Reading Room

Citizens Watch Newsletter October/November 2004

Oakland Court Says No Study Needed for Biowarfare Research
Tri-Valley CAREs Readies Appeal to Ninth Circuit

by Loulena Miles, from Tri-Valley CAREs' October/November newsletter, Citizen's Watch.

Until September 10th, the federal court in Oakland, California had issued a stay against importing and experimenting with deadly biological warfare agents at a proposed facility at Livermore Lab. Then, on the day before our country's commemoration of 9/11, Judge Saundra Armstrong decided to let construction and operation proceed at any time.

"An irony of the court's timing is that collocating biowarfare agents and nuclear weapons will make us more vulnerable to a local terror attack or contamination incident," noted Tri-Valley CAREs' Staff Attorney, Loulena Miles. "Further, this decision puts the international Biological Weapons Convention at risk as it may lead to the proliferation of similar facilities in other nations."

The court's order says that the Dept. of Energy (DOE) need not bother to conduct a full Environmental Impact Statement or hold public hearings before moving ahead with an advanced biowarfare agent research facility at Livermore Lab. The facility is called a Biosafety Level 3 (BSL-3) and it will enable Livermore Lab to conduct experiments, genetic modifications and aerosolization (spraying) with live anthrax, plague, Q fever and numerous other lethal pathogens. Moreover, the Lab plans to conduct what it calls "small animal challenges" of up to 100 at a time.

Despite the fact that the Las Positas fault zone is located less that 200 feet from the Lab boundary, DOE plans to use a 1,500 square foot prefabricated building for the BSL-3, which it will bring to Livermore on a flatbed truck.

Tri-Valley CAREs and Nuclear Watch of New Mexico, the two organizations that filed the original lawsuit, are preparing an appeal to the Ninth Circuit. "The Oakland Judge's ruling is appalling," declared Tri-Valley CAREs' Executive Director Marylia Kelley. "Judge Armstrong did not allow many of our expert witnesses to testify and failed to consider key facts in rendering the decision."

Lab's Environmental Record Ignored

Evidence we submitted, but which the court did not consider, includes a 1999 Livermore Lab memo that discussed a potential release of anthrax into the Lab's general trash. Additionally, the Judge struck from the record reams of information submitted by Tri-Valley CAREs and its attorneys about the Livermore Lab's negligent history of toxic and radioactive spills, releases and accidents.

"Compounding what we believe to be judicial error, after excluding our experts' testimony that proved the contrary, the court ruled that we had not sufficiently undermined DOE's assertion that Livermore had an 'infrequent' history of releases ? or that the Lab had operated other bio-programs without releases," explained lead attorney, Steve Volker.

The DOE simply stated to the court that it would comply with all applicable laws and regulations. Tri-Valley CAREs submitted ample evidence to demonstrate that this assumption of future compliance was unreasonable in light of Livermore Lab's poor safety, security and environmental records.

For example, the Lab's main site and site 300 are both on the Environmental Protection Agency's "Superfund" list of worst contaminated sites in the nation. Further, about one thousand claims for compensation due to on-the-job exposures to toxic and radioactive contamination have been filed in the last few years by sick Livermore Lab employees or their widows.

However, because the court bought into the assumption that Livermore Lab would operate in full compliance with the law, DOE was given a significant advantage in the lawsuit. The agency needed merely to assert that laws would be followed rather than outline active steps it would take ?- or safeguards it would implement ? in order to ensure compliance.

Employee and Public Infections

During the case, DOE argued that the Centers for Disease Control and Prevention (CDC) had an extremely low incidence of worker infections ? and that Livermore Lab would follow the CDC guidelines. This was offered as DOE's "proof" of safety. Yet, DOE failed to disclose, for example, that the CDC does not formally track these infection incidents and that incident reporting to CDC is voluntary. DOE's own records show that there are many reasons why laboratory-acquired infections would likely be under-reported, including lab managers' failure to report due to fear of reprisal, and scientific and medical journals' lack of interest in these incidents unless the infection is new, rare or somehow unusual.

When DOE released a flimsy environmental assessment (EA) in 2002 to build and operate the biowarfare research lab, 83 people and organizations submitted comments protesting the facility. Yet, the court ruled this was not sufficient to categorize the proposed BSL-3 as a "controversial" facility. According to the court, "only a relatively small number of individuals have voiced objections."

