Citizen's Watch

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Groups Seek Court Injunction to Bar Use of Biased NIF Review

by Christopher Paine and Marylia Kelley
from Tri-Valley CAREs' February 2001 newsletter, Citizen's Watch

Tri-Valley CAREs and the Natural Resources Defense Council (NRDC) will file a motion in early February in the Federal Court for the District of Columbia to bar the Department of Energy from using a biased August 2000 "Rebaseline Validation Review" of the controversial National Ignition Facility (NIF) mega-laser.

Our motion for preliminary injunction, if granted, will prevent DOE from employing what we believe is an illegally-prepared Review to garner more public and Congressional support for the controversial laser fusion project.

The DOE has relied on the tainted "Rebaseline" to assert to Congress that it has gained control over the NIF's technical and budget problems when, in truth, it has not. Thus, this motion is particularly important. If we prevail, DOE could be forced to go back to "square one" and prepare a more complete and accurate assessment of the NIF program. It has long been our view that Congress would likely cancel NIF if it understood the program's true budget costs, technical snafus and nuke proliferation risks.

Additionally, the motion by NRDC and Tri-Valley CAREs seeks to prevent DOE from forming any other advisory committees concerning the NIF that do not fully comply with the public notice, openness and balance requirements of the Federal Advisory Committee Act (FACA).

The two groups are represented by Meyer & Glitzenstein, a Washington, D.C. law firm with a record of successfully litigating FACA violations committed by DOE and other federal agencies. "The violations involved in this case are blatant, and all citizens concerned about the manipulation of federal agencies for private ends should welcome the action my clients are taking," said the plaintiffs' attorney, Howard Crystal.

The motion for preliminary injunction is part of our groups' ongoing lawsuit against DOE alleging a pattern of FACA violations in connection with the NIF project dating back to at least 1996. (See also the Nov. 2000 Citizen's Watch.) In fact, last year's Review, chaired by DOE officials Kathleen Carlson and Daniel Lehman, failed to meet any of FACA's requirements. (See box, below.)

Without any public notice or participation, some 38 committee members - including numerous paid consultants to DOE's Livermore Laboratory - met in secret at the Lab from August 7-11, 2000 and reviewed the NIF construction project in support of the DOE Secretary's "certification" of the new "baseline" cost and schedule for the NIF, which DOE delivered to Congress on September 15, 2000.

DOE's press release of that date asserted that "an independent technical review of the project, known as the Carlson-Lehman Review, had concluded that the NIF project can be completed successfully using current technology within the total cost and schedule defined in the revised baseline."

Tri-Valley CAREs and NRDC filed the lawsuit after DOE refused to withdraw its public characterization of the NIF Rebaseline Review as "independent," and to inform the Congress that the Review had not been conducted in compliance with FACA.

Among the numerous FACA violations cited in the current motion, perhaps the most damaging to the integrity of the public policy process was the stacking of the Review with paid consultants and advisers to Livermore Lab and the NIF Project - creating the very kind of biased panel that FACA was expressly enacted to prevent.

The two groups have identified eleven members of the Rebaseline Committee with serious financial or career conflicts of interest, "and seven of them had individual consulting contracts with Livermore in areas directly related to the NIF project," according to an affidavit filed by NRDC senior researcher, Chris Paine. For example, in one critical area of the review - the evaluation of the NIF's large optical components - all four members of the "Large Optics" subcommittee had "clear biases in favor of NIF," Paine explained.

Specifically, the subcommittee chairman, Michel Andre, a senior scientist in the French Megajoule laser project has extensive contractual relations and engages in many joint efforts with the NIF program. Were he to be critical of NIF, and its optics component, his own program and career would have been adversely affected. Two other subcommittee members, John Emmett and E. Perry Wallerstein, are former senior laser program officials at Livermore Lab - and long-standing paid consultants to the Lab as well. The fourth member of the subcommittee, Dr. Michelle Shinn, works at DOE's Thomas Jefferson Laboratory in Virginia, whose Director, Dr. Hermann Grunder, until recently chaired Livermore's NIF Programs Review Committee, one of the bodies found most responsible for failing to exert adequate oversight of the project.

