Tri-Valley CARES – 2011-03-12 03:12:22
TRI-VALLEY CAREs FILES OPENING BRIEF
IN APPEAL OF LOWER COURT RULING
TO ALLOW BIO-WARFARE RESEARCH AT LIVERMORE LAB
WITHOUT ADEQUATE STUDY OF RISKS POSED
BY TERRORIST ATTACK AND RELEASE OF PATHOGENS
Group Charges Multiple Violations of Law, Public Safety & Community Right to Know, Asks Ninth Circuit Court to Halt Operations, Compel Full Environmental Impact Statement
SAN FRANCISCO (March 11, 2011) — Today, Tri-Valley CAREs of Livermore, California filed an appeal to the Ninth Circuit Court of Appeals challenging a ruling from the US District Court of Northern California allowing the US Department of Energy (DOE) to continue operating a controversial bio-warfare agent facility at the Lawrence Livermore National Laboratory without proper environmental review.
The bio-warfare agent research facility, known as a Biosafety Level-3, or BSL-3, is for experiments with live anthrax, plague, Q fever and dozens of other exotic, potentially lethal pathogens. Some of these agents would be aerosolized for use on small animals (up to 100 at a time) to ascertain how effective the agents would be in killing humans. Further, the facility is authorized to conduct experiments with genetically modified biological agents of potentially novel virulence.
The Livermore Lab BSL-3 is housed in a portable building. According to DOE, the facility’s inventory may include up to 50-liters of bio-agents at any one time.
Tri-Valley CAREs’ Staff Attorney, Scott Yundt, noted, “We are challenging the Livermore Lab BSL-3 because the DOE failed to adequately analyze the potentially catastrophic consequences this facility could have on Livermore Lab workers and the surrounding Bay Area and Central Valley communities in the event of a act of sabotage or a terrorist act similar to the anthrax mailing attacks on the US House and Senate buildings in 2001.”
Yundt continued, “In Tri-Valley CAREs’ initial lawsuit against the facility, the Ninth Circuit Court of Appeals ordered DOE to go back to the drawing board to consider the impacts of a terrorist attack on human and environmental health, as required by the National Environmental Policy Act (NEPA).
The DOE did not comply with the Court’s order or NEPA. Instead, it offered a warmed-over version of its original, deficient analysis, claimed that there would be a low probability of an intentional incident, and began operating the facility. However, the same document acknowledged potentially great consequences of an act if it were to occur, but failed to analyze those consequences.”
Briefing on the case should be completed in April with a hearing to follow.
The group expects a decision that sets aside the lower court’s ruling and compels DOE to undertake a more in depth analysis in a full Environmental Impact Statement with public hearings. The group is also requesting that the Ninth Circuit suspend operation of the BSL-3 until such time as it can demonstrate compliance with the law.
Tri-Valley CAREs filed its most recent litigation over the facility in the district court on March 10, 2008. Judge Saundra Brown Armstrong ruled against Tri-Valley CAREs on September 30, 2010. The group filed its Notice of Appeal before the Ninth Circuit Court on November 18, 2010, and, today, filed its opening brief of 69 pages.
Copies of the group’s opening brief can be found at
Scott Yundt, Staff Attorney, Tri-Valley CAREs
Marylia Kelley, Executive Director
Tri-Valley CAREs, 2582 Old First Street, Livermore, CA, USA 94550
Ph: (925) 443-7148. Fx: (925) 443-0177. Web: www.trivalleycares.org
Email: firstname.lastname@example.org or email@example.com
SUMMARY OF ARGUMENT
Excerpted from Tri-Valley CAREs 87-page Legal Filing
In Tri Valley CAREs, this Court overturned DOEâ€™s decisions that refused to consider the potential environmental impacts of a terrorist attack that would include potentially lethal pathogens, aerosolization of deadly diseases and genetic modification of select agents. This Court remanded the case with the specific order that the DOE augment its NEPA analysis for the subject BSL-3 facility with an analysis of the threat of terrorism and its effects in accordance with the Court’s prior decision in Mothers for Peace, indicating that a full EIS could be required. 449 F.3d 1016.
On remand, DOEâ€™s minimal “revisions” to its NEPA analysis, which found without any cited new empirical study or in-depth analysis that “the threat of a successful terrorist act the LLNL BSL-3 Facility [was] very low,” failed to satisfy this Court’s Order and the directive of Mothers for Peace. Id.; 2ER1:61.
