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For immediate release: March 10, 2008

Group Sues to Stop Experiments With Bio-Weapon Agents at Livermore Nuclear Weapons Lab; Charges Energy Dept. Did Not Properly Evaluate Terrorism, Other Risks

for more information, contact:
Marylia Kelley, Executive Director, Tri-Valley CAREs, (925) 443-7148
Robert Schwartz, Staff Attorney, Tri-Valley CAREs. (925) 443-7148
Steven Sugarman, Belin & Sugarman, (505) 672-5082

LIVERMORE - A lawsuit filed in Federal Court today under the National Environmental Policy Act (NEPA) aims to stop the operation of a bio-warfare agent research facility at the Livermore Lab main site. The Dept. of Energy (DOE) began conducting experiments on January 25, 2008 on the basis of a faulty, unsupported "finding of no significant impact" (FONSI) without conducting a legally adequate environmental review and public comment process.

The Livermore-based Tri-Valley CAREs' lawsuit challenges the DOE approval to begin experiments with deadly pathogens such as live anthrax, plague and Q fever in a portable Biosafety Level-3 (BSL-3) facility that includes three internal labs.

Tri-Valley CAREs' suit asks the Federal Court to grant interim injunctive relief, stopping the operation of the BSL-3 while the case is being considered. The litigation further asks the Court to consider four counts against DOE. They are:

  1. Failure to prepare an adequate environmental assessment and FONSI,
  2. Failure to prepare a full Environmental Impact Statement and hold public hearings,
  3. Failure to supplement the environmental assessment when significant new information became available (including Livermore Lab's violation of multiple laws and regulations that led to an anthrax release), and
  4. Failure to comply with applicable regulations, including the one governing the circumstances under which a FONSI must be circulated for public review and comment before it can be finalized.

Experiments, Risks and the Potential for Terrorism

There are scores of "select agents" - deadly pathogens historically used in bio-weapons - to be shipped in and out and handled in the facility. The inventory of the Livermore Lab BSL-3 is slated to rise to include a total of 50 liters of potentially deadly biological agents. A single liter of Coxiella burnetti, the causative agent for Q fever, at the concentration specified for use in the Livermore BSL-3, contains enough organisms to cause 10 billion human infections. The world population is 6.7 billion. (For more, see Declaration of Edward Hammond in Support of Plaintiffs' Motion for Preliminary Injunction.)

Operations at the Livermore BSL-3 will include genetic modification of bio-weapon agents, raising the possibility that novel, uniquely lethal pathogens will result. The facility will also conduct aerosol (spray) experiments on up to 100 mice, rats and occasional guinea pigs at a time. Bio-lab hazard and containment levels go from 1 - 4, with the highest level reserved for the rarest diseases for which there is no known cure, such as Ebola. A BSL-3 designation allows pathogens that may be lethal if inhaled.

Genetically manipulating organisms and creating aerosols are two activities that have "dual use," meaning they can be associated with offensive as well as defensive bio-warfare research. Tri-Valley CAREs and independent experts believe that conducting this research at a classified DOE lab whose mission is the development of nuclear weapons threatens the Biological Weapons Convention, the treaty banning bio-weapons to which the U.S. is a signatory. (For more, see Declaration of Dr. Mark Wheelis in Support of Plaintiffs' Motion for Preliminary Injunction.)

Further, the large inventory of multiple bio-weapon agents, the presence of genetically modified variants, and the fact that some of the pathogens have been put into just the right form to be effectively spread via an airborne release, all serve to make the Livermore BSL-3 a potential magnet for terrorism. (For more, see Declarations noted above.)

However, the DOE flaunted both science and the law to reach a conclusion that because terrorists could obtain some pathogens from the environment, the Livermore BSL-3 would not be "an attractive target" for terrorism. Therefore, no further analysis was needed, stated the DOE. As noted, Tri-Valley CAREs' lawsuit asks the Court to set aside DOE's unsupported conclusion and compel the agency to conduct a more rigorous analysis.

Local and National Significance of the Lawsuit

Marylia Kelley, Tri-Valley CAREs' Executive Director said, "I fear the consequences if this BSL-3 is allowed to operate without further review. The Livermore Lab has already contaminated its workers and polluted the community with toxic and radioactive spills. The threat of a catastrophic release of deadly microbes in an earthquake, accident or terrorist attack is too real and too serious to disregard, as DOE has done in saying 'no significant impact.' Our lives are worthwhile, and we are suing to save them."

The group's Staff Attorney, Robert Schwartz summed up the precedent setting nature of the case, "We are asking the Court to determine the adequacy of the terrorism analysis for a bio-warfare agent research facility located in a major metropolitan area. This is an issue of regional and national importance. The outcome of this case will influence how well or how poorly the DOE and other federal agencies analyze the risks of terrorism from this day forward."

A Bit of Legal Background

Tri-Valley CAREs has pressed for a full environmental review for the Livermore Lab BSL-3 since it was proposed in 2002. In 2003, Tri-Valley CAREs and Nuclear Watch New Mexico filed a lawsuit challenging the operation of the Livermore BSL-3 without a full Environmental Impact Statement and public hearings. The DOE had prepared only a lesser-level, cursory assessment report.

That lawsuit originally covered DOE BSL-3 proposals at both Livermore Lab and Los Alamos Lab in New Mexico. However, during the course of the litigation, the DOE in New Mexico decided to withdraw its FONSI and conduct the full Environmental Impact Statement for the Los Alamos BSL-3 that our litigation requested. That document is still being prepared, and will be circulated in the future in draft form for public comment and public hearings.

Since the DOE Livermore Site Office still refused to prepare an Environmental Impact Statement, the lawsuit against the Livermore Lab BSL-3 continued to the Ninth Circuit Court of Appeals. In 2006, we achieved a victory when the Appellate Court ruled that DOE must go back to the drawing board and analyze the health and environmental impacts of a terrorist attack on the Livermore BSL-3, which it had failed utterly to do. Our case was only the second time the Court had ruled that an agency must consider terrorism under NEPA, and it was the first case involving DOE.

Kelley concluded, "As significant as that legal victory was, it will make us safer only if DOE takes the risks posed by a terrorist attack seriously - and prepares a credible analysis, with appropriate mitigation measures, to address the threat. Instead, for the Livermore Lab BSL-3, the DOE glossed over the impact of a terrorist attack in a shoddily revised, still cursory assessment, stubbornly refusing to conduct a full Environmental Impact Statement or hold even a single public hearing."

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