leaking. He's takes it over. 23 Why is he taking it over from Swenson in December 24 of '87? Teel was the foreman for a long time before that. 25 Why after October and November, Swenson notes leaking, Teel

p.5123

1 takes over, and all of a sudden there's no leaking noted on 2 those forms? It just happens to be when he learns--remember, 3 December 4, 1987, is when Rockwell learns that Nevada is 4 coming. That's the date of the letter that I showed to Teel. 5 They learned they're coming. 6 December 4th, Teel takes over the inspection, 7 doesn't note leaking. Nevada comes at the end of the month. 8 Teel doesn't tell them of any problems. He knows all this. 9 He knows of the prior inspections. He knows of the prior 10 spills. He knows of the conversations. Every operator said, 11 "I told Teel, I told Hewitt." And they all said, "Open 12 communication up to Naimon as well." 13 Now, there are other witnesses as well that 14 testified about pondcrete solidity problems in 1987 during 15 the time when Teel was the foreman. Again, Tallman takes 16 over in January, '88. 17 I've already mentioned Jolaine Fenner, who talks 18 about her spill. We're not sure exactly when it was. Was it 19 the summer of '87? Was it the fall of '87? Sometime in that 20 time period, under Teel, before Tallman takes over. 21 And then there was Mark Juarez. We questioned him, 22 very short testimony. He explained that he had some 23 responsibility for the tarps on the pad, and he explained 24 that in the course of his duties, looking at the tarps, he 25 saw that there was some boxes of pondcrete on the 750 Pad

5124

1 that were not full hardened, that did not solidify well, and 2 he said he told Teel about this; again, all under Teel, 3 before the end of '87. 4 Likewise, Howard Long testified that when Teel took 5 over--because Long was there even under Fryback--when Teel 6 took over, Long noticed a gradual declining hardness of the 7 waste, and he also testified that the inspection process got 8 more lax, that blocks were passing inspection that would not 9 have passed when Fryback was the foreman. And Long said he 10 stated these concerns to Naimon and Weston, but they 11 continued to pressure the operators to maintain a high level 12 of production. 13 Long also told you that he recalled pondcrete on 14 the 750 Pad that needed to be deconned with Chem-wipes. That 15 sounds like that Stetson note of September of '87, or maybe 16 it's another one. He said that once storage on the 750 Pad 17 began, which was sometime earlier in '87, once a week they 18 would vacuum liquids out of the boxes on the pads. 19 How did Long explain how they did that? He said 20 they went in the box, and they made an incision in the 21 plastic liner to take the water out from inside the liner. 22 They had to make the incision to take the water out. That 23 means the water is not coming from the rain. It's inside the 24 plastic liner that they have to cut through to take the water 25 out.

5125

1 And Long said they took lots of gallons out that 2 way. And he said, what did he do afterwards? He tried to 3 tie it up and put it back. Presumably they didn't have the 4 full incision covered, and that's how the stuff spilled out, 5 and that's how the elevated levels were created because the 6 pondcrete's coming out of these plastic liners because 7 they're cutting through them to vacuum liquids out right on 8 the pads. 9 Now, witnesses also testified before you about 10 moving of boxes from the pad to the 788 building. And you 11 heard Chuck Wickland. Again, he was the manager before 12 Naimon took over. He said that was not proper. You're not 13 supposed to move stuff from the permitted area, the 750 Pad, 14 to the 90-day accumulation area, which was the Building 788, 15 without getting Colorado Department of Health approval. They 16 were doing it. Mike Sattler confirmed that he wanted to know 17 about those things because when you do that, there is a risk 18 of the stuff falling out as you're bringing it back to the 19 788 Building. And that's not what storage pursuant to a 20 permit is supposed to be, pursuant to a permit that is 21 obtained because you're making representations that the stuff 22 is solid. 23 Now, Leif Swenson also testified about a spill that 24 he recalled before May 23, '88. So even with all of his 25 testimony that he was trying to change that memo, he

5126

1 testified very clearly about a spill before May 23, '88 that 2 he was involved with on the pad. He was involved in cleaning 3 it up, and he said it was sent back to 788 building. He also 4 said he report that to Teel. Why was that? 1987. He didn't 5 say it was reported to Tallman, but even if it was, he said 6 it was before May 23, 1988, and that was before the 7 government knew about these problems. 8 Now, through '87, Rockwell continues with its false 9 statements about the nature of this waste form. And going 10 back to Chuck Wickland, who while he had been sent off to I 11 think he said WINN site, he was sent off there, but he was 12 still dealing with Nevada on some of the disposal issues with 13 Nevada, and he was also dealing with some DOE order issues. 14 And you might recall his testimony that there was a proposed 15 DOE order regarding packaging for the waste forms, and that 16 he made some comments about that DOE order. 17 First, Exhibit 2580, this is a November 23, 1987 18 letter from Chuck Wickland to Earl Whiteman, he copies it to 19 Bill Weston and he copies it to Ed Naimon, who know what's 20 going on out there, and he responds to a proposed DOE order 21 that would not have allowed tri-wall containers for certain 22 wastes, and this is what Chuck Wickland says, he recommends 23 not packaging into plywood, he talks about the expense that 24 it would cost to go from tri-wall to plywood, the additional 25 expense, that is. And in the last sentence, he says we don't

