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Suing the Government to Protect Public Right to Know

Tri-Valley CAREs filed a lawsuit this December in federal court against the U.S. Department of Energy (DOE) and its National Nuclear Security Administration. The suit alleges numerous violations of the Freedom of Information Act (FOIA), the nation's key open government law enacted to ensure public access to federal government records.

We were forced to pursue litigation after the DOE failed to respond to six, separate FOIA requests within the 20-day timeframe generally required under the statute. By forcing Tri-Valley CAREs to wait up to 18 months and longer with no substantive response, the government has not only violated the law but greatly diminished the value of the information sought, which often becomes less relevant over time.

"As a ?atchdog' group, Tri-Valley CAREs relies on open government laws like FOIA to do its work on behalf of the community," Staff Attorney Rob Schwartz explained to the media. "Congress provided that right, but DOE has taken it away through abuse and neglect. We filed this case to protect the public's right to information about our government."

The FOIA requests concern nuclear and biological research activities at the Livermore Lab. In one request, we sought information about the Lab's Institutional Biosafety Committee, which itself is ironically intended to promote transparency. However, more than one year after making its request, Tri-Valley CAREs has yet to receive any documents concerning the committee, which is responsible for reviewing research involving recombinant DNA and biological materials.

Another of Tri-Valley CAREs' FOIA requests concerns a federal assessment of Livermore Lab's security programs that took place earlier in 2008. The Lab failed the most critical portions of that assessment, including training drills in which mock terrorists were able to succeed in their separate objectives to obtain sufficient material to detonate an "Improvised Nuclear Device" on-site and steal a stash of plutonium and highly enriched uranium. Livermore Lab's vulnerability to terrorist attack could endanger not only the Bay Area but the entire nation.

In other FOIA requests that are part of the lawsuit, we sought information concerning Livermore Lab's Tritium Facility, which may present serious public health and radiation hazards, and the use of plutonium at the National Ignition Facility (NIF). Plutonium use at the NIF could result in increased radioactive emissions from the Lab, endangering public health (and the Lab's public relations).

"We've identified a pattern and practice by DOE of failing to comply with FOIA," noted Schwartz. "Because we are addressing that pattern and practice with this case, a favorable ruling could have national implications."

Two Nuclear Appointments

President-elect Barack Obama has appointed Steven Chu as his choice for Secretary of Energy and announced that he will keep on Robert Gates as Secretary of Defense. If confirmed by the Senate, Dr. Chu will replace Energy Secretary Samuel Bodman, who has served in that position since 2005.

Chu was head of the Quantum Electronics Department at Bell Laboratories and has served as director of the Dept. of Energy's Lawrence Berkeley National Laboratory since August 2004. In 1997, he was awarded the Nobel Prize in Physics for his work in the development of methods for trapping atoms with laser light.

On the positive side, Chu is known to be a proponent of clean and renewable energy technologies and a keen supporter of basic scientific research. Yet, he has also gone on record advocating nuclear power and nuclear reprocessing.

For example, In 2005, UC Berkeley's Bonnie Azab Powell asked Chu, "Should fission-based nuclear power plants be made a bigger part of the energy-producing portfolio?" His response was unambiguous: "Absolutely." At a 2008 economic gathering in Palo Alto, CA organized by Stanford University, Chu stated, "Nuclear has to be a necessary part of the [Nation's] portfolio."

Interestingly, none of the Lawrence Berkeley employees to whom we have spoken so far know Chu's position on nuclear weapons. This is not too surprising since Lawrence Berkeley does no classified research - and so, as our informants put it, nuclear weapons did not come up in any conversations they had with Chu. However, it is a bit more curious that Chu did not address nuclear weapons issues in accepting the nomination to become Secretary of Energy. If confirmed, he will be in charge of the agency that designs, develops, tests, manufactures, assembles and disassembles all U.S. nuclear weapons.

On the other hand, the pro-nuclear weapons leanings of the Obama nominee for Secretary of Defense are well known. Robert Gates has advocated?n numerous occasions?or renewal of the Reliable Replacement Warhead (RRW) program, for which Congress has twice cut funding.

In a policy paper titled, "National Security and Nuclear Weapons in the 21st Century," co-authored by Gates and Energy Secretary Samuel Bodman, the two Secretaries argue, "[T]he Reliable Replacement Warhead program deserves continued study and development." Later in the same paper they describe RRW as, "key to sustaining confidence in the U.S. nuclear stockpile."

In marked contrast to Gates, Barack Obama remarked at a Purdue University roundtable discussion in July that his administration would, "make the goal of eliminating all nuclear weapons a central element in our nuclear policy."

