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Citizens Watch Newsletter November 2000

Freedom of Information Not So Free at Energy Department:
Agency Violates the Law, Keeps Unclassified Documents Secret

by Marylia Kelley and Ann Seitz
from Tri-Valley CAREs' November 2000 newsletter, Citizen's Watch

In early November, Tri-Valley CAREs will file two lawsuits in federal court in San Francisco against the Dept. Of Energy (DOE) for failing to provide records requested under the Freedom of Information Act (FOIA). (See our press release here on the website for links to the lawsuit documents.)

One of the two cases involves the National Ignition Facility (NIF), a nuclear weapons design project under construction at the Livermore Lab.

On September 1, 1999, Tri-Valley CAREs requested all documents involving the NIF "Inertial Confinement Fusion (ICF) management meetings." ICF is the nuclear fusion method to be used at the NIF mega-laser.

It was at the monthly ICF meetings that NIF's rapidly-slipping schedule and other technical problems were discussed between managerial staff at Livermore Lab, Los Alamos Lab, Sandia Lab and DOE Headquarters, among others. It follows, therefore, that the records from these meetings should shed some light on the question of who knew what when about NIF's spiraling costs, unresolved technical difficulties and schedule delays. This is unclassified information to which the public has a right.

Under FOIA, the DOE had 20 days to respond. Instead, more than a year has passed while DOE has, in essence, thumbed its nose at the law.

First, DOE said that it would not produce the ICF managers' meeting notes taken by DOE and weapons lab personnel. Amazingly, the Department claimed that the notes were not government business; that they were the personal property of the employees-as if the meeting notes were the same as grocery lists compiled on the employees' off-duty hours.

Tri-Valley CAREs appealed this decision to the DOE's Office of Hearings and Appeals. The Office ruled that DOE had not adequately justified its decision to withhold the meeting notes, and therefore remanded the matter back to DOE for further consideration. DOE, however, proceeded to merely reaffirm its earlier decision not to produce the notes.

Tri-Valley CAREs' suit challenges DOE's decision, and asks the court to find the agency in violation of the law - and to require the release of the meeting notes. Further, the suit seeks to command the DOE to produce numerous, additional documents listed in the group's 1999 FOIA request that the agency has similarly and illegally kept hidden from the public.

The second FOIA lawsuit involves documents outlining a DOE plan to shift various nuclear weapons activities around the country. This proposal, dubbed the mega-strategy by DOE, would dramatically increase the plutonium work load at Livermore Lab. Under the mega-strategy, Livermore would take over the weapon re-design work for the W80, a nuclear warhead originally developed at Los Alamos with both sea and air-launched versions. Moreover, under this proposal Livermore Lab would take over the entire nuclear stockpile plutonium pit surveillance program from Los Alamos. Both of these changes would result in more plutonium coming to Livermore.

The DOE has shrouded this plan in darkest secrecy, not because of genuine national security concerns but, rather, to circumvent the community's right to know.

On September 15, 1999, Tri-Valley CAREs filed a FOIA request for all documents pertaining to the DOE's so-called mega-strategy in order to assure an adequate public understanding of the proposal. Again, more than a year has elapsed since the FOIA request was filed-and DOE has still not provided a single responsive document. The lawsuit asks the court to compel production of the requested records.

The DOE has exhibited a "pattern and practice" of not responding to FOIA requests in the manner prescribed by statute. Routinely, DOE has failed to fulfill Tri-Valley CAREs' FOIA requests, and those of other organizations and individuals, within the allotted timeframe. The DOE's conduct frustrates Tri-Valley CAREs' efforts to educate the public regarding major activities at the DOE's Livermore Lab and throughout the nuclear weapons complex.

Therefore, in both lawsuits, Tri-Valley CAREs also asks the judge to issue a court order appointing a Special Counsel to investigate DOE's pattern of failing to comply with the law. The Special Counsel would then determine whether disciplinary action is warranted, and against whom. Tri-Valley CAREs was forced to bring a similar FOIA lawsuit in 1998. Only after the group filed a complaint did DOE begin to produce the requested documents.

Noted New Mexico attorney Steve Sugarman handled the 1998 case and is lead attorney in the two current actions.

"Tri-Valley CAREs should not be in the position where it has to file lawsuits in order to obtain public information," Sugarman noted. "The Freedom of Information Act was enacted specifically so organizations like Tri-Valley CAREs would have free access to documents that disclose the operations of the government. These two lawsuits are intended to vindicate the public's right to stay informed about this country's nuclear weapons programs and to understand the impact of those programs on their lives."

Lawsuit Challenges National Ignition Facility Review

by Marylia Kelley
from Tri-Valley CAREs' November 2000 newsletter, Citizen's Watch

In October, Tri-Valley CAREs and the Natural Resources Defense Council filed a lawsuit in federal court in Washington, DC, charging the Dept. of Energy (DOE) with multiple violations of the Federal Advisory Committee Act (FACA).

