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Tuesday, June 13, 2006  
Appeals court hears arguments on proposed biodefense lab

By: Scott Lindlaw
Published In: AP, Associated Press

SAN FRANCISCO - A federal appeals court judge said Tuesday she found it "troublesome" that the Bush administration wants to open a lab for testing lethal agents including HIV, plague and anthrax in the densely populated San Francisco Bay Area.

But a U.S. Department of Justice lawyer told the 9th U.S. Circuit Court of Appeals that the administration had thoroughly researched its plans for a biodefense lab at the Lawrence Livermore National Laboratory and concluded there was little risk of a disaster.

If pathogens were to seep from the proposed lab and reach the public, they would have dispersed into such low concentrations they would be unlikely to injure anyone, Justice Department attorney Todd Aagaard said.

A lawyer for the lab's opponents sharply disagreed, saying even a small release could kill thousands.

The government also failed to consider the possibility that a plane or truck could be deliberately crashed into the site 50 miles east of San Francisco, said Stephan Volker, the lab opponents' lead attorney.

Instead, the administration used "a one-size-fits-all scenario, borrowed from another agency" when it studied the possible risks, he told the judges.

According to Volker, that scenario involved a lab worker failing to properly screw on the top of a centrifuge containing the biological agent Q fever. And it hypothesized that all the Q fever would twice pass through high-technology filters - what Volker called "the killer" assumption, because those so-called HEPA filters are highly prone to failure. In a fire they could become disabled by sprinklers, Volker said.

The Bush adminstration has been preparing the biodefense lab for years, and said this week it plans to open the facility by August. But local residents have been fighting it in the courts. A lower federal court said in September 2004 that it could proceed, and the opponents appealed. The appeals court did not rule on Tuesday.

Volker said his clients want a new, thorough environmental assessment report that would supplant the one the Department of Energy conducted in 2002, or an even broader environmental impact review.

The Bush administration says the facility - to be jointly used by the Departments of Energy and Homeland Security - is vital to national security.

The facility "will significantly improve the nation's ability to detect and respond to the threat of terrorism using biological agents," the Department of Energy said in its court brief. A court order blocking it "would directly and adversely impact the national security," the administration said.

The facility would test airborne agents, which could also include hantavirus, influenza, hepatitis, Q fever, brucellis, herpes and salmonella, among others, on live animals.

The opponents have several concerns about the project, and they want to see the government reconsider it.

It sits in a region under which several faults lurk, and the lawsuit warns an earthquake could trigger the release of potentially deadly agents in the densely populated East Bay region near San Francisco. Some 7 million people live in the broader bay area.

The Energy Department says that in 2002 it "thoroughly evaluated" the potential impacts of an earthquake, accident or attack on the site, and it found those fears were unwarranted.

"The department's analysis concluded that such a release was highly unlikely and that, if a release occurred, it would not pose a danger to the public," the agency said in its court filing.

Because of its own findings, the department concluded a more sweeping environmental impact review was not required under the National Environmental Policy Act.

Chief Judge Mary Schroeder questioned the wisdom of locating the facility in the Bay Area, a region where some 7 million people live.

"I don't see in the analysis any discussion anywhere of what is the most troublesome thing," she told Aagaard. "this is being built in a very highly populated area of northern California." New Mexico, where a similar facility was contemplated, has a much lower population, she said.

Aagaard replied that the population-density question was taken into account in the government's "catastrophic release scenario." The most dangerous pathogens are not "durable" or "dangerous," and thus are unlikely to hurt people, he said.

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