DOE reached the patently absurd conclusion that the potential environmental effects of an attack on the facility by an intentional actor or actors would be no more significant than those in the centrifuge accident scenario that it had already analyzed.
In reaching this conclusion, the agency illogically and illegally left out details regarding two serious incidents that had recently occurred at its facilities (the anthrax shipping incident and the restricted plague experiment violation), thereby depriving Tri-Valley CAREs and the public of the opportunity to comment on their relevance to the BSL-3â€™s security, the possibility of select agent transportation accidents, the potential impacts of novel, genetically modified bioweapon agents and the potential impacts of a terrorist attack, including by an insider.
In its haste to issue the RFONSI and begin operating the facility, DOE failed to take the “hard look” at the threat of a terrorist attack on the facility and the environmental impacts that may result from such an attack on the facility, thereby violating NEPA, and this Court’s specific Order. 42 U.S.C. Â§4321 et seq. 1ER24. It also failed to comply with its statutory duty to supplement and re-circulate its NEPA analysis with the missing relevant information for public comment.
Finally, Tri-Valley CAREs alleges that the district court erred by refusing to allow Tri-Valley CAREs to augment the administrative record for this case with NAS’s recent report, Evaluation of the Health and Safety Risks of the New USAMRIID High Containment Facilities at Fort Detrick, Maryland. 1ER6-7.
This report details the inadequacy of DOE’s strategy of using a centrifuge accident scenario as a surrogate for an intentional terrorist attack, and points out that the analysis fails to address numerous relevant
scenarios and factors. Id. Because the report demonstrates the DOE’s failure to consider relevant factors, it is an appropriate supplement to the Administrative Record now before this Court.
In light of these legal violations, Tri-Valley CAREs seeks an order vacating the FREA and RFONSI for the LLNL BSL-3 facility, and directing DOE to complete an EIS, or, at a bare minimum, reconsider whether an EIS is necessary. Alternatively, the Court should order DOE to prepare a supplement to the FREA, providing Tri-Valley CAREs, decision makers and the public with the opportunity to provide the meaningful public comments that they were previously denied.
1. The FREA’s Analysis Of Direct Terrorist Attacks Resulting In Loss Of Containment Is Inadequate
DOE failed to comply with this Courtâ€™s Order because its analysis of the environmental impacts that may result from a malicious act designed to breach containment at the LLNL BSL-3 facility is facially inadequate.
As this Court recognized in San Luis Obispo Mothers for Peace, Council on Environmental Quality (â€œCEQâ€) regulations for the implementation of NEPA require that an EIS must address “events with potentially catastrophic consequences ‘even if their probability of occurrence is low, provided that the analysis of impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.'” Id. at 1033 (quoting 40 C.F.R. Â§ 1502.22(b)(4)).
This Court also said that “[t]he [agency’s] actions in other contexts reveal that the agency does not view the risk of terrorist attacks to be insignificant. Precise quantification is therefore beside the point.” Id. at 1032.
Similarly, in many contexts the DOE reveals its view that the risks of terrorist attack on its facilities are not insignificant.5 DOE asserts that the likelihood of a catastrophic terror attack on the facility is “extremely low.” 2ER1:61. Yet, this Court made it clear in Mothers for Peace that “[p]recise quantification [of the risk of terrorist attacks is] besides the point.” 449 F.3d at 1032.
While remand in this case specifically asked for an analysis of “the risk of terrorism,” a finding of a low risk did not relieve DOE of its obligation to take the required “hard look” at the impacts of such attacks when, in other contexts; it acknowledges the fact that terrorist attacks are reasonably foreseeable. 2ER1:63, 68.
However, rather than complete a meaningful analysis of the impacts of a terrorist attack, DOE found that “the consequences of a malicious act designed to breach containment are bounded by the accidents and natural catastrophic events evaluated in the [original EA] because they would result in a similar loss of containment.” 2ER1:62.
Essentially, the “terrorism analysis” that DOE “prepared” in response to this Court’s Order is nothing more than a restatement of the original EA’s analysis of the consequences
5 Tri-Valley CAREs expert declarant, Peter Stockton, described the great lengths LLNL has gone to trying to protect itself from a terrorist attack.