Two other subcommittees of the Rebaseline Committee - the "Line Replaceable Units" and "Assembly, Installation, and Commissioning" panels - were also chaired by employees of Dr. Grunder at the time of their participation in the NIF Rebaseline Review. Each of these subpanels also included a member - Drs. Robert McCrory and Steve Loucks, respectively - from the University of Rochester's Laboratory for Laser Energetics, a major Livermore subcontractor and scientific collaborator on the NIF Project.

Documents obtained by Tri-Valley CAREs under the California Public Records Act reveal that McCrory and Loucks are also signatories on Livermore Lab NIF subcontracts with the University of Rochester worth millions of dollars. According to an affidavit filed in support of the motion by the organization's executive director, Marylia Kelley, the group has in its possession 47 records, including NIF subcontracts, contract modifications, schedules and sole-source awards, that were signed by McCrory and Loucks or show them as managers or executors for the contracts.

McCrory has also been a paid individual consultant to the Lab Director's Office and the Lab's NIF Program Directorate since 1996, and, according to copies of contracts NRDC recently acquired under the California Public Records Act, entered into a new contract to consult on the NIF only weeks after his service on the Rebaseline Committee.

The panel on NIF assembly also included another longtime paid private consultant to Livermore, Dr. Damon Giovanielli, who had served only a few months earlier as the chair of the NIF Project's own "Target Physics Program Review Committee," which had concluded that "NIF should be completed to its full 192-beam configuration."

According to the declarations put before the court by Paine and Kelley, other members of the Rebaseline Committee had similar conflicts. Dr. John Peoples and James Renfro, were under contract with the Livermore lab to provide consulting services at the time of the Review, and Eugene Desaulniers had been a paid consultant to the NIF project as recently as Oct. 1998. William Barletta, of DOE's Lawrence Berkeley Lab, had previously been tapped by NIF management to promote the project in Congressional meetings.

In short, the DOE Rebaseline Committee's Review of NIF is the epitome of everything that the Federal Advisory Committee Act was designed to prevent - a hasty, biased and cooked-to-order review, conducted in secret by agency officials and insiders who stood to benefit from the very recommendations they were being called upon to make.

Congress enacted the Federal Advisory Committee Act (FACA) in 1972 to control wasteful expenditures and open to public scrutiny the ways in which government agencies obtain advice from private individuals. Prior to FACA , advisory committees had become convenient nesting places for special interests seeking to influence federal agency actions for their own ends.

FACA applies to agencies when they establish or utilize a group that includes at least one non-federal employee to provide collective advice or recommendations to the agency. To legally obtain such advice, an agency must, among other requirements: prepare a charter detailing the committee's objectives, duties, costs, etc.; publish a notice in the Federal Register that describes the need and purpose for the advisory committee and includes "the agency's plan to attain fairly balanced membership"; and ensure that the resulting committee is "balanced in terms of the points of view represented" and is not "inappropriately influenced by the appointing authority or any special interest."

Once the committee is formed, FACA provides public notice and participation requirements, and specifies that the advisory committee must hold open meetings and make documents that it reviewed or produced available to the public.

The Department of Energy's NIF "Rebaseline Validation Review" Committee failed to comply on all counts.

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by Marylia Kelley
from Tri-Valley CAREs' February 2001 newsletter, Citizen's Watch

* Help for Nuclear Workers *

In Dec., Clinton signed an executive order mandating that three federal agencies, the Department of Energy (DOE), the Labor Dept. and Health and Human Services, work together to aid some of the U.S. nuclear workers killed or made ill due to on the job exposures. The compensation program covers illnesses due to radiation, beryllium and silica dust, with a promise to look at other illnesses later.

While the government insists workers will not face an undue burden of proof in documenting exposures, there are major problems anticipated with records that are inadequate, missing or simply never kept. A qualifying worker, or surviving spouse, may receive up to $150,000 or medical expenses, if they are greater.

More recently, in Jan., lawmakers have proposed amendments that include provisions for lost wages and a process for appealing a denial of benefits. There is as yet no move to include community members in the program.

