Tri-Valley CAREs

Monday, October 16, 2006  
Court blocks Lawrence Livermore research center

By: Bob Egelko, Chronicle Staff writer
Published In: San Francisco Chronicle
http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/10/17/LIVERMORE.TMP

A federal appeals court on Monday blocked Lawrence Livermore National Laboratory from opening a research center for detecting biological weapons until the government studies the possible environmental consequences of a terrorist attack.

The Ninth U.S. Circuit Court of Appeals in San Francisco said the federal Department of Energy must consider whether terrorists could attack the center, and then decide whether the possible consequences warrant a full environmental review. Such a review could take a year.

Two anti-nuclear organizations and several local residents sued the government to keep the lab from opening next month. Research performed at the lab is intended to help the government detect terrorist weapons that might take the form of biological pathogens such as anthrax, plague, brucellosis and Q fever.

According to the plaintiffs, the research would include putting lethal substances into aerosol form and testing them on mice, rats and guinea pigs.

The Energy Department had previously concluded that the possibility of deadly substances being released into the general population was too remote to require a full environmental review. Such a review would require the government to solicit public comment and consider possible protective measures, such as moving the research lab elsewhere.

The appeals court did not go that far in its ruling Monday, but it did tell the Energy Department to look into the environmental consequences of a terrorist attack and document its conclusions.

Lab spokesman Steve Wampler said the government was reviewing the ruling and hadn't determined what actions to take or when the research lab might open.

The appeals court based its 3-0 ruling on a Ninth Circuit decision in June requiring the government to consider the possibility of a terrorist attack before allowing construction of a nuclear waste storage site at the Diablo Canyon power plant near San Luis Obispo. The plant's operator, Pacific Gas and Electric Co., has appealed that ruling to the U.S. Supreme Court.

Opponents of the Livermore testing lab described Monday's ruling as a major victory.

"This decision marks a turning point for Department of Energy decision-making,'' said Loulena Miles, a lawyer with the anti-nuclear group Tri-Valley CARES, which is a plaintiff in the suit.

"I feel safer today because of the court's decision,'' said the group's executive director, Marylia Kelley, who lives a quarter-mile from the Livermore lab. "In the event of a terrorist attack on this laboratory where bio-agents become airborne, hundreds or thousands of people could have been exposed to deadly pathogens.''

The court sided with the government, however, on other issues in the case, including opponents' claims that the possible release of hazardous substances in an earthquake required full environmental review.

The suit, filed in 2003, contended that the Las Positas fault zone near the lab is capable of generating a quake of greater magnitude than the prefabricated building housing the research lab is designed to withstand.

The appeals court said the government had made a "minimal assessment of earthquake risks despite the presence of known, active faults that run directly under nearby Berkeley.'' But despite "some substantial questions about the validity of (the department's) substantive conclusions,'' the court said it was legally required to accept those conclusions, because the department had examined the environmental concerns and made a "fully informed'' decision.

Despite that setback, plaintiffs' lawyer Stephan Volker said the court's order of reconsideration would allow opponents to reopen a variety of safety issues by presenting information about earthquake hazards and security risks that wasn't available when the department approved the lab in December 2002.

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