Reading Room

November/December Citizen's Watch Newsletter

Download the PDF

A Letter of Thanks...

by Marylia Kelley from Tri-Valley CAREs' November/December 2010 newsletter, Citizen's Watch

Dear friends:

On behalf of the Board and staff at Tri-Valley CAREs, I want to thank all of you who have given so generously of your time, skills, care and finances over this past year to ensure our continuing success.

I am thrilled to report that our spring appeal to send a team of dedicated activists and youth to Washington resulted in more than 200 donations. Further, our summer challenge grant of $15k was successfully met by more than 250 individual contributions from our wonderful members and friends.

Overall, nearly 600 of you have given gifts this year ranging from a few dollars to a few thousand. Every contribution matters, and we are truly blessed by your caring and support.

As you will read in these pages, we are making strides toward a more just, peaceful and sustainable world. Due to our "watchdog" efforts, beryllium exposures at Livermore Lab received public scrutiny. This month, we discovered that Lab management was being fined for those violations. We checked to see if they were alerting the media. Big surprise, they were not. Solely because of our vigilance, the LA Times, Contra Costa Times and other media got (and ran) the story.

Similarly, we are taking action to curb Livermore Lab's dangerous bio-warfare research. In this issue, you can read about our latest action to challenge a bad lower court decision by going to the Ninth Circuit Court of Appeals. Your support for Tri-Valley CAREs makes these and other activities possible. I THANK YOU!

I also want to recognize the foundations that have provided crucial support over the past year, including Ploughshares Fund, Colombe Foundation, Connect US (through Tides), Samuel Rubin Foundation, New-Land Foundation, People's Life Fund, Common Counsel's Grassroots Exchange Fund and As You Sow. In addition, our Superfund work has been recognized with a Technical Assistance Grant from the EPA.

These contributions publish our newsletter, create our reports, host community meetings, sponsor demonstrations, file lawsuits, keep our office open - and more.

Together, I know we will continue to create change in 2011.


Marylia Kelley, Executive Director

Lab Management Fined for Toxic Beryllium Exposures

by Scott Yundt and Marylia Kelley from Tri-Valley CAREs' November/December 2010 newsletter, Citizen's Watch

In November, the U.S. Department of Energy (DOE) Office of Health, Safety and Security (HSS) announced a $200,000 penalty issued to the managers of the Livermore Lab.

This unprecedented action stems from the agency's finding that the Lawrence Livermore National Security, LLC's (LLNS) legally-required program to minimize worker exposure to beryllium was rife with "deficiencies" that led to multiple, uncontrolled worker exposures between 2007 and 2010, subsequent to the LLNS contract to manage the Lab

Tri-Valley CAREs obtained a copy of the agency Order mandating payment of the fine, which is signed by DOE HSS Director, John Boulden, DOE National Nuclear Security Administration (NNSA) head, Tom D'Agostino, and Livermore Lab Director George Miller.

"While the amount of the fine should have been greater," said Marylia Kelley, Tri-Valley CAREs' Executive Director, "we are pleased that attention is finally being given to the Lab's horrendous record of exposing workers to beryllium." She added, "Tri-Valley CAREs has documented more than 200 worker exposures to beryllium over the past four years alone."

Beryllium, a potentially deadly toxic metal, has been used for 50 years at Livermore Lab in the research and development of nuclear weapons. The machining process releases fine particle beryllium dust into the air, which, upon inhalation, can lead to serious lung conditions ranging from initial beryllium sensitivity to incurable and fatal Chronic Beryllium Disease and/or Lung Cancer.

Due to the history of beryllium use at Livermore Lab and the risks posed to workers, Lab management was required to create a legally-compliant Chronic Beryllium Disease Prevention Program (CBDPP).

According to the 7-page Order, the Lab's program did not comply with federal law. The Order details numerous incidents involving worker exposures to beryllium in various buildings, demonstrating flagrant "deficiencies" in the Lab's CBDPP.

Following negotiations between DOE HSS, NNSA and Livermore Lab management, the penalty was issued, and agreed to by Lab Director George Miller, pursuant to a "Consent Order" rather than a Notice of Violation.

Here is the very telling chain of events. After a series of worker exposures, the DOE NNSA required Livermore Lab to conduct an internal evaluation of its CBDPP. As you might have guessed, Lab management found itself in compliance with applicable laws and regulations and asserted that no additional investigation was necessary.

However, DOE NNSA opted to check the plan, including a review of the Lab's internal evaluation. NNSA found that Lab management had not performed an adequate effectiveness review; failed to analyze the underlying human performance and safety culture issues; failed to ensure that the CBDPP would meet requirements; and failed to identify corrective actions for institutional weaknesses to minimize worker exposures.

