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The Boulder Daily Camera (Colorado)

Spurned Whistle-Blower

Congress Should Fix High Court's Troubling Ruling

Clint Talbott

The nation is deeply indebted to James Stone. Had he not courageously exposed its environmental offenses, the Rocky Flats nuclear weapons plant might not have been shut down in 1989, and Rockwell International might not have been exposed as a syndicate of environmental crime.

It is therefore sad that the U.S. Supreme Court has rejected Stone's claim to a share in $4.2 million in "whistle-blower" penalties assessed against Rockwell. Stone was the first to blow the whistle on Rockwell. But, the high court ruled, he was not, legally speaking, a whistle-blower.

From 1980 to 1986, Stone worked as an engineer at the nuclear-bomb factory. While he was there, Rockwell — which was running the facility for the government — floated the idea of disposing of toxic pond sludge by sealing it in squares of concrete. Stone reviewed the manufacturing process and concluded that it "would not work."

He later explained that the "pondcrete" would "deteriorate and cause unwanted release of toxic wastes to the environment." Rockwell ignored his advice and, in March 1986, fired him.

By October 1986, court documents show, Rockwell knew that "substantial" numbers of pondcrete blocks were "insolid," endangering public health. A year after his dismissal, Stone went to the FBI and revealed what he knew.

Leaking pondcrete wasn't the half of it. Stone reported that incinerators were used daily for years after 1981, when they failed testing, and that some of the incinerated waste contained plutonium.

Additionally, Stone reported that substantial quantities of plutonium were missing, and that much was being caught in the air ducts at Rocky Flats. There was a risk that the plutonium would undergo a spontaneous nuclear reaction that would spew deadly levels of radioactivity over Denver's skies. The Department of Energy later confirmed that 61 pounds of plutonium had amassed in the ducts.

Stone was the first Rocky Flats whistle-blower to tip off the FBI, providing the agency with 3,200 pages of documentation of environmental crimes. The FBI raided and shut down the plant in 1989, and Rockwell settled the federal charges with an $18 million fine, one of the largest environmental penalties in U.S. history.

Stone was clearly a pivotal whistleblower. But on Tuesday, the U.S. Supreme Court ruled that he is not entitled to any monetary reward. In a 6-2 ruling, the high court held that Stone was not an "original source" of information about the crimes.

First, the court argued, Stone did not witness the pondcrete failure; he merely predicted it. Further, it held, the manner in which the pondcrete failed differed from the way Stone predicted it would fail.

As dissenting justices John Paul Stevens and Ruth Bader Ginsburg noted, the majority read the False Claims Act, which can be used against fraudulent government contractors, very narrowly. Even though Stone incorrectly predicted the way the pondcrete failed, Stevens wrote, "in my view, the record establishes that Stone was an original source" of information on Rockwell's crimes.

Some activists said the ruling would discourage prospective whistle-blowers. Some members of Congress argued that the law should be expanded. They are right. James Stone will get no reward for doing the right thing. Those who follow in his footsteps should not suffer the same insult.

Clint Talbott, for the editorial board


© 2007 Daily Camera and Boulder Publishing, LLC

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