FACA is a public interest law, designed to ensure that whenever a government agency uses any external committee to provide advice or recommendations the resulting committee is "balanced" in its view point -- and consists of members who are free from conflict of interest. Further, the law specifies that committees must hold open meetings and make documents the committee reviewed or produced available to the public.

Enter the DOE's so-called Carlson-Lehman committee, tasked by the Energy Dept. to prepare an assessment of whether the National Ignition Facility (NIF) mega-laser at Livermore Lab should move forward. This assessment is also known as the NIF "rebaseline."

The Carlson-Lehman team and its review process were so completely hidden from public scrutiny that even its membership list and meeting agendas were secret. Requests for information by Tri-Valley CAREs and others were summarily rebuffed. Additionally, when the team came to Livermore for a week, Lab and DOE officials denied all public access.

It was not until September 15, 2000 - after the committee had completed its review and transmitted a rosy assessment of NIF to the U.S. Congress - that its roster became public.

More than half of the Carlson-Lehman review committee's 38 members work for DOE or one of the DOE labs, such as Lawrence Livermore. Kathleen Carlson manages the Nevada Operations Office for DOE, Daniel Lehman works for DOE.

A crucial review subcommittee, the one charged with assessing "large optics" problems at NIF, consisted of 4 members. Large optics is one of several areas at NIF with serious, unresolved technical difficulties. All four members had major conflicts of interest.

First, the chair of the "large optics" subcommittee is a senior scientist on the French Laser M?ajoule project, a close copy of NIF. Thus, attention paid to the severity of NIF's optical problems could have an adverse impact on funding for both NIF and the French laser - and a negative effect on his career. Another of the 4 members is John Emmett, a frequent consultant to Livermore and the former Associate Director for Lasers there. A third member currently works at another DOE lab, and the fourth is a former a Livermore Lab staffer who is now paid as a consultant by the Lab.

And so it goes. Other subcommittees, and the overall Carlson-Lehman review of which they were an integral part, consisted in large part of members similarly afflicted with conflicts of interest and a pro-NIF viewpoint.

To add insult to injury, DOE then characterized the Carlson-Lehman review as "independent" not once, but numerous times - in its press release, in a letter to Congress to support DOE's funding request for NIF and in the report itself.

Moreover, it is this "rebaseline" review that Congress is relying upon to make decisions about funding the big budget increases that DOE is requesting for the NIF, both this fiscal year and beyond.

The DOE has engaged in a consistent pattern of stacking NIF review committees, and then touting their foregone conclusions as independent assessments.

With this lawsuit, we are taking steps to ensure that DOE will not be able to continue using a biased, illegally-prepared report to convince Congress and the public that NIF is in good shape, or that more billions of our tax dollars should be thrown its way.

Print Bites: All the News That Fits to Print

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

  • Business as Usual.

    Energy Secretary Bill Richardson has decided to enter into exclusive negotiations with the University of California to extend the contracts to run Livermore and Los Alamos Labs. So, despite massive project management failures, a General Accounting Office report detailing lies and deception by ranking managerial staff regarding NIF, security flaps galore and a general failure of post-Cold War leadership so pervasive it transcends any single scandal, the DOE plans to extend the weapons labs' contracts with UC for three additional years - and to do it without competition. Extending UC's 5 decades-long sweetheart deal to manage the weapons labs while eschewing open negotiations and competitive bids serves neither the workers nor the public. For, as long as the contract negotiations are held in the proverbial "smoke-filled" rooms, the community has little influence over the final product. The DOE sought to deflect criticism of its action by announcing intended "reforms" - such as instituting an advisory group comprised of lab officials to assist the UC President (in managing them) - but the measures lack substance.

  • A Modest Beginning.

    On October 30, President Clinton signed legislation to establish the "Energy Employees' Occupational Illness Compensation Program," which was included in the fiscal year 2001 Defense Authorization Act. The program is intended to cover workers made sick due to exposure to radiation, beryllium or silica. The bill provides lump sum payments of $150,000 to workers or their survivors who qualify. For those still living, medical care may also be provided. However, the program as outlined so far is vague, complicated and may not serve thousands who need it. The DOE estimates only 3,000 workers out of 600,000 will qualify for compensation. And, family and community members need not apply for their ailments, even in cases where their exposures match or exceed the workers.

  • Go Directly to Jail.

