[CPEO-MEF] Rocky Mountain Arsenal Grand Jury Report

[Lenny Siegel <lsiegel@cpeo.org>]

The following is the entire Grand Jury Report on the Spring, 2002
"rediscovery" of an M-74 munition at the Rocky Mountain Arsenal's
"boneyard" area. The Grand Jury appears most interested in getting the
Army and its contractors to work WITH state regulators. It seems less
interested in the specific risk created by the contractor's actions. And
it also shows no interest in pursuing the individuals responsible.

LS

***

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO

1437 Bannock Street

Denver, CO  80202

IN RE: THE STATE GRAND JURY - 2000-2001 TERM (EXTENDED)

(   COURT USE ONLY   (

Case No.:  01CR001

Ctrm: State Grand Jury

STATE GRAND JURY REPORT

	The investigation into the handling of hazardous waste by the United
States Department of the Army and Foster-Wheeler, Inc. at the Rocky
Mountain Arsenal was initiated by the Colorado Attorney General under
authority of an investigatory referral from the Colorado Department of
Public Health and Environment to the Attorney General pursuant to §
25-15-308(2)(a) (attached hereto as Attachment A).  The investigation
was authorized by presiding Judge J. Stephen Phillips and conducted by
the State Grand Jury, 2001-2002 Term (extended).

Based upon our investigation, we, the State Grand Jury, 2001-2002 term
(extended), hereby issue this Report pursuant to C.R.S. § 16-5-205, and
further determine that the following Report and the release thereof are
in the public interest pursuant to C.R.S. § 16-5-205.5(1).  This Report
does not involve allegations of misuse or misapplication of public
funds, allegations of abuse of authority by a public servant, or
allegations of the commission of a class 1, class 2, or class 3 felony
as contemplated by § 16-5-205.5(5)(a), (b), or (d).  The release of this
Report is in the public interest, because the above captioned matter
involves allegations of, and this Report supports findings of,
misfeasance and malfeasance with regard to a governmental function
pursuant to § 16-5-205.5(5)(c) as governmental function is defined by
C.R.S. §  18-1-901(3)(j).

1.	CDPHE Regulatory Background:

	The Rocky Mountain Arsenal ("RMA") was constructed for the manufacture
of military munitions including assembly of different types of munitions
containing chemical nerve agents.  In the early 1980s the facility was
closed and a cleanup program began pursuant to the Comprehensive
Environmental Response Compensation and Liability Act of 1980
("CERCLA"). The cleanup and supervision of activities were to be
conducted by the United States Department of the Army ("the Army") and
the United States Environmental Protection Agency ("EPA") respectively. 
At that time, the Colorado Department of Public Health and Environment
("CDPHE") was given the opportunity to participate in the cleanup for
the limited role of review and comment.  While the CDPHE's role was
primarily to assist the EPA, it perceived that the EPA and the Army were
bypassing the state as to critical decisions concerning the cleanup.  
The CDPHE believed that it had additional regulatory authority that
allowed the CDPHE to have a greater decision-making role in the cleanup
of the RMA pursuant to the state's hazardous waste program authorized
under the federal Resource Conservation Recovery Act ("RCRA"). In 1987,
the state instituted legal action against the Army to halt present and
future violations of the Colorado hazardous Waste act and regulations
authorized under RCRA and to gain greater oversight of the RMA cleanup
process.  In 1989, the United States District Court for the District of
Colorado ruled that RCRA enforcement by the State was not precluded by
CERCLA concerning the RMA cleanup process.  The court found that having
the state actively involved would guarantee and have the constructive
effect of balancing all interests involved, and ensure a thorough
cleanup of the RMA.  Based upon that authority, the CDPHE established
its right to enforce its RCRA authority on the RMA and to oversee any
activity that it perceived to be a threat to the health of the people of
the State of Colorado.

2.	Discovery of Sarin Nerve Agents and Munitions

	On October 16, 2000, Sarin nerve agent and the munition to deploy the
agent were discovered in Section 36 of the RMA, commonly referred to as
the "boneyard".  The "boneyard" was a former parking lot that had been
secured by a perimeter fence and utilized as a storage area for
munitions, scrap metal, dirt and other materials that were located
during the cleanup effort at the RMA.  The nerve agent was contained in
a small spherical M139 armament referred to as a "Chemical Bomblet". 
The Army informed the CDPHE of their intent to detonate the first of
these bomblets out in the open space at the arsenal.

