Consulting in the Public Interest

Case No. 90-K-181

MERILYN COOK, et al.,

     v.

ROCKWELL INTERNATIONAL CORPORATION,
a Delaware Corporation, and

THE DOW CHEMICAL COMPANY,
a Delaware Corporation,

           Dr. Jan Beyea deposes and says:

           1. I am Jan Beyea and am currently Chief Scientist at the National Audubon Society. I have a doctorate in nuclear physics and I am an expert consultant regarding both nuclear accident consequences and the estimation of off-site exposures to residents who have been exposed to radioactive and non-radioactive hazardous substances resulting from releases from nuclear facilities. I have prepared analyses of nuclear facilities for the Swedish Energy Commission, the State of Lower Saxony in Germany, the Attorneys General of New York and Massachusetts, the New Jersey Department of Environmental Protection, the Governor of Pennsylvania, the Three Mile Island Public Health Fund and the President's Counsel on Environmental Quality.

           2. I make this declaration in connection with the Representative Plaintiffs' Memorandum In Support of Representative Plaintiffs' Motion for Class Certification (the "Memorandum"). I have been informed by Class Plaintiffs' counsel that at this stage of the proceedings the merits of the case are not at issue, rather the subject of these proceedings is the appropriateness of class action treatment and the class definition. The problem of determining the appropriate class definition has been made relatively easy in this case -- for reasons set forth more fully hereinafter -- since releases of hazardous substances from Rocky Flats and the resulting exposure among the off-site population must be proved on a geographic basis established by scientific estimation and modeling.

           3. Based on my training and experience, a review of the limited information concerning off-site exposure currently available in the public record, a review of the limited discovery which has been produced to plaintiffs to date, and the use of established scientific modeling techniques, I have concluded that a population surrounding Rocky Flats has been significantly exposed to radioactive and non-radioactive hazardous substances that were released from Rocky Flats to the off-site environment.

           4. In addition, even at this early stage, I have been able to calculate preliminary quantitative and relative dose and exposure estimates for three categories of hazardous substances released from Rocky Flats and to which the population has been exposed. These estimates of dose and exposure are preliminary and are likely to be refined and adjusted as further information is obtained during the course of discovery.

           5. I have been able to determine that the population surrounding Rocky Flats has been significantly exposed to several of the following hazardous radioactive and non-radioactive substances: Plutonium (and accompanying Americium), Beryllium, Carbon Tetrachloride, Chloroform, and Ethylene Oxide. In a prior submission to the Court, I quantified the exposures of the class representatives to each of these substances.

           6. There are considerable open areas for further scientific investigation, but based on the limited information regarding the types and quantities of hazardous substances used at Rocky Flats, and the release mechanisms and exposure pathways identified to date, additional off-site exposures to the population near Rocky Flats of an even more extensive nature are likely to be identified.

           7. In order to determine the fact and extent of exposure of hazardous substances released from Rocky Flats among the population it is necessary to apply scientific modeling techniques, employing the available data and information about the nature of plant operations and the properties of hazardous substances released as they migrate through the off-site environment. This process is known as a "dose reconstruction." The theory underlying dose reconstruction is conceptually straightforward. It consists of determining what kinds of hazardous substances have been released, the quantities of material released, the pathways of release to the environment, and the population that has been exposed. The eventual outcome of this work is to develop a quantitative risk assessment for the exposed population. However, the application of a dose reconstruction investigation to the Rocky Flats facility is technically challenging, given its four decades of complex and largely secret operations.

           8. The numerous hazardous materials which were released off-site from Rocky Flats fall into one of three principal categories, termed as follows: (1) radionuclides; (2) volatile organic compounds ("VOCs"); and (3) other hazardous substances, including toxic metals and other non-radioactive inorganic substances ("Inorganic Substances").

           9. The term "radionuclide" is formally defined as a "radioactive species of an atom characterized by the constitution of its nucleus." [l] Such a substance is capable of emitting ionizing radiation, i.e., radiation of sufficient energy to dislodge electrons from an atom. At this time, plutonium appears to be the principal radionuclide released from Rocky Flats and resulting in significant off-site exposure among the population. The chief exposure threat from the released plutonium is the inhalation of tiny particles of this carcinogen among members of the exposed population. It has been possible to develop preliminary dose estimates for the population exposed to plutonium. See infra at ¶ 28. Additional radionuclides released to the off-site environment and leading to exposure among the population include: americium, uranium, tritium, cesium, and strontium.

           10. VOC refers to a compound containing hydrogen and carbon bonds that has a vapor pressure that permits ease of evaporation under normal atmospheric conditions. Tremendous quantities of VOCs were used at Rocky Flats as solvents, degreasing agents, and lubricants. The population has been significantly exposed to VOC released from Rocky Flats. It has been possible to develop preliminary exposure estimates for the following VOCs: carbon tetrachloride, chloroform, and ethylene oxide. See infra at ¶ 29. Additional VOCs which have been implicated in of off-site exposures from Rocky Flats include trichloroethylene, butadiene, benzene, tetrachloroethylene, acrylamide, and vinyl chloride.