    A little-publicized law, expected to be signed by President Clinton, may have a far-reaching, chilling effect on the public's ability to gather environmental and other data from government agencies. The new law would make it illegal to leak any sort of classified information. It is already a crime to release classified information "related to the national defense." So, why are whistleblowers, journalists and watchdog groups like ours worried? What might change? First, in other countries that have similar, blanket "Official Secrets Acts," there is generally less information available to the public about government activities. Further, consider that the U.S. already has over a billion pages of classified material, and that classification categories contain such oxymorons as "previously published classified data." Dr. Hugh DeWitt of Livermore Lab ran afoul of that one when he prepared a paper and a talk based on information published in newspapers, then had his security clearance suspended -- because the information had been deemed by DOE to be classified although published. Imagine if people began going to jail for such an infraction. The quality of the public debate in our society is already too poverty-stricken by far due to over classification This will be a huge step in the wrong direction.

  • Lab Role.

    Livermore Lab has signed an agreement to join forces with UC Merced, in California's central valley. The new campus is still in the planning stages. Yet, Livermore is already carving out a special role for itself. The agreement calls for joint research projects and Lab personnel signing on as teachers. Central Valley activists are concerned that Livermore may bring some of its hazardous, nuclear weapon-related programs to the new campus as well.

Thank You!

In September, we mailed the summer appeal letter to our members & friends. (OK, a little late this year, but we've been BUSY!)

Nearly 200 of you have already responded, & we want to say "thanks."

With your help, we have just printed 1,000 more copies of our latest report, "Managing the U.S. Nuclear Weapons Stockpile: A Comparison of 5 Strategies," by Dr. Robert Civiak. We sent one to every country's Ambassador to the United Nations during the most recent UN meeting on disarmament. Next, we will send a copy to every Member of the United States Congress.

Working together, we will stop the DOE's weapons program.

Citizen's Alerts -- Calendar Section

Saturday, November 11
Abolition 2000 Northern California
Quarterly Gathering
10 AM - 3:30 PM, First Christian Church
80 South 5th St., San Jose
(925) 443-7148 for details, directions

All interested organizations and individuals are welcome. Bring a bag lunch. The Northern California regional gathering of Abolition 2000 is a special time to talk disarmament strategy, plan activities together and support each other in our common endeavor to rid the globe of the threat of nuclear war. The November gathering will be hosted by the San Jose Peace Center. Following the Abolition 2000 gathering, at 3:30 PM, will be a planning meeting of the Vandenberg Action Coalition.

Thursday, November 16
Tri-Valley CAREs meets
7:30 PM, Livermore Library
1000 So. Livermore Ave.
(925) 443-7148 for details, directions

Would you like to do something positive for yourself and the planet? Come to our Tri-Valley CAREs meeting and help create the social and political changes you seek. Together, we are a potent force for peace, justice and a healthy environment. November agenda items include: a post-election analysis, planning for the community trainings on radiation and health effects, news about the National Ignition Facility, Tri-Valley CAREs' lawsuits, volunteer opportunities and more. This will be our last monthly meeting of Year 2000. Don't miss it.

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

Join your favorite peace and environmental group for a couple hours of interesting conversation, snacks, and, of course, mailing labels for you to affix to next month's newsletter. It's easy, and your help saves us money!

Friday, December 8
Community Health Training
"Radiation, Risk & the Community"
9 AM - 3 PM, Auditorium
CA Dept. of Health Services
1515 Clay St., downtown Oakland
(925) 443-7148 to RSVP
Please RSVP by November 30

This important workshop features Dr. Marvin Resnikoff on the hazards of radiation, Dr. Peggy Reynolds on health studies of Livermore Lab workers and the community, Diane Quigley of Syracuse University on community participation in public health decisions and more. The Friday, Dec. 8 training session is geared toward city, county and state health agencies, while the Saturday, Dec. 9 training session will be tailored for community members. However, the most important factor is YOUR attendance. So, please feel free to RSVP for the session that fits your schedule. Call Tri-Valley CAREs at the number above.

The radiation and health training is sponsored by Tri-Valley CAREs, Western States Legal Foundation, Physicians for Social Responsibility, Clark University, Alameda County Health Dept. and the CA Dept. of Health Services - Environmental Health Investigations Branch.

Saturday, December 9
Community Health Training
"Radiation, Risk & the Community"
10 AM - 3 PM, City Council Chamber
3575 Pacific Ave., Livermore
(925) 443-7148 to RSVP
Please RSVP by November 30

This special training for activists, workers, parents and community members will answer your questions about the health risks of ionizing radiation. Our goal is a more informed citizenry. You will leave better equipped to be a resource to your friends and neighbors -- and you will also become more able to participate in public health decision-making. Workshop trainers include Dr. Marvin Resnikoff on fundamentals of radiation and health and Diane Quigley on increasing community involvement. Dr. Peggy Reynolds will also present on health studies related to the Livermore Lab. There will be time for questions.