3.	Department of Health Emergency Compliance Order

On October 20, 2000, the CDPHE issued an Emergency Compliance Order
(ECO) pursuant to their oversight authority, prohibiting the detonation,
incineration, destruction, or otherwise treating or disposing of the
Sarin bomblet without authorization of the CDPHE as to the manner and
safety of the proposed open disposal.  In that order, there were several
paragraphs requiring approval from the CDPHE prior to the Army
initiating any excavation, investigation or remediation in the
"boneyard" area of the RMA.  Paragraph 27 of the ECO stated: "The Army
shall notify the Department in writing of any excavation or other
investigatory or remedial activities undertaken pursuant to any plan or
requirement of this Order a minimum of seventy-two (72) hours prior to
beginning excavation or required activity."  The order was directed to
the Army and to its general contractor for the cleanup operation, Foster-Wheeler.

4.	Amended Emergency Compliance Order and Requirement for Submission of
Safety Plan

	Following issuance of the ECO, the Army, Foster-Wheeler, the EPA, the
Tri-County Health Department and the CDPHE held regular meetings to
discuss the ECO and the future of the "boneyard" and disposal of the
Sarin nerve agent.  As a result of these meetings, the Army and
Foster-Wheeler were allowed to conduct limited excavation of the
boneyard.  During this limited excavation, more Sarin bomblets were
discovered.  Based upon these  discoveries, the CDPHE issued an
amendment to its original ECO on November 10, 2000.  The amendment took
a stronger position as to activity in the "boneyard".  The amendment
required the Army to submit a detailed safety plan for CDPHE approval
concerning subsequent excavation activity in the "boneyard".  This plan
would address how and when the Army intended to go through the
"boneyard" in an effort to avert any unplanned release of the Sarin
nerve agent.

The plan would specifically address two issues: how to safely destroy
the six Sarin bomblets already discovered in the "boneyard", and how to
safely go through the rest of the debris in the "boneyard."  Paragraph
16 of the amendment specifically stated:

"By November 30, 2000, the Army shall submit a detailed plan for
Department approval for thoroughly investigating the occurrence of
military munitions in the Boneyard area.  The plan shall include
schedules for implementation, and shall include provisions for surface
and subsurface investigation, including use of geophysical techniques. 
The plan shall also include aerial photographs, regarding use of the
Boneyard area or practices for disposal of wastes, equipment, scrap
materials or munitions.  Based upon a review of the historical
information, identify all locations in the Boneyard area where wastes,
scrap materials, equipment or munitions were or may have been disposed."
(emphasis added).

Paragraph 25 of the amendment repeated verbatim the seventy-two hour
notice requirement of the original ECO.  Finally, Paragraph 22, titled
Implementation of Work to be Performed, stated: "No plan submitted for
Department approval under this Amendment may be implemented unless or
until written approval is received by the Department."  The plan,
therefore, was required to have Army and CDPHE approval prior to
implementation.  Army approval further required approval from the
Department of Defense Explosive Safety Board ("DESB") as to any plan.

The CDPHE's position, as indicated by the amendments, was that any
activity in the "boneyard" area needed full prior approval and
implementation of the safety plan.   Once the plan was approved, the
Army and Foster-Wheeler could freely excavate the "boneyard" pursuant to
the approved plan. 

	In February, 2001, the Army submitted a draft Chemical Site Safety
Submission detailing how it intended to investigate the remainder of the
"boneyard".  The CDPHE made comments and met with the Army to discuss
them.  From these comments, the Army re-drafted the submission and it
was forwarded to the DESB and the CDPHE.  Throughout several iterations
of the plan, the Army and Foster-Wheeler kept apprised of the status of
its approval or non-approval.  The final plan was orally approved by the
CDPHE on May 2, 2001 and final written approval followed on May 4, 2001. 

5.	The Initial M-74 Discovery

	On April 9, 2001, an Unexploded Ordnance (UXO) crew was directed by Tom
Young (Foster-Wheeler Project Manager for the "boneyard" cleanup) and
Bud Eason (Foster-Wheeler's UXO Site Supervisor/Project Manager
concerning the RMA cleanup) to go through the debris pile outside of a
Large Area Maintenance Shelter ("LAMS").  The LAMS is a tent that had
been built within the "boneyard" to contain any potential air emissions
resulting for the handling of Sarin bomblet.  Both the LAMS and the
debris pile were in the "boneyard" and subject to the ECO and its First
Amendment.  The crew's understanding was that they were to begin sifting
through the debris pile and determine what, if any, ordnance or other
material was located within the debris pile.  According to the Army and
Foster-Wheeler, this was a "housecleaning" effort to clear an area
outside of the LAMS.  No notice was given to the CDPHE of this
"housecleaning" activity and the Chemical Site Safety Plan had not yet
been approved by the CDPHE or the DESB.  The crew included, among
others, Mark Fletcher, Noah Sarvis, Ronnie Johnson, Mark Dollar, Richard
Larson, and Joseph Jennen.