           11. Inorganic Substances refer to the metals and non-radioactive inorganic substances that were released to the off-site environment from Rocky Flats. Beryllium, a metal, is the principal Inorganic Substance identified at this time as a substance released from Rocky Flats and resulting in significant off-site exposure among the population. It has been possible to develop preliminary exposure estimates for beryllium exposures. Additional Inorganic Substances released off-site from Rocky Flats include cyanide, chromium, arsenic, nickel, and cadmium.

           12. I have been able to identify various on-site processes which led to releases of hazardous radioactive and non-radioactive substances into the surrounding area and which are capable of producing adverse health effects in the local population living around the facility. These include normal operations, accidents, accelerated operations, experiments, handling of waste and material, fires, waste disposal (including off-site transport and incineration, both partial and complete), and disposal of contaminated material assumed to be safe.

           13. Specific mechanisms of release have been identified:

1. Monitored and unmonitored releases by emissions of gases, particulates and liquids through effluent stacks, pipes, or vents (where unmonitored releases resulted from the absence of monitoring equipment or the failure of existing monitoring equipment);
2. Deliberate releases of radioactive and nonradioactive hazardous substances, including dumping or burning of waste materials;
3. Releases resulting from deliberate and accidental bypass of filtering and monitoring systems;
4. Fugitive emissions associated with pathways other than effluent pipes, stacks or vents, including passage of liquids and gases through leaks, leaks in the normal effluent pathway, gaps in building containments, outdoor industrial operations, and resuspension of hazardous substances located within the plant boundary; [2] and
5. Unmonitored "backdoor" releases such as blowback of air through ventilation systems, operations where building containment was compromised, and sale to the public of accidentally contaminated materials.

           14. Hazardous radioactive and nonradioactive substances that were released from Rocky Flats migrated to the off-site environment by several routes or "pathways." Such pathways are likely to include: 1) air; 2) water; 3) biological (e.g., dispersion by animals and pollen); 4) food (e.g., contamination by deposition onto farmland and use of contaminated irrigation water); and 5) cross-media (e.g., air release to water pathway, water release to air pathway).

           15. It appears that the population was significantly exposed to hazardous substances released from the Rocky Flats facility by means of the air pathway. Once additional information is obtained, it will be possible to calculate more fully exposure estimates based upon the contribution to total dose made via additional exposure pathways.

           16. Significant off-site exposure to plutonium occurred from both the initial airborne releases of this material from Rocky Flats, as well as the resuspension of plutonium particles from soil to air due to natural and mechanical disturbances of the plutonium-contaminated soil following these initial releases (e.g., high wind speeds, storm surges, precipitation, agricultural activities, and ground transportation). Based on the information currently available, it is likely that other radionuclides and Inorganic Substances released from Rocky Flats follow migratory patterns similar to those of plutonium releases, i.e., initial and resuspension release to air pathway.

           17. Significant off-site exposure to VOC releases from Rocky Flats occurred as a result of initial releases to the air pathway resulting from the chronic and nearly continuous emission of these highly volatile substances from the plant.

           18. The following methods can be used to develop estimates of exposure for the population exposed to hazardous substances released from Rocky Flats: [3]

1. Back-calculation from measured ground or water concentrations;
2. Inferences from quantities of hazardous materials consumed at the plant;
3. Measurements of health statistics in the population (epidemiology); and
4. Calculations based on monitored emissions.

           19. Using techniques of scientific estimation and modeling and given such factors as prevailing meteorologic conditions, topography, and particle size and deposition, it is possible to work back from off-site measurements of ground and water contamination to arrive at estimates of the amount of hazardous material released that would be capable of producing the measured amounts of ground or water contamination.

           20. It is also possible to derive estimates of release and exposure by use of materials balance analysis. This method requires little more than an accurate record of inventory quantities of hazardous substances and records of amounts of the material remaining at the end of a production process, followed by a simple subtraction calculation to yield an amount of material unaccounted for and presumptively released to the environment. Engineering calculations, which are based on detailed knowledge of plant operations, processes, and design and include for example an analysis of location and efficiency of valves, filters, ducts, and vents, can be used to refine and supplement a materials balance approach.

           21. Epidemiological analysis or the use of health statistics to identify patterns of disease which are related to exposure among the population from hazardous substances released from Rocky Flats has been employed in a few studies of Rocky Flats. Some of the findings of these epidemiological studies appear to be consistent with significant off-site exposures to hazardous substances released from Rocky Flats.

           22. Dose estimation from calculations based on monitored emissions is not a viable approach at Rocky Flats for the following reasons: 1) contract operators of the facility and/or the Department of Energy conducted only limited on-site monitoring, and at a limited number of escape points over the history of operations at Rocky Flats; 2) some of the data actually recorded have been reported missing; 3) little or no information is available on filter "bypass" or "punchthrough" (events in which air is allowed to pass around or through filters due to human error or deterioration of equipment); and 4) no meaningful contemporaneous off-site environmental monitoring or sampling appear to have existed at the Rocky Flats facility. In short, there are enormous gaps in monitoring data available for dose reconstruction via calculations based on historically monitored emissions.