Although those precautions often fail, they are illustrative of the agency view that LLNL is at risk and that great precautions must be taken to prevent significant harms that could occur. 1ER23.
that could be expected from an accidental and non-intentional act. 2ER1:106, 125.
In violation of NEPA, this conclusory finding is not supported by data in the FREA or the administrative record. See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 973 (9th Cir. 2006) (holding that “vague and conclusory statements, without any supporting data, do not constitute a ‘hard look’ at the environmental consequences of the action as required by NEPA”).
According to DOE’s own NEPA guidance, it is not appropriate to apply a methodology developed to assess the impact of an accident in the analysis of the potential consequences of acts of sabotage or terrorism where the potential sabotage or terrorist scenarios and the accident scenarios do not “involve similar physical initiating events or forces (e.g., fires, explosions, drops, punctures, aircraft crashes).” 6 2ER19:2; see also 2ER20:4.
Here, the accident scenario applied by DOE is a centrifuge accident involving a one-liter slurry of Coxiella burnetii. 2ER1:57….
Tri-Valley CAREs understands agency guidance is not legally binding; however, it is persuasive evidence that DOEâ€™s analysis was inadequate when it does not even follow its own guidance. Moreover, it calls into question assertions in the FREA that the “BSL-3 would be operated according to all guidance and requirements established by the CDC and NIH, DOE and LLNL.” 2ER1:20.
The FREA relies on this assertion to ensure safe operation, yet the agency flagrantly ignores its own guidance in the context of its NEPA analysis. 2ER1:44.
accidental failure to insert O-rings or tighten centrifuge caps properly on six vials of Coxiella burnetii in a free-standing centrifuge. Id.
In contrast, the physical initiating events or forces in potential sabotage or terrorist scenarios may include a suicidal plane crash, explosion, fire, damage to one or more of the facility’s containment features, or damage to the facility’s autoclaves, which are used to kill or sterilize microorganisms. 2ER1:19, 62, 100.1- 100.2, 105-106, 126; 2ER21:27-29 (identifying sabotage actions that may result in a loss of containment).
Since the physical initiating events or forces in these scenarios are not similar to the physical initiating event and forces associated with the accident scenario analyzed in the FREA, it was improper for DOE to apply the accident analysis to an analysis of the environmental impacts that may result from a malicious act designed to breach containment at the LLNL BSL-3 facility.
Moreover, according to DOEâ€™s guidance, “[e]ach EIS and EA should explicitly consider whether the accident scenarios are truly bounding of intentional destructive acts[,]” which DOE has not done in this case. 2ER19:2.
As specified above, DOE claims that â€œthe consequences of a malicious act designed to breach containment are bounded by the accidents and natural catastrophic events evaluated in the [FREA] because they would result in a similar loss of containment.â€ 2ER1:62 (emphasis added).
However, there is no evidence whatsoever in the administrative record that supports this assumption that is at the heart of the so-called terrorism analysis. DOE has misconstrued its own guidance, and the law. The FREA fails to give adequate consideration as to whether the accident scenario in the FREA is truly bounding of a malicious act designed to breach containment at the LLNL BSL-3 facility.
Finally, DOE’s claim that the consequences of a terrorist attack resulting in damage or destruction to the LLNL BSL-3 facility and a loss of containment are bounded by the accident scenario discussed above is not credible.
In contrast to the randomness of initiators associated with accidents, natural phenomena and other external events, a malevolent, intelligent initiator can determine where to place explosives or start fires and/or how to use site systems and equipment to deliberately initiate or exacerbate emergency events or conditions.
Such premeditated, even suicidal, malevolent events can maximize the impact of a release of hazardous material ranging from use-denial by contamination to serious harm to workers or the public.
1ER11 (emphasis in original).
Yet, DOE failed to analyze the potential environmental impacts of a terrorist attack that results in a greater loss of containment than the already mentioned centrifuge accident. See 2ER1:57, 60-69. An LLNL worker conducting an act of sabotage or an outside
terrorist could apply human intelligence to the initiating event in a specific and targeted effort to maximize the impact of a release of pathogenic material, beyond that analyzed in the loose caps on vials in the centrifuge scenario. 1ER11.