On April 9, 2001, Joseph Jennen and Ronnie Johnson discovered an M-74
munition within a crushed 55-gallon drum in the debris pile.  Pursuant
to existing protocol, the M-74 was logged into the Quality Control Log
kept by the Health and Safety Supervisor.  Visual inspection of the
munition did not reveal if it contained a white phosphorous "cup"
containing reactive material.1 The ordnance was then photographed and
x-rayed and the determination was reached that the ordnance contained
the reactive white phosphorous cup. This information was related to Mark
Fletcher, who was the health and safety UXO representative and then to
Tom Young.  Tom Young then went to the Remediation Venture Office
("RVO") of the Army, and when he returned, Mr. Young ordered that the
munition be placed back where it had been found.  His order was carried
out.  The RMA's Standard protocol for handling such active munitions
when discovered, however, had been and was to place them into a secure
magazine for later detonation.  Placing the munition back where it was
located was in contradiction of Foster-Wheeler and Army protocol for
such anomalies. 

	Immediately after the replacement of the M-74 munition, all excavation
in the debris pile and the rest of the "boneyard" was ordered halted by
Foster-Wheeler and the Army.  Joseph Jennen remembers being told that
Foster-Wheeler not having permission to begin work on the debris pile
was the reason for the work stoppage.

6.	The M-74 "Re-discovery"

	On May 8, 2001, following approval by the CDPHE of the safety plan for
work to be conducted in the "boneyard", Bud Eason approached Noah Sarvis
at a regularly scheduled safety briefing and told Mr. Sarvis that he was
to "find" the M-74 ordnance at 2:30 p.m.  At 2:37 p.m., Bud Eason
radioed Noah Sarvis and reminded him that he was supposed to have found
the ordnance at 2:30.  Noah Sarvis then went and retrieved the M-74 and
it was logged as being found on that day.  Others working in the area
overheard this radio contact between Bud Eason and Noah Sarvis.  The
Health and Safety Log for May 8, 2001, confirms the M-74 was
"discovered" at 2:48 p.m.

	The M-74 was then transported to a storage magazine and subsequently
detonated with the permission of the CDPHE pursuant to the standard
protocol for active anomalies.

7.	Reporting of the M-74 to CDPHE

	Subsequent to the approval of the Chemical Site Safety Submission, the
CDPHE began holding weekly meetings with representatives of
Foster-Wheeler and the Army concerning the "boneyard" cleanup. On May 8,
2001, a CDPHE Project Manager, Barbara Neighbors, attended the first of
these weekly meetings.  At that meeting, she was provided with handouts
concerning what had been found in the "boneyard" since the Submission's
approval.  One of those handouts listed the M-74 round as having being
found during the week of May 7, 2001. No mention of the prior April 9
discovery was made.  Tom Young of Foster-Wheeler then initialed the
weekly log report in front of Ms. Neighbors indicating the discovery on
May 7.  Notations on that report indicate that Ms. Neighbors was told
that the munition was magazined, contained a white phosphorous cup, and
was "found yesterday".  Based upon Tom Young signing and dating the
handout, Ms. Neighbors believed that the M-74 was discovered on May 7, 2001.

On or around May 11, 2001, Barbara Neighbors received an anonymous phone
call informing the CDPHE that the Army had discovered a bomb in the
"boneyard" in April, 2001.  CDPHE immediately called Charlie Scharmann
and discussed the concerns they had with the anonymous information. 
Charlie Scharmann was asked to respond as to whether the M-74 had been
found one month earlier than reported.  Charlie Scharmann apologized and
stated that the munition had been found in April of 2001.  During two
subsequent meetings with the CDPHE, the Army verified that it had, in
fact, found the M-74 round in April.  At those meetings, no explanation
was offered for the information noted on the report,  Tom Young's
certification of the report, or why the M-74 had been reported as being
found on May 7.