While we are encouraged by Obama's position on nuclear weapons, we note that the retention of Robert Gates, ardent advocate of innovation in the U.S. nuclear arsenal, means that our new President will be under continuous pressure to sign off on new nukes. And, if Obama does not pay careful attention, nuclear bomb projects may move forward on Gates' signature.

Further, Steven Chu's position on a renaissance for nuclear power troubles us. We hope to meet with Chu early in his tenure to discuss issues involving nuclear power and weapons as well as the welcome attention we believe he will pay to renewables and basic science.

Notes on the Interim Nuke Policy Report

On December 11, 2008, the Congressional Commission on the Strategic Posture of the United States issued an interim report, detailing its initial findings and the next steps it plans to take.

The commission was created and tasked by Congress as part of the Fiscal Year 2008 National Defense Authorization Act. Its members include, among others, William Perry, former Secretary of Defense under President Clinton, James Schlesinger, former Secretary of Defense under President Nixon and Secretary of Energy under President Carter, Lee Hamilton, former Congressman and Vice Chair of the 9/11 Commission and the Iraq Study Group, and James Woolsey, former Director of Central Intelligence under President Clinton and an outspoken proponent of the Iraq War. Several commission members have close ties to Livermore Lab, including two of its former directors, Johnny Foster and Bruce Tarter.

In its report, the commission clearly noted its support for the Department of Energy's (DOE) Stockpile Stewardship Program and Life Extension Program (LEP), which maintain (and also enhance) the military capabilities of the existing stockpile of nuclear weapons. The commission avoided?or now?aking a stance on the Bush Administration's controversial Reliable Replacement Warhead (RRW) program to develop new nuclear warheads.

Reading between the lines, however, it appears that the commission is leaning toward supporting a proposal for new, so-called "heavy" LEPs, including plutonium pit (bomb core) reuse, which would allow the weapons labs at Livermore and Los Alamos to put RRW-like features into the nuclear weapons stockpile without calling the resulting bombs by the RRW name. (Tri-Valley CAREs is investigating this proposal to create essentially new nuclear weapons via the LEP program. We will keep you informed on this important "sleight of hand" throughout the year.)

Although the commission left the door slightly open "for the final abolition of nuclear and other weapons of mass destruction," it determined that the U.S. must continue to maintain a nuclear deterrent appropriate to existing threats.

In addition, the commission offered some support for the ratification of the long-stalled Comprehensive Test Ban Treaty (CTBT), which would ban nuclear explosions. This would be welcome news except that there is evidence the commission is poised to suggest a "deal" for the CTBT in its final report, one that will give the weapons labs more money and the above-mentioned "heavy" LEPs/RRW in "exchange" for a CTBT.

We opposed the "deal" in the Clinton Administration that "compensated" the weapons labs for the "loss" of underground testing that they would "suffer" under a CTBT by giving them the overblown, so-called Stockpile Stewardship Program. Under the Clinton strategy, the lab directors were supposed to support the CTBT when it came up for ratification in the Senate, which, in the end, the directors did not do. Moreover, because the weapons labs got their Stockpile Stewardship facilities (and more than $60 billion), they have been able to continue their deadly pursuits designing new weapons. Now, some in the government and even a few in non-governmental organizations are poised to repeat the mistakes of yesteryear and, again, enhance the weapons labs' bomb design capabilities. Not us!

Finally, and perhaps not surprisingly considering the makeup of the commission, the interim report also contained strong support for the DOE's laboratory system. The commission's final report will be issued on April 1, 2009. Stay tuned.

Our "Lame Duck Watch" Finds Bush DOE Rushing Decisions on New Bomb Plants

Happy holidays from the government. In Federal Register notices published just before Christmas, the U.S. Dept. of Energy (DOE) National Nuclear Security Administration issued two legally-binding authorizations, called Records of Decision (RODs), to revitalize and rebuild the nuclear weapons complex, at Livermore Lab in California and other sites across the country.

The two RODs codify the DOE's "preferred alternatives" laid out in the agency's final Complex Transformation Programmatic Environmental Impact Statement, issued in October 2008.

One ROD covers all of the DOE's "programmatic" decisions, defined as operations involving plutonium, uranium and assembly/disassembly of the bombs.

The other ROD covers 3 of 6 "project-specific" decisions, defined as tritium research & development (R&D), flight test operations, and major test facilities to assess performance of nuclear weapons under varying conditions.

The three "project-specific" decisions that await a future ROD are high explosives R&D, hydrodynamic testing, and weapons support functions at the Sandia, Livermore site.

"Essentially, the DOE is trying to lock in a provocative revitalization of the U.S. nuclear weapons complex in the waning days of the Bush Administration," charged Marylia Kelley, Tri-Valley CAREs' Executive Director.