           23. Based upon my experience in investigating and conducting dose reconstruction under circumstances similar to those presented at Rocky Flats, I am (as would anyone else conducting a dose reconstruction at Rocky Flats) required to rely on inferential analysis, use of indirect measures of release and exposure and scientific modeling. The lack of monitored emission data available at Rocky Flats necessitates such an approach -- one that is scientifically reasonable and valid, and for which there is no alternative.

           24. Each of the other methods of estimating exposure and dose identified in paragraph 18 also must contend with gaps in the data: soil measurements were only sporadically taken and only for certain hazardous substances; inventory records of quantities of materials consumed at the facility are incomplete or missing; and health studies have only been performed to a very limited degree. Therefore, it is necessary to rely on all available methods for estimating dose, in combination, to fill in these gaps whenever possible.

           25. Given information regarding the physical properties of hazardous substances released, the specific mechanisms of release, the pathways of exposure, and additional factors such as meteorological and topographical conditions -- the elements of a dose reconstruction model -- it is possible to develop scientific estimates of dose and exposure for the exposed population. For any member of the exposed population it will be possible to develop a dose estimate given that person's location and duration of residence in a particular exposure zone.

           26. Using the dose reconstruction model it is possible to generate geographical representations of exposure or dose levels received by segments of the population. These representations, which are graphically depicted as lines ringing Rocky Flats and referred to as exposure or dose contours, correspond to average cumulative doses received -- at a minimum -- by the population living within a particular contour, given duration of exposure.

           27. I have derived preliminary exposure/dose contours for two classes of airborne release of hazardous substances from Rocky Flats. These are: (1) plutonium and other airborne particulate exposure, [4] involving both an initial direct exposure and a resuspension exposure; and (2) VOC exposure, resulting from chronic and near-continuous release of these volatile materials.

           28. The airborne plutonium exposure contour was derived from actual plutonium ground measurements and meteorological and particle deposition modeling. Based on preliminary estimates, I find that the exposed population was subjected to an average annual air concentration [5] of plutonium ranging from 0.003 to 0.12 pCi/m³. For example, for a fifteen year period this exposure would correspond to average cumulative doses among the exposed population ranging from 1.3 to 45 rem [6] to the bone; 0.5 to 17 rem to the liver; and 0.33 to 11 rem to the lung.

           29.The airborne VOC or Chronic exposure contour was derived froma relative exposure model based on engineering calculations,materials balance analysis, and meteorological modeling. I have derived preliminary quantitative exposure estimates for a few of the hazardous VOC released off-site from Rocky Flats. For the population living within the Chronic exposure contour that bounds the area for those significantly exposed to airborne VOC, average annual air concentrations have been derived for the following VOC: carbon tetrachloride (0.2 to 3.0 µg/m³); chloroform (0.06 to 1.0 µg/m³); and ethylene oxide (0.5 to 18.0 µg/m³).

           30. For the foregoing reasons, based on principles of dose reconstruction and scientific methods of estimation and modeling, it is possible to define a class of persons who have been significantly exposed to hazardous substances released from Rocky Flats.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: June 15, 1993

Footnotes:

1. National Research Council, Committee on the Biological Effects of Ionizing Radiations (BEIR V), Health Effects of Exposure to Low Levels of Ionizing Radiation 397 (1990).

2. This resuspension mechanism is a major source of off-site plutonium contamination.

3. Direct measurements of human exposure (e.g. blood, urine and tissue analysis) are not typically used to determine a dose for a population, due to the limited number of detection tests available, the unproven reliability of such tests as have been or are being developed, the intrusive nature of some forms of testing and attendant consent problems, and the time and cost associated with conducting such tests. Instead, scientific experts typically rely on indirect measures of human exposure with the aid of computer models to produce a dose estimate for the population.

4. The plutonium exposure contour can be used as an approximate surrogate for the relative exposure contours of other airborne particulates (e.g., uranium, americium, and beryllium) routinely released and randomly dispersed from Rocky Flats. Additional data could facilitate model refinement, particularly with regard to its application to other hazardous substances released from Rocky Flats.

5. Since these air concentration figures are derived from an average over the course of a year, they do not reflect the fact that the highest concentrations of particulates due to resuspension from soil to air occur during a small fraction of the year when high winds promote intense bursts of resuspension activity.

6. "Rem" is a unit of dose commitment, representing the amount of absorbed dose as modified by the degree of distribution within the body over time and the degree of biological effect on particular organs. This dose commitment reflects the dose of ionizing radiation received to date, plus the additional dose received over a lifetime as the plutonium already absorbed into an individual's body continues to deliver radioactive decay products and ionizing radiation to surrounding tissue.