	The CDPHE proceeded with an investigation of the incident that included
a document review and interviews of personnel.  The CDPHE confirmed
through health and safety logs that the M-74 round had been found,
inspected, x-rayed, and reported to the Army on April 9, 2001.  The logs
indicate that the crew was then instructed to return the round to its
discovery location and to cease all work in the "boneyard".  Work did
not recommence in the "boneyard" area until May 7, 2001, following
approval of the Chemical Site Safety Submission.

In an interview with Jim Green, a project manager from the Army, Mr.
Green indicated that the basis for the deception was concerns for how
the Army would be perceived for having engaged in activity in the
"boneyard" without proper authority.  He related that the Army did not
believe that it would look very proper to have found the M-74 when they
did not have approval from the DESB or CDPHE on the plan.  Mr. Green
identified Tom Young as having prepared the weekly report for the CDPHE
on May 8.  When asked how the report could have been prepared with a
misrepresentation as to when the ordnance was found, Mr. Green explained
that it was not a big deal; it was just a perception issue.

8.	Findings of the State Grand Jury

	A.	Specific Findings for Issuance of This Report

		I.	The Boneyard Remediation of the RMA is of Public Interest

	The existence of live or reactive munitions in any area containing
Sarin nerve agents is potentially life threatening to the citizens of
Colorado.  The CDPHE, as the representative of the citizens of this
state, therefore, has a direct and integral interest in controlling or
managing the remediation of the "boneyard" area of the RMA in its
efforts to ensure public health and safety.

Sarin is a quick acting, lethal nerve agent.  Exposure to low
concentrations of Sarin causes over-stimulation of certain organs,
glands to secrete, airways to restrict, intestines to cramp, muscles to
continue to contract or twitch involuntarily, and pupils to dilate to
become pinpoint.  Higher levels of exposure may severely impair
respiratory functions and lead to death.  The Emergency First Aid
Treatment Guide for Sarin published by the EPA states that "death may
occur within 1-10 minutes of inhalation exposure to a minute amount of
Sarin".  Even the Army's Chemical Biological Defense Command recognizes
that exposure to Sarin is potentially life threatening.

	

II.	The ECO and its First Amendment were in Force and Effect on April 9, 2001.

	The CDPHE has RCRA enforcement authority over the remediation of the
entire RMA.  Its authority is based in statute and has been upheld by
the United States District Court.  By issuance of their ECO on October
20, 2000, and its First Amendment on November 10, 2000, the Army and
Foster-Wheeler were required to have in place a Chemical Site Safety
Submission which had been formally accepted by the CDPHE in writing
prior to any remediation of the "boneyard" area.  No Chemical Site
Safety Submission, or approval of the same by the CDPHE, was in place on
April 9, 2001.  As such, any activity in the "boneyard" had to have
CDPHE's approval following 72-hour notice from the Army and
Foster-Wheeler.  No notice was given prior to the remediation efforts
and during those efforts a reactive munition was discovered.

III.	The Army and Foster-Wheeler Violated the ECO and its First Amendment

	The Army consists of government employees legally authorized to
undertake the cleanup of the RMA on behalf of the government. 
Foster-Wheeler activities were at the direction of the Army,
participating as an advisor, consultant, or otherwise in that cleanup
effort.  As such, the Army and Foster-Wheeler were and are public
servants undertaking a governmental function.

	By entering the boneyard for "housecleaning", the Army and
Foster-Wheeler violated the provisions of the ECO and its First
Amendment.  We find, therefore, that entrance into the boneyard without
prior approval was unlawful and therefore constitutes malfeasance by the
Army and Foster-Wheeler.

	Upon location of a potentially reactive M-74 munition, the decision by
the Army and Foster-Wheeler to return it to the boneyard area was an
improper performance of an act entrusted to them.  To place a
potentially explosive material back into an area containing a deadly
nerve agent, therefore, constitutes misfeasance by the Army and Foster-Wheeler.

	Upon "rediscovery" of the M-74, the Army and Foster-Wheeler
intentionally deceived the CDPHE as to its actual discovery date . 
Again, this was the improper performance of an act entrusted to them to
report.  The mis-reporting of its discovery and cover up of the original
discovery, therefore, constitute misfeasance by the Army and Foster-Wheeler.