Livermore Lab is among the facilities listed where workers may have been made ill or killed by weapons work. In addition to numerous known radiation exposures at Livermore, there have been workers who have contracted berylliosis, including at least one fatality. The DOE hotline is (877) 447-9456.

* Lab Pollution Costs Estimated *

The price tag for dealing with contamination from past nuclear weapons work at Livermore Lab is around $540 million, according to the long-term environmental stewardship report that DOE sent to Congress last month.

For that, you get actual cleanup of a number of polluted areas at Livermore Lab but only monitoring, or "babysitting," for way too many others. Livermore Lab has nearly 175 release sites listed in the report as requiring long-term care. Clearly, funding is needed to improve cleanup technologies and to get the job done. Neither sick workers nor a sick environment is morally acceptable.

* The Year in Review *

According to unusual occurrence reports filed on Livermore Lab last year, an employee in the hazardous waste program vented "a light gray cloud" of toxic gas into the air. The material had been stored in an inadequate container, according to the report.

In two separate incidents, plutonium gloveboxes at the Lab were found to contain holes, in one case because acid had eaten it away and in the other because an ad hoc opening was apparently created in order to attach a utility hose to the box. Another accident last year involved a release of cyanide into the Livermore City sewage plant.

* More Money for Weapons *

According to a new State Dept. study, the U.S. is spending more money on military weapons than during its Cold War past. (And more money on nuclear weapons development, as well, we would add.) The U.S. spends one-third of all weapons monies spent worldwide each year, says the report. In 1997, the U.S. spent $276 billion on arms, China spent $75 billion, with Russia and France tied for third at $42 billion apiece.

Let's see, we know that workers and the environment have suffered unspeakable harms, that more accidents happen in the DOE nuclear weapons complex every day, that the government doesn't want to spend the money it will take to really clean it up and that more and more of our tax dollars are going to make more and more weapons. What's wrong with this picture? Certainly, the government. But, don't just get mad, get organized. Help us create positive change in the world.

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by Inga Olson
from Tri-Valley CAREs' February 2001 newsletter, Citizen's Watch

On Sat., Jan. 27, about 15 Tri- Valley CAREs' staff, board and community members spent the day learning about diversity with Cliff Jones and Kathleen Herron from Technical Assistance for Community Services of Portland, Oregon. Cliff and Kathleen specialize in providing trainings to community-based groups.

We started the session by each talking about several items, including why we felt proud of our activities with Tri-Valley CAREs. People's stories were very personal, which helped us to get to know each other on a deeper level, and to learn more about the organization.

Several of us commented to each other how nice it was to not be "talked at," but to have plenty of time for expressing our own views and arriving at some concrete actions about how we would use the concepts we were learning together.

Even though we had plenty of time to talk, the leaders delivered some short, impactful lectures. They discussed one model called the "Structure of Privilege and Disadvantage" or the One Up - One Down Model. We could each see how, in different roles, each of us is sometimes in the one up position and sometimes in the one down position.

Another exercise demonstrated the disparity between various groups of people due to privileges based on things such as skin color, class, gender, age and sexual orientation.

A definition from Paulo Freire was used throughout the day: Culture is everything that is not nature. We learned that everyone has culture, but that we all tend to be somewhat culture-bound. We believe our culture is the way life is and that other people are the different ones. Just by knowing that everyone has a culture changes our behavior; we think more along the lines of two cultures interacting when two people meet.

One of the strongest aspects of the workshop was learning the Ally Model, which is a road map that teaches us how to work with different communities with sensitivity and personal awareness. The model Diversity Training emphasized the importance of doing some up-front work to learn more about the leadership structure of a community, how a community communicates and gets together, and other characteristics. This knowledge will not only make all our work more respectful of the values of that community, but also make us more effective.

We all had a wonderful opportunity to get know each other much better in a genuine and meaningful way. We look forward to sharing what we learned with those of you who were not able to make it to the workshop.

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by Marylia Kelley and Inga Olson
from Tri-Valley CAREs' February 2001 newsletter, Citizen's Watch

Inga Olson officially begins work at Tri Valley CAREs on February 1st. As the group's Program Associate, she will be working on environmental Superfund cleanup issues, conducting public health outreach in neighborhoods near the Lab, and representing us in the nuclear weapons abolition campaigns we helped create, and in which we continue to participate.