Health Impacts of the Lawrence Livermore National Laboratory

by Pat Sutton (Western States Legal Foundation) and Marylia Kelley (Tri-Valley CAREs).

Note: The "background" piece, below, on the environmental and health effects of Livermore Lab activities, was included in an insert in Tri-Valley CAREs' November 2000 Citizen's Watch. In addition to its intrinsic value, it provides a context for the upcoming community health trainings on "Radiation, Risk & the Community," December 8 and 9, 2000 in Oakland and Livermore, respectively.

Located about fifty miles east of San Francisco, Lawrence Livermore National Laboratory was established in 1952 to develop and test thermonuclear (hydrogen) bombs. Together, Livermore Laboratory and the Los Alamos National Laboratory, in partnership with Sandia National Laboratories, have designed and tested all nuclear warheads in the U.S. arsenal. The environmental legacy of almost a half-century of nuclear weapons research, on-site production of nuclear test bomb components, and poor environmental stewardship at the Lab includes:

  • Soil and groundwater contamination: There is severe soil and groundwater contamination at the Lab's main site in Livermore, and its site 300 testing range in nearby Tracy. Both locations are on the Environmental Protection Agency's Superfund list of worst contaminated sites in the country.

  • Plutonium releases: Reports by government health agencies indicate that plutonium contamination may be widespread among Livermore households due to the distribution of plutonium-laden sludge throughout the community for use as a soil amendment. Health officials have documented plutonium contamination in 3 parks.

  • Tritium releases: Since the 1960s Livermore Lab has released approximately a million curies of radiation into the environment, equivalent to the amount of radiation deposited by the US bombing of Hiroshima. Lab documents disclose that Livermore Valley wines contain up to four times the tritium of other California wines. Rainfall has been found to contain as much as seven times the state and federal drinking water standard.

  • Toxic sewer line releases: Leakage from the Lab's sanitary sewer lines on-site and off-site, may have resulted in other plutonium and radionuclide discharges into the Livermore community. DOE studies indicate that the integrity of the sanitary sewage system is open to question, and that leakage of waste water is possible from the Lab sewer lines. In March 1999, the California Department of Health Services recommended that the potential contaminant releases from sewer line ruptures be investigated.

  • Health studies suggest reason for concern: Research conducted to date includes two worker health studies in the early 1980s that found significantly higher levels of malignant melanoma in Lab employees which were correlated to five occupational risk factors, all involving exposure to radiation and/or chemicals. A 1995 California Department of Health Services' investigation of childhood cancer incidence among Livermore children and young adults, as compared to children and young adults in the rest of Alameda County, found two and one-half times the expected number of children with malignant melanoma living in Livermore at the time of diagnosis, six times the incidence of malignant melanoma in children and young adults born in Livermore, and elevated levels of brain cancer among children born in Livermore in the 1960s.

Health Impacts Span the Past, Present and Future

Nuclear weapons development at Livermore Lab continues to this day. Consequently, the potential for community exposure to plutonium, tritium and other toxic substances arises from the past as well as from current and future uses of these isotopes and other hazardous materials at the Laboratory. The current U.S. nuclear weapons program, deceptively named "Stockpile Stewardship," involves the expenditure of $5 billion a year over the next decade on nuclear weapons research, development, testing and production. This cost, in constant dollars, represents about a 25% increase over annual Cold War spending for directly-comparable activities.

Currently, as part of the Stockpile Stewardship Program, Livermore Lab is building the largest nuclear weapons facility in its history, called the National Ignition Facility. At an ever-escalating construction cost, currently estimated to be as high as $4 billion, the National Ignition Facility is intended to use 192 laser beams to initiate a thermonuclear blast in a reactor vessel.

At the same time, Livermore Lab proposes to construct a new $32 million hazardous and radioactive waste treatment facility. Indeed, there is an unceasing stream of hazardous waste flowing from the DOE's past and present nuclear weapons activities. According to the DOE's Waste Management Programmatic Environmental Impact Statement, more low-level mixed wastes and low-level wastes, and nearly as much transuranic wastes, will be generated over the next 20 years than are currently stored. These figures do not include wastes from cleanup operations.

In addition, Livermore Lab presently has 880 pounds of plutonium, nearly enough for 100 modern nuclear bombs, 500 pounds of highly enriched uranium, and a "smorgasbord" of other radioactive and toxic materials on-site.

The impact of environmental releases from Livermore Lab will also persist -- in the case of plutonium for thousands of years -- because of the long half-life of some of the radionuclides dispersed into the environment. Moreover, due to the potentially long-latency period between exposure and health outcome, the health impacts of past exposures may be occurring in the present and future. The population at risk is large and growing. Over 60,000 people now live in the town of Livermore, and DOE environmental review documents define the "affected community" as the approximately six million people living within a 50-mile radius of the Lab.

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