	B.	Discussion of Findings of the State Grand Jury

	The State Grand Jury finds that the nature and manner of the
remediation work being undertaken at the RMA are of great concern to the
People of the State of Colorado.  Due to the proximity of potentially
live ordnance and toxic chemical ordnance, the potential consequences of
error in the implementation of this remediation in the "boneyard" takes
on heightened import.  The CDPHE has legal authority to oversee the
cleanup of the RMA, the People of the State of Colorado have an
important interest in the proper implementation of all remedial measures
effecting the People's health and safety.  Accordingly, the State Grand
Jury finds that the "boneyard" area is subject to state and local
requirements respecting the treatment and disposal of hazardous waste. 
Furthermore, the ECO and its First Amendment were in full force and
effect and required compliance by the Army and Foster-Wheeler as its
general contractor.  Therefore, the Army and Foster-Wheeler's compliance
with these requirements are a "governmental function" as defined by §
18-1-901(3)(j), C.R.S.

	The State Grand Jury also finds that the working relationship between
the Army and the State of Colorado has been, at best, tenuous concerning
the cleanup of RMA.  Such a relationship should not have existed and
cannot continue to exist if the People of the State of Colorado are to
experience the thorough and safe cleanup of the RMA.  It is the People
of the State of Colorado who will ultimately pay the price for any
incomplete remediation of this site, recognized by the federal
government as a priority contaminated area containing hazardous and
toxic chemicals.  The only way to ensure proper cleanup is for the Army
to work cooperatively, honestly and actively with the state.

The State Grand Jury also finds that the ECO and its First Amendment
required the Army to give notice of any "housekeeping" remediation of
the "boneyard" area and without notice of such activity, no remediation
work should have taken place until there was in place a Chemical Site
Safety Submission approved by the DESB and the CDPHE.  Clearly, this
Submission was not approved until at least May 5, 2001.  As such, the
Army was required to give notice and receive approval to be in the
"boneyard" for the debris pile screening that was undertaken in April of
2001 when the M-74 round was discovered.  The Army failed to do so and
was, therefore, without authorization to act as it did.  The State Grand
Jury finds that the remediation efforts were motivated by a desire to
provide work for its crew while awaiting approval from the DESB and the
CDPHE.  Such a motivation did not justify actively violating the CDPHE
order and potentially endangering the citizens of this state.

The State Grand Jury also finds that the representations made to the
CDPHE concerning the date of discovery of the M-74 round in the
"boneyard" were material and false as contemplated by C.R.S. §
25-15-310(c).  They were made in order to avoid any inquiry into the
unauthorized activities in April.  The State Grand Jury specifically
finds that such a motivation does not authorize active violation of the
statute, and that the making of these representations was "knowing" by
persons in positions of authority for both the Army and Foster-Wheeler.

The State Grand Jury further finds that the placing of the M-74 back
into the "boneyard" area for later "discovery" in violation of protocol
was ill-conceived, misguided, and negligent. The potential danger from
this action was debatable, but that is only one issue.  The proper
action would have been to inform the CDPHE of its error in beginning
work without authorization, to stop the work, and to secure the item
safely until such time as the item could be properly managed.  Replacing
the M-74, "re-discovering" it and certifying to the CDPHE the later
discovery date was deceitful and unnecessary.

The State Grand Jury undertook this investigation to look into potential
criminal Violations of the Colorado Hazardous Waste Act, § 25-15-310,
C.R.S., and Attempt to Influence Public Servant, § 18-8-306, C.R.S.  In
spite of a thorough investigation that produced these findings, the
State Grand Jury has not identified and, with further investigation,
could not identify a particular individual or set of individuals who
made the ultimate decisions to deceive the CDPHE.  Several individuals
within the hierarchy of Foster-Wheeler and the Army apparently
contributed to or participated in, directly or indirectly, the ultimate
deception.  The State Grand Jury cannot base criminal culpability on
supposition.  Therefore, we find that probable cause has not been
established as to the identity of any particular culpable party and
choose not to return an indictment.  There is, however, more that this
State Grand Jury can and must do based upon these findings.

We are without authorization to direct the activities of the Army or its
contractors and do not presume to so do.  It is the intent of the State
Grand Jury that the findings and recommendations contained in this
Report will have the salutary effect of improving the working
relationship between the state and the Army as the cleanup of the RMA
continues.  Absent a relationship based upon truth, trust and openness,
the remediation process cannot be completed in a manner that the
citizens of Colorado deserve and expect.  It is not inappropriate for
the citizens of Colorado, as potential victims of the toxic inheritance
placed here by the Army, to have representative voice in its cleanup. 
For that voice to be heard and to have effect, there has to be honest
and open communication between the Army and the state.