5127

1 have to do that. Why? This seems unwarranted considering 2 the non-compressible--he earlier said nearly incompressible-- 3 now he says non-compressible, stable nature of these waste 4 forms. 5 In November, '87, were they stable? Were they non- 6 compressible? No. Did Wickland know it? Probably not. But 7 Weston knew it, and Naimon knew it. They got copies of this 8 letter. And as Wickland said, they never came to him as he 9 was sending this correspondence and said, Chuck, you've got 10 it wrong. They never said that. They just let that 11 correspondence flow to DOE. And they had opportunity to do 12 that, because from November, '87 to January, '88, Wickland 13 writes it again, and they had the first one and they had the 14 second one, they never changed it before he wrote the second 15 one. And the second one is Exhibit 2648, same exact 16 statement, this seems unwarranted. Again, don't go to 17 plywood. We don't need to spend that extra money. It's not 18 warranted, because tri-wall is good. Why? Because the waste 19 form inside is solid enough so that you can put it in these 20 cardboard boxes and keep them on the pads. That's what he's 21 saying. Same thing. No one corrects him. More false 22 statements by Rockwell. 23 Now we come to--that's January, '88, and now 24 Tallman takes over as foreman from Teel, and the pondcrete 25 problems not only continue, they get worse. And here are

p.5128

1 some examples. You might recall first of all Candy Jierree's 2 testimony that after she learned of the May 23, 1988 spill, 3 she had a conversation with Bill Weston. I told you about 4 one conversation. She talked about another. She said that 5 Weston told her that they tried to maximize waste and 6 minimize cement in order to save money on the cement. What 7 they were doing was they were putting less cement gradually, 8 and the least amount of cement was being done under Tallman 9 because they were trying to exceed their goals. They were 10 trying to get more money from the government. They were 11 trying to get their contract renewed. And Naimon's own 12 documents confirmed the point, you might recall I questioned 13 Naimon about this, and he agreed, the cement was reduced some 14 from 600 to 200. It was reduced throughout the time and 15 continued to be reduced under Tallman's reign as well. 16 In fact, even Frank Blaha testified that four days 17 after the May 23, '88 spill, he had a meeting with some of 18 these operators. It was reported to him that less cement was 19 being used. Nobody was talked about the weather or 20 freeze/thaw. They were saying less cement was being used; 21 that's why this thing happened. 22 In fact, the discoveries after the May 23 spill 23 confirm that there was less cement and, therefore, even less 24 solid pondcrete after Tallman took over as foreman. Because 25 after the spill, you heard the testimony there were more

p.5129

1 newly made boxes had the greater solidity problems, and there 2 were less problems with the older boxes. And this refutes 3 certainly Rockwell's argument that weather was the problem. 4 In fact, you might recall the photograph, a May 24, 5 1988 photograph. If I find my records, I'll pull it up for 6 you. 255. This is an agreed May 24, 1988 photograph of a 7 pondcrete box that clearly doesn't meet the requirements, as 8 all of the witnesses have said. 9 There's liquid oozing out on the side, and you see 10 the number 80518865, I think it says, and you might recall 11 Howard Long's testimony about that, all you have to do is 12 look back at the log, the inventory log where they talk-- 13 where it lists when pondcrete boxes were manufactured, and 14 that log is 1784. He had the original in his hands when he 15 gave his testimony, and it showed that that box passed 16 inspection on May 14, 1988, just ten days before the 17 photograph was taken, and it looked like that, and stuff was 18 spilling out. 19 Was that from sitting outside ten days in the 20 weather caused that, or was that because it wasn't solid when 21 it was put out there on the pad, just like it was doing 22 before, and just like it was doing throughout Teel's reign, 23 and even worse under Tallman? 24 Now, February of '88, Rockwell continues 25 nonetheless with its false statements, and it's Exhibit 385,

5130

1 and this is another one of those implementation plans that we 2 had in July, '87 and August, '87, similar statements. No 3 confirmed leaching of hazardous constituents. They also talk 4 about the problems with condensation and leaks through the 5 tarps over the pondcrete are recognize and efforts are made 6 to minimize the problems by careful placement of tarps and 7 weekly inspections of the area. Runoff water from the area 8 is sampled when produced in order to verify the water is not 9 leaching out hazardous constituents. To date, no confirmed 10 leaching of hazardous constituents out of the pondcrete has 11 been identified. 12 They're just saying everything is going okay. We 13 may have some problems with condensation coming out of the 14 boxes, but we're very careful about the placement of the 15 tarps and about our weekly inspections, those weekly 16 inspections showing leaking. They don't say that to DOE when 17 they give this plan. And they say no confirmed leaching? 18 Again, the same statement that Henry said was false in July 19 of '87. It's still false now. 20 Now, there's even further evidence of spills in 21 March of '88, and for that, I ask you to look at Exhibit 850. 22 Exhibit 850 is a memo that Blaha--I'm sorry--that Ralph 23 Hawes, who is now deceased, wrote to Frank Blaha, and it was 24 copied to George Setlock and others. And in this memo, he 25 references