The DOE HSS Office of Enforcement then separately investigated the exposures. They identified numerous violations of law and regulations including:

- failure to identify and inventory beryllium contamination in buildings to control worker exposures to legacy beryllium;

- failure to do hazard assessments for the buildings that were identified in the beryllium baseline inventory;

- failure to implement proper hazard control and prevention measures;

- failure to ensure that potential airborne beryllium exposures were accurately measured;

- failure to control materials and equipment located in beryllium contaminated work areas to ensure that they were not moved to non-beryllium work areas;

- failure to evaluate cases of beryllium sensitization and the increasing trend of beryllium sensitization to identify work groups at increased risk for chronic beryllium disease; and,

- failure to effectively train employees to perform work within beryllium contaminated areas.

Staff Attorney Scott Yundt, who facilitates the Tri-Valley CAREs sick worker support group, said, "We seek to ensure that future workers are not contaminated, and that Livermore Lab workers already exposed to beryllium are compensated for their illnesses."

The Consent Order and cover letter can be found on our website at:

Bio-Suit Goes to the Ninth Circuit Court

by Scott Yundt from Tri-Valley CAREs' November/December 2010 newsletter, Citizen's Watch

On November 18, Tri-Valley CAREs filed its notice of appeal of a recent District Court decision denying the group's challenge to a dangerous, one-of-a-kind bio-warfare agent research facility, located at the Livermore Lab main site.

Tri-Valley CAREs sued in 2008 under the National Environmental Policy Act (NEPA). The lawsuit requested that the District Court compel the Dept. of Energy (DOE) to produce a thorough review of the potential environmental impacts of a terrorist attack on the Lab's bio-warfare research facility, as had been ordered in 2006 by the Ninth Circuit Court of Appeals in the group's prior lawsuit against the facility.

The facility has a bio-safety level 3 designation (BSL-3) and is authorized to store and experiment with up to 50 liters of deadly pathogens.

Scott Yundt, Staff Attorney at Tri-Valley CAREs, said, "The Ninth Circuit gave clear orders to the DOE in 2006 that additional analysis of the threat of terrorism was needed for this facility's environmental review in order to comply with the law. The DOE failed to do any meaningful additional analysis, releasing instead a warmed-over version of the same document the Ninth Circuit had deemed inadequate. This is why Tri-Valley CAREs filed a new suit in 2008 and why we going back to the Ninth Circuit now."

Yundt added, "I am disappointed that the lower District Court did not compel the necessary thoroughgoing review. Despite this adverse ruling, I am confident we will prevail on appeal. The DOE has not fully complied with the Ninth Circuit's original request."

"We have a moral as well as a legal obligation to protect the health and environment of Livermore and the Bay Area," said Marylia Kelley, Executive Director of Tri-Valley CAREs. "If a release occurs, thousands of Lab workers and community members could be exposed to deadly bioagents."

Kelley continued, "We are fully committed to following through with this challenge to the operation of the BSL-3, which the Lab admits will be used to genetically modify and aerosolize (spray) deadly pathogens on up to 100 small animals at a tome. We at Tri-Valley CAREs believe that, at a minimum, a full Environmental Impact Statement and public hearings are warranted."

Tri-Valley CAREs initially filed litigation against Livermore Lab's bio-warfare agent research facility in 2003. Then, as now, we were challenging the DOE's shoddy analysis under NEPA, which requires federal agencies to adequately consider the environmental impacts of major projects before taking further action. It is notable that the District Court judge who issued this recent adverse decision is the same judge who also denied all of Tri-Valley CAREs' claims in the 2003 suit.

However, Tri-Valley CAREs appealed that judge's earlier decision and prevailed in the Ninth Circuit Court of Appeals when the 3-member appellate panel ruled in our favor in 2006, stating that the DOE's environmental review had failed to properly consider the threat of terrorism at the facility and the potential impacts associated with a terrorist attack.

In that precedent setting 2006 ruling, the Ninth Circuit ordered DOE to revise its prior inadequate review to analyze the threat of a terrorist act at the bio-facility. The Ninth Circuit also specified that DOE should consider whether the potential impacts of a terrorist attack necessitated the preparation of a full Environmental Impact Statement and public hearings.

In response to the Ninth Circuit's order, DOE issued a Final Revised Environmental Assessment (FREA). The FREA, like its predecessor document struck down by the appellate court, again concluded that there would not be any significant impact to the environment in the event of a terrorist attack and that an Environmental Impact Statement and public hearings were not needed.

One of the glaring inadequacies of the FREA was its failure to explain the details of a Livermore Lab anthrax accident that resulted from a security breach when an unauthorized, former employee gained access to, and then, unsupervised, improperly packaged more than 6,400 anthrax samples that were shipped across the country. In this incident, five workers were exposed.

The Lab kept the details of its anthrax incident secret until after the FREA had become final, thereby denying the public any opportunity to comment on the accident's relevance to the new BSL-3. (Note: the anthrax was shipped from the Lab's lower-level, less hazardous existing bio-facility, opening the question of what types of accidents might happen in the much more lethal BSL-3.)