The Army has been charged by our federal government with the remediation
of the RMA and it has chosen Foster-Wheeler as the general contractor to
carry out this multi-million dollar cleanup effort.  Pursuant to
Colorado law, these entities are "public servants" engaged in a
"governmental function."  The CDPHE is the independent advocate for the
state's interest in the cleanup effort.  Legally authorized to place
restrictions on the cleanup effort and to ensure safety, the CDPHE's
efforts, to date, have been severely hindered by the noted lack of
cooperation and full disclosure.  The State of Colorado sought and
obtained validation of its regulatory authority at the RMA through the
federal courts.  To have that authority subsequently flaunted when it
concerns deadly nerve agents is inexcusable.  The ECO and its First
Amendment are clear.  Utilizing a complex bureaucracy to thwart those
mandates for the purpose of providing work for idle crews cannot be
tolerated.  By this report, we formally voice our disapproval and hope
that by bringing the activities of the Army and Foster-Wheeler to light,
a new era of openness, honesty, and cooperation will begin.

C.	Formal Recommendations of the State Grand Jury

It is clear from the activities of the Army and Foster-Wheeler, that the
relationship between them and the State of Colorado which existed during
the investigated time period cannot continue.  Corrective actions must
be taken to clarify any ambiguity in the State's authority in the
cleanup efforts at the RMA.  To that end, we would recommend the following:

1.	That the Army and Foster-Wheeler acknowledge that their activities
concerning the debris "housekeeping" and the M-74 were in error and in
violation of the ECO and its First Amendment;

2.	That the Army and Foster-Wheeler acknowledge the authority of the
CDPHE to oversee and regulate the cleanup as an active and equal partner
as contemplated by the United States District Court's ruling and the
laws of Colorado and the United States.

3.	That, from this point forward, the Army and Foster-Wheeler agree to
respect and comply with all lawful orders from the CDPHE through a
formal or informal memorandum of understanding between the parties in an
effort to further cooperation and mutual trust. 

Foreperson Certification

	I, Shari Nolan, the Foreperson of the 2000-2001 Statewide Grand Jury,
in accordance with § 16-5-205.5(4)(b), do hereby certify that:

	(I) The certification of public interest by the grand jury complies
with the provisions of § 16-5-205.5(5)(c);  and

	(II) The report is based on facts revealed in the course of the grand
jury investigation and is supported by a preponderance of the evidence;  and

	(III) The report does not contain material the sole effect of which is
to ridicule or abuse a person or business or to subject such person or
business to public disgrace or embarrassment;  and

	(IV) The report does not contain material that is personal in nature
that does not relate to any lawful inquiry;  and

	(V) No confidentiality agreement will be violated and the identity of
no confidential informant will be disclosed in making such grand jury
report public;  and

	(VI) The filing of such report as a public record does not prejudice
the fair consideration of a criminal matter.

	 I further certify that the decision to issue this report was arrived
after deliberation and with the assent and agreement by at least nine
members of the 2000-2001 Statewide Grand Jury.

							__________________________________

							Shari Nolan

	Subscribed and sworn to before me in the County of Denver, State of
Colorado, this ______ day of ______________, 2000.

							__________________________________

							Notary Public

My commission expires:

____________________

Prosecutor Certification

	I, Brian Whitney, prosecuting attorney in the above matter, in
accordance with § 16-5-205.5(4)(b), do hereby certify that:

(I) The certification of public interest by the grand jury complies with
the provisions of § 16-5-205.5(5)(c);  and

	(II) The report is based on facts revealed in the course of the grand
jury investigation and is supported by a preponderance of the evidence;  and

	(III) The report does not contain material the sole effect of which is
to ridicule or abuse a person or business or to subject such person or
business to public disgrace or embarrassment;  and

	(IV) The report does not contain material that is personal in nature
that does not relate to any lawful inquiry;  and

	(V) No confidentiality agreement will be violated and the identity of
no confidential informant will be disclosed in making such grand jury
report public;  and

	(VI) The filing of such report as a public record does not prejudice
the fair consideration of a criminal matter.

							__________________________________

							Brian Whitney

	Subscribed and sworn to before me in the County of Denver, State of
Colorado, this ______ day of ______________, 2000.

							__________________________________

							Notary Public

My commission expires:

____________________

1 	White phosphorous reacts upon contact with air by burning at a high
temperature.  The existence of the "cup" would indicate a potential
incendiary reaction if the white phosphorous was to come into contact
with air.

_________________________



-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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