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Tuesday, October 17, 2006  
Ruling stalls biodefense lab in Livermore

By: Ian Hoffman
Published In: San Jose Mercury News and other print outlets


The defense arm of the U.S. Department of Energy cannot open a new biodefense research facility at Lawrence Livermore nuclear weapons laboratory until the agency

considers the risk and effects of a terrorist attack, a federal appeals court ruled Monday.

The ruling by a panel of the 9th U.S. Circuit Court of Appeals is likely to postpone by at least several months the start of research at the new lab on potential bioterror

germs that cause anthrax, plague, Q fever and other lethal or disabling diseases.

Extending an earlier ruling that barred expanded storage of spent nuclear fuel at the nuclear power station, the three-judge panel said the environmental study prepared by

the Energy Department's National Nuclear Security Administration was ``inadequate'' for failing to consider the threat of terrorist attack.

Federal and lab attorneys were studying the opinion Monday afternoon ``and the options available to the department,'' lab spokesman Steve Wampler said.

Federal officials have argued since 2002 that the new lab's research is critical to national security and after several delays had planned on starting work as early as


Critics of the new biosafety level 3 lab at Livermore called the ruling a clear victory, but the three-judge panel also rejected all other arguments against the lab's opening.

Led by 9th Circuit Chief Judge Mary M. Schroeder, the panel waved aside complaints that the federal government never seriously considered it problematic to build a lab

for handling deadly pathogens close to active earthquake faults.

The failure to look at terrorist attacks was another matter. In June, the Ninth Circuit ruled that the Nuclear Regulatory Commission wrongly failed to consider the

potential effect of terrorist attacks when proposing to open a new storage pond for spent nuclear fuel at Diablo Canyon power station. PG&E is appealing that decision to

the U.S. Supreme Court.

In the Livermore case, the judges ordered the Energy Department to ``consider whether the threat of terrorist activity necessitates the preparation'' of a full-blown

environmental impact study.

Such a study would require multiple public hearings and probably take at least a year.

``I think if they really take a hard look at the environmental impacts and the terrorist risk to this facility, they will have to do an environmental impact study, which will

push the opening to at least a year from now, if they choose to open it at all,'' said Loulena Miles, legal director for Tri-Valley CAREs, a Livermore-based lab watchdog

group, one of two that sued to halt work on the new biodefense lab.

If the Energy Department chooses instead to add an analysis of terrorist risk to its more modest environmental assessment, that could take a few months. Federal officials

could argue that some or all of the added terrorist-risk assessment should be classified, limiting public review and challenge.

The appeals court ruling was issued in unpublished form, which means its observations about terrorist risk at a nuclear power plant and Livermore's biodefense lab do

not necessarily apply to a broad array of federal actions.

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