It was at this point in 2008 that DOE gave Livermore Lab the go-ahead to operate the BSL-3, and Tri-Valley CAREs filed its second lawsuit in the District Court asking the judge to uphold the higher, appellate court's 2006 decision.

Despite the anthrax accident and others, the District Court again concluded that the DOE need not undertake additional analysis to meet the standards of NEPA.

Yundt concluded, "Forcing the DOE to take a 'hard look' at the potential environmental impacts of a terrorist attack on the bio-warfare research facility as required by law is meaningful to the community. Likewise, it is important because the Ninth Circuit's decision compelling DOE to consider the impacts of terrorism was precedent setting, and, therefore, the cursory review done by DOE must not be allowed to become the standard for future reviews by other federal agencies. By our action now, going back to the higher court, we hope to remedy this situation."

Nuclear Extortion by Any Other Name...

by Marylia Kelley from Tri-Valley CAREs' November/December 2010 newsletter, Citizen's Watch

Senator Jon Kyl (R-AZ) has been holding New START ratification, which requires a 2/3 vote of the Senate, hostage to increased funding for new nuclear bomb plants and new bombs. President Obama has already pledged (unwisely) to squander $80 billion to "modernize" the nuclear weapons complex over 10 years, and another $100 billion to "modernize" the weapons delivery systems.

Now, Kyl has upped the ante, On Nov. 17, the Senator announced that he will oppose bringing New START to the floor during the lame duck session, "due to unresolved issues related to START and 'modernization'."

Obama swiftly responded the following day, "And, based on our consultations with Senator Kyl, we've agreed to request an additional $4.1 billion over the next 5 years." (Wow, way to put Kyl in his place, Mr. President.)

What does it all mean? For Obama, it means he should wake up and realize that capitulation is not a strategy. For New START, it means that a modest treaty that should have been easy to ratify sits in limbo. For verification, it means no U.S. boots on the ground in Russia (and vise versa). For the "reset" of our two countries' relations, it means not yet (at best). And, for achieving a world free of nuclear weapons, it means we are heading in the wrong direction.

A peek into Obama's 12-page "updated" spending plan details just how fast and how far backwards we are pedaling.

It shows the Dept. of Energy National Nuclear Security Administration's annual nuclear weapons activities budget at $7 billion (for the current fiscal year) and climbing steadily each year to around $9 billion in 2016, and continuing still upward to a possible high of $9.8 billion in 2020.

The annual budget for the same programs had been hovering around $6.4 billion. Our analyses, posted to our website each year, show that the budgets levels could and should have been cut lower. So, if $6.4 billion is at least $2 billion more than is necessary for maintaining the existing nuclear weapons stockpile until it is dismantled, what should we call $7 billion, or $9 billion or higher? Obscene? Insane? Nuclear extortion? All of the above?

What can we do about it? For starters, we can call CA Senators Barbara Boxer and Dianne Feinstein at (202) 224-3121 and tell them to support the treaty but oppose new funding for nuclear bombs and bomb plants.

Further, we can take heart in the fact that the Constitution gives Congress the power to appropriate funds each year, meaning that no Administration can totally bind its hands with regard to future year budgets.

And, finally, we can heed the excellent old adage, "Don't get mad, get organized" by becoming more involved in stopping nuclear weapons. Keep on...

Alerts 4 U

from Tri-Valley CAREs' November/December 2010 newsletter, Citizen's Watch

Thursday, December 2

Letter to the Editor (writing party)
6:30 PM, Tri-Valley CAREs offices
2582 Old First St., Livermore
(925) 443-7148 for details

Write a letter to the editor of you favorite newspaper on the first Thursday of each month. The topic for December is transforming Livermore Lab to a "green lab." Our environmental science intern, David Tanouye, will share some of his research on the subject and offer handouts. And if you prefer to write a letter on a different topic, that's great too. Exercise your creative voice in a supportive atmosphere.

Thursday, December 9

Tri-Valley CAREs' annual volunteer and member appreciation party
5 PM - 8 PM (drop-in), our offices
2582 Old First St., Livermore
RSVP (925) 443-7148

We will have food, drinks and fun. All we need to complete our holiday party is YOU. (See invitation, below.)

Thursday, January 20

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

Make a New Year's resolution to become more active with Tri-Valley CAREs. We meet the third Thursday of each month (except for Dec.). Old-timers and new members alike are always welcome.

Your Invitation

from Tri-Valley CAREs' November/December 2010 newsletter, Citizen's Watch

YOU ARE INVITED to the Tri-Valley CAREs annual volunteer and member appreciation party.

Over the past year, each of our supporters has contributed toward our shared vision of a more just and peaceful world. Here's hoping you can join us for this FUN holiday party.

Thursday, December 9, 2010

5 PM - 8 PM (drop-in), our offices
2582 Old First St., Livermore
RSVP (925) 443-7148

Back to Citizen's Watch Index