"The ROD for operations involving plutonium, uranium and weapons assembly/disassembly admits that DOE is not choosing the ?nvironmentally preferable' alternative," Kelley added.

In plain English, the Bush Administration is putting our environment at risk in order to implement its plans for new nuclear bomb plants and bomb making capabilities.

The Bush Administration's "preferred alternative" for Complex Transformation runs counter to our genuine security. Moreover, the Complex Transformation strategy is explicitly tied to Bush's 2001 nuclear posture review, which has been declared dead on arrival in the Obama Administration. "These important decisions involving billions of tax dollars and our Nation's nuclear policy objectives should not be made a scant month before President-elect Barack Obama takes office and brings in his own team and governing philosophy," noted Kelley.

Under the DOE's two RODs, all eight active locations in the current nuclear weapons complex stand to remain open for further weapons activities. This is in marked contrast to the 1990s when the nuclear weapons complex moved from twelve active bomb-making sites down to eight.

Tri-Valley CAREs calls for a genuine further downsizing, not a rebuilding, of the complex - aiming us toward the day when nuclear weapons are abolished. And, as one concrete step in that process, we advocate that Livermore Lab be transitioned from nuclear bomb-making activities to civilian science missions like global warming and renewable energy research.

A record number of people (120,000!) joined us in opposing Complex Transformation during the public comment period. Now, the DOE is brushing aside the expressed wisdom and wishes of the people, many of whom live downwind and downstream of U.S. nuclear weapons facilities in California and across the country.

Under the RODs, nuclear bomb making quantities of plutonium and highly enriched uranium will remain in a vulnerable state at Livermore Lab until 2012, risking catastrophic release in the event of a terrorist attack or major earthquake. The present administrative limit for plutonium storage at the Lab's "Superblock" is 3,080 pounds, enough for about 300 nuclear weapons.

Similarly, Livermore Lab will continue two facilities that test nuclear bomb materials under differing environmental conditions until 2012. Livermore Lab will also carry out current and planned new activities with tritium, the radioactive hydrogen of the H-bomb, indefinitely according to the RODs.

Nationally, the "programmatic" ROD gives the go-ahead to construct a new Chemistry and Metallurgy Research Replacement - Nuclear Facility at Los Alamos Lab in NM, clearing the way for an increase in plutonium bomb core production there after 2009. The same ROD also "green lights" a massive, new Uranium Processing Facility at Y-12 in TN.

"We vigorously object to these dangerous and unnecessary facilities across the country," commented Kelley. Instead of building bombs, Tri-Valley CAREs supports a "Curatorship" approach to maintain the safety and reliability of existing weapons until they are dismantled pursuant to our disarmament obligations under the Non-Proliferation Treaty. Unfortunately, DOE summarily rejected that approach in its RODs, admitting that it did not (and would not) conduct a detailed analysis of the Curatorship alternative to its "preferred" new bomb plants.

These two RODs, rushed in before the New Year and the Inauguration of a new President, are intended to entrench the Bush DOE's aggressive nuclear policies. We at Tri-Valley CAREs will continue to oppose these plans. "I will do all I can to alert the new decision-makers and convince them not to provide any funding for Complex Transformation ," vowed Kelley, who will be returning to Washington, DC and meeting with Obama Administration officials in January.

Join us in stopping nuclear weapons in the coming year. Call us, visit our website, come to an event, and/or send us a tax-deductible contribution. We thank you!

Thursday, January 15
Tri-Valley CAREs meets
7:30 PM - 9 PM, Livermore Library
1188 So. Livermore Ave.
(925) 443-7148 for details

Resolve to promote peace, justice and a healthy environment in the New Year. Come to our first membership meeting of 2009. We welcome old timers and new members alike. Our agenda will include a discussion of strategies for stopping nuclear weapons in an Obama Administration as well as other topics of interest. Join us.

Monday, January 19

Commemoration and Peace Walk
"Peace and Healing Through Action: The Legacy of Dr. M.L. King, Jr."
10:00 AM, Coffee
10:30 AM, Commemoration/Program
11:30 AM, Sign-making & Walk
United Christian Church
1886, College Ave., Livermore
(925) 443-7148 for details.

Join us in celebrating the life and work of Dr. Martin Luther King, Jr. The commemoration will include stories of local peacemakers who have been touched by the legacy of Dr. King. Following the program, we will make signs and walk/march with our beliefs into the town square. Reflect on King's life in the company of activists, religious and secular alike. Consider the violence that exists today. Consider, too, the transformative power of love, hope and nonviolence. The event is sponsored by the Tri-Valley Peace Coalition, of which Tri-Valley CAREs is a member.

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