Livermore Lab officials comment
on federal appeals court ruling

By Julia Cheever, Bay City News Service

October 16, 2006

SAN FRANCISCO (BCN) - A federal appeals court in San Francisco today ordered the U.S. Department of Energy to consider whether further study is needed of the environmental impact of a possible terrorist attack of a planned biodefense facility at the Lawrence Livermore National Laboratory.

The project, known as a "Biosafety Level 3" facility, will conduct research on how to detect and defend against biological warfare agents.

Lawyers for a citizens' group that sued the department said the ruling by the 9th U.S. Circuit Court of Appeals means the opening of the facility will be postponed until the agency completes action on the court's order. The department is the laboratory's parent agency.

Loulena Miles, a lawyer for Tri-Valley Communities Against a Radioactive Environment, or Tri-Valley CAREs, said, "The court is saying the facility can't operate without a thorough look at terrorism concerns."

"We definitely feel this is a win for the community and the Bay area," Miles said.

The facility had been scheduled to open no earlier than mid-November, according to laboratory spokesman Stephen Wampler.

The spokesman said that now, "The opening date is not determined." Wampler said, "We've just received the decision. The Department of Energy is studying the decision and considering the options available to the department."

A three-judge appeals panel wrote, "We remand for the Department of Energy to consider whether the threat of terrorist activity necessitates the preparation of an environmental impact statement."

But the court noted that the department has a number of options and said it was not prejudging which alternative the agency should choose.

Miles said the options could include preparing a full environmental impact statement or expanding a previous, less extensive environmental assessment.

Tri-Valley CAREs claims the earlier assessment failed to consider the possibility that a terrorist attack could destroy containment filters intended to prevent pathogens from escaping to the outside area.

The group contends that work at the facility could include research on airborne forms of anthrax, plague and botulism.

Wampler has said the agents to be studied at the facility will depend on what programs are funded by various government agencies. The laboratory has cited a Homeland Security Department scientist's statement that delaying the facility could endanger national security.

Stephan Volker, another lawyer for Tri-Valley CAREs, said, "We are pleased that the court agreed with us that Department of Energy had failed to address the obvious threat of terrorist attacks on this facility."

Volker said he hopes that any new study will include consideration of moving the biodefense facility to a less populated area.

The 9th Circuit panel set aside a ruling in which U.S. District Judge Saundra Armstrong of Oakland found the environmental assessment to be adequate.

The panel based its decision on a similar ruling the appeals court issued in June in a lawsuit filed by San Luis Obispo Mothers for Peace and the Sierra Club over Pacific Gas and Electric Co.'s Diablo Canyon Nuclear Power Plant in San Luis Obispo County.

In that case, the 9th Circuit ordered the Nuclear Regulatory Commission to reconsider whether a study is needed of the environmental impact of a possible terrorist attack on a planned spent fuel facility at the plant.

The appeals court turned down additional arguments in which Tri-Valley CAREs claimed the previous assessment had inadequately studied other possible dangers such as earthquake, fire and explosion.

The panel said that while Tri-Valley CAREs had raised "substantial concerns," the federal agency had taken the legally required "hard look" at the other issues before finding that they posed no significant environmental impact.

But in a footnote, the court expressed concern about possible earthquake hazards.

The footnote, referring to the "substantial concerns," commented, "We note in particular the Department of Energy's minimal assessment of earthquake risks despite the presence of known, active faults that run directly under nearby Berkeley/Alameda County, California."

The appeals court ruling came on the same day the laboratory announced that scientists there have discovered a new "superheavy" element, which will be number 118 on the periodic table of elements.

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