Last year Inga worked at the State Capitol for Speaker pro Tem, Fred Keeley, the Assemblymember from Santa Cruz. She specialized in environmental and social justice legislation.

Last Fall, Inga was part of a team that taught non-violence techniques to people journeying to Fort Benning, Georgia for the 10th Annual Commemoration of the six Jesuits and their two co-workers who were assassinated in El Salvador at the hands of graduates of Fort Benning's counterinsurgency school -- called the School of Americas.

Inga was a member of the International Brotherhood of Electrical Workers, Local 1245, where she helped to reorganize PG&E's Meter Readers -- which resulted in a special appendix to the Labor Contract addressing the working conditions for Meter Readers.

We have previously known Inga from her work with Citizens Along the Roads and Tracks (CART), a Sacramento Valley group that organized around the trains carrying nuclear waste from Asia and Europe through California. Inga and CART have frequently joined in coalition with Tri-Valley CAREs on environmental and disarmament issues, including protests at the Livermore Lab.

Inga says she chose to work at Tri-Valley CAREs because of her great respect for the effective work the group has accomplished through the years.

Please feel free to come by the office and meet Inga, or call her on the phone. She will generally be in the office for 4 days a week, and telecommuting one.

Inga has transitioned from private enterprise to the public sector, and we are excited that she is a member of our team.

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from Tri-Valley CAREs' February 2001 newsletter, Citizen's Watch

Saturday, February 10
Abolition 2000 Northern CA
Quarterly Gathering
10 AM - 4 PM, NDE office
2398 Bancroft Way at Dana, Berkeley
(925) 443-7148 or (510) 849-1540

Come and spend an enlivening day sharing information and strategies for abolishing nuclear weapons. Agenda items include international disarmament updates, Missile Defense, and the National Ignition Facility. This quarter's gathering will be hosted by Nevada Desert Experience. Bring a brown bag lunch or explore one of Berkeley's nearby eateries. Coffee and tea provided.

Thursday, February 15
Tri-Valley CAREs meets
7:30 PM, Livermore Library
1000 South Livermore Ave.
(925) 443-7148 for details

Join your favorite peace and environmental group for its Feb. meeting. We will have exciting, new information on our actions to stop nuclear weapons development & the National Ignition Facility at Livermore Lab. We have action taking place in the courtroom (see page 1) and elsewhere, too. We will also share insights from our recent diversity training and our February "study group" on the Livermore Lab's site 300 Superfund cleanup. Tri-Valley CAREs is a place where your vision for a "green" future becomes real. Together, we are making a difference.

Saturday, February 17
Ward Valley victory gathering
Day-long celebration, Ward Valley, CA
(760) 629-4591, (415) 252-0822

The Colorado River Native Nations Alliance and the Ward Valley Coalition are hosting this gathering to commemorate the struggle that saved this sacred Indian land from a radioactive waste dump. Bring warm clothes, eating utensils and camping supplies. Camping is available beginning Friday night. For nearby hotel rooms, call 1-800-AVI-2WIN. Ward Valley is 22 miles west of Needles. Take the Water Road exit off I-40 and follow the signs.

Thursday, March 1
Tri-Valley CAREs' mailing party
7 PM, Tri-Valley CAREs offices
2582 Old First St., Livermore
(925) 443-7148 for directions

Tri-Valley CAREs' needs about a dozen pairs of willing hands to get our March Citizen's Watch ready for the Post Office. We will supply the labels, tabs and snacks. Can you bring the hands?

March 2 - 4
Remember, Reflect and Renew
Nevada Test Site Lenten events
(702) 646-4814 for details

Come to the nuclear test site for a series of Lenten activities. Join Bruce Gagnon (of the Global Network Against Weapons and Nuclear Power in Space), Janet Chisholm (of Episcopal Peace Fellowship) and Detroit's Bishop Thomas Gumbleton for a weekend retreat and action. An Ash Wednesday service will be held at the test site Feb. 28 and a peace walk is planned for April 8-13. Call Nevada Desert Experience (702) 646-4814 for more information.

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