Tri-Valley CAREs argued that 83 was a substantial number of public comments given DOE's failure to publish a phone number, a fax number, an email or even a street address to which people could send their comments on the EA (shocking but true!). Further, when we demanded that DOE correct these omissions and provide an additional 30 days for public comment, the agency offered only 2 weeks and then refused to reissue the document with the basic information the public would need in order to send in comments.

Moving Forward

While we ready an appeal of this bad decision, Tri-Valley CAREs is also continuing to carry the torch to oppose this biowarfare research facility outside of the courtroom. In recent months, Tri-CAREs staff and members have spoken on panels, written articles and met with national and international officials to educate them on the health, safety, environmental and proliferation hazards of the proposed facility. This December, we will be at the meeting of the States Parties to the Biological Weapons Convention to present a statement on the treaty implications that will result from the U.S. government moving forward to operate advanced biowarfare research at classified nuclear weapons labs.

Contact us if you can help! We need immediate financial support to pursue the appeal. And, we need people to write letters to the editor, speak at City Council meetings, educate the community and, in general, help us deliver the message to DOE, Livermore Lab and the court that the public opposes this plan.

Nuclear Proliferation and Livermore's South Korea Connection

by Loulena Miles, from Tri-Valley CAREs' October/November newsletter, Citizen's Watch

In Sept., the director of the United Nations' International Atomic Energy Agency (IAEA) revealed that South Korea had conducted a series of secret experiments to produce weapons grade nuclear materials. According to Mohamed ElBaradei, the work "took place in 3 separate facilities that had not been declared" as required. Further, he charged that South Korea admitted its efforts to enrich uranium and separate plutonium only after the UN agency confronted it with evidence that IAEA inspectors had gathered over many years.

South Korea's program to enrich weapons-grade uranium focused on a laser technology known as Uranium Atomic Vapor Laser Isotope Separation (U-AVLIS). South Korea conducted these experiments in the 1980's and in the year 2000. U-AVLIS is a process whereby the uranium metal is heated and vaporized. Specially tuned laser beams are then shot through the vapor to separate the isotopes. The one desired for nuclear weapon cores is uranium-235.

According to the industry journal, Nuclear Fuel, the Korean Atomic Energy Research Institute benefited from the direct assistance of Livermore Lab, where key South Korean nuclear scientists were trained. While the U.S. government has been embarrassed by the revelation of its ally South Korea's nuclear programs, little has been mentioned in the press about the U.S. training of South Korean scientists at Livermore.

Neither has the press focused attention on the proliferation implications of the Dept. of Energy (DOE) recently giving Livermore Lab approval to conduct AVLIS experiments to separate plutonium isotopes for classified purposes ? or the potentially devastating impact of the recent DOE proposal to further expand this plutonium program in the future.

Plutonium AVLIS (Pu-AVLIS) is similar in its science and engineering to U-AVLIS. And, Pu-AVLIS is moving forward quickly at Livermore Lab.

Stage one of Livermore Lab's Pu-AVLIS program obtained secret approval in June 2002 without any public disclosure. Tri-Valley CAREs recently obtained proof of the approval process by pursuing documents under the Freedom of Information Act. Stage two of the program is disclosed in the DOE's draft Site-Wide Environmental Impact Statement for Livermore Lab, which was released in Feb. 2004. Ramping up Pu-AVLIS is listed in the document as a "proposed action."

Pu-AVLIS was originally planned at Livermore Lab in the 1980's but was abandoned amid a maelstrom of opposition. Pu-AVLIS was considered by lawmakers, the National Academy of Sciences and many non-governmental organizations like Tri-Valley CAREs to be expensive, unnecessary, hazardous and - most of all - a technology that would increase nuclear proliferation worldwide by creating and perfecting a difficult to detect method to separate plutonium isotopes and produce nuclear bomb grade plutonium from civilian reactor fuel rods.

Tri-Valley CAREs labored to stop Livermore Lab from developing Pu-AVLIS when it was first proposed. We will continue that opposition. Moreover, we were in the forefront of groups working to stop Livermore Lab's U-AVLIS program, which finally ended in 1999.

While South Korea insists it has abandoned its experiments to enrich nuclear materials, the revelations about the program ?- and Livermore's role in proliferating the technology to enable the bomb ? should serve as a cautionary tale about the far-reaching impacts of the work performed at Livermore Lab. Perfecting Pu-AVLIS at Livermore could lead to the global spread of this technology.

Back to Citizen's Watch Index