As a result of these deficiencies, the FREA failed to take a “hard look” at the environmental impacts that may result from a malicious act designed to breach containment. It is clear from the administrative record in this matter that DOE can, and does, distinguish between the consequences of accidental and intentional acts. See 2ER21:16-25 (analyzing aerosol release), 2ER21:27-29 (analyzing employee sabotage). And, it is equally clear that DOE failed to draw that distinction in the FREA, despite this Court’s clear and express Order to the contrary.
2. The FREA’s Analysis Of The Theft And Subsequent Release Of Pathogenic Material By A Terrorist From Outside LLNL Is Inadequate
DOEâ€™s analysis of the theft and subsequent release of pathogenic material by a terrorist from outside LLNL is also inadequate.
For site-specific actions, like the proposed operation of a BSL-3, the significance of any potential environmental impacts “usually depend[s] upon the effects in the locale rather than in the world as a whole.” 40 C.F.R. Â§1508.27(a).
Accordingly, DOE must analyze the significance of the proposed action in the context of the Livermore locale. See id. (the significance of an action must be analyzed in the context of the locality). However, according to the FREA, a malicious individual could already obtain pathogenic material by other methods under the No-Action (“status quo”).
Alternative, the presence of pathogenic agents in the proposed, highly secured BSL-3 facility would not pose any new or greater risk to human health or the environment from an outside terrorist or terrorists than already accrues without operation of the BSL-3 facility at LLNL. 2ER1:66.
This purported “analysis” plainly neglects to actually analyze the significance of the proposed action in the context of the Livermore locale, and instead relies on the presence of pathogenic material in nature and at other BSL-3 facilities throughout the country to justify its conclusion. 2ER1:65-66, 107, 127-128.7
Tri-Valley CAREs’ expert declarant, Mark Wheelis, Ph.d., countered the DOEâ€™s assertions regarding the “easy availability” of bio agents in nature, saying that because “different strains of a biological agent may have widely varying virulence… [a]nthrax strains isolated from natural veterinary outbreaks cannot be assumed to be highly lethal for humans. Furthermore, it is not a trivial task to isolate such pathogens from nature, although it is within the ability of many Ph.D.-level microbiologists.
Thus terrorists might find laboratories to be attractive sources, as they represent a source of known strains with demonstrated human virulence. For instance, the Vollum strain of anthrax was chosen for weaponization by the US offensive biological weapons program in the 1950s because of its lethality (later replaced with a derivative strain, Vollum 1B). The [FR]EA Appendix C at page 9 lists experiments with the Vollum strain as among those planned for the LLNL BSL-3. Therefore, the LLNL BSL-3 might be of particular interest to a terrorist.” 1ER22 and 2ER1:93, 133-136.
Here, any discussion of the various inadequacies of the NEPA documentation that DOE prepared must include a discussion of the historical and institutional failures of the agency to provide accurate and objective self-assessment of its security capability. 2ER1:108-109.
The recent, aforementioned GAO Report pointed out this failure loud and clear, even citing one DOE official who complained that LLNL’s security self- assessment program was “broken” and missed even the ‘low-hanging fruit’ of compliance-oriented deficiencies that LLNL must now take actions to correct.” 2ER1:15. It goes on to say that, “LLNL’s security self-assessment program was not comprehensive and individual assessments of security elements lacked the breadth and depth to provide management with information necessary to make meaningful decisions.” 2ER1:14.
The GAO Report loudly echoes Tri-Valley CAREsâ€™ recognition of DOEâ€™s inability to self-assess and failure to analyze its own security at LLNL in relation to a possible terrorist threat and its potential environmental and health impacts.
Additionally, the LLNL BSL-3 facility will house and conduct experiments with a large collection of agents used in bio-weapons, potentially including highly concentrated pathogens, genetically modified microorganisms and unidentified organisms used in bioterrorist attacks, and do so in close proximity to other workers and nearby residents in the City of Livermore and in the Greater San Francisco Bay Area. 2ER1:6, 11, 21, 40, 93-94, 104.
As such, it is clear that the facility poses a new and potentially greater risk to human health and the environment in the Livermore locale, regardless of the availability of some pathogenic materials in other locations. 2ER1:107. Because the FREA failed to adequately analyze this threat, DOE is in violation of NEPA. See Anderson v. Evans, 314 F.3d 1006, 1021 (9th Cir. 2002) (holding that an EIS was required because the EA did not adequately address local impacts).
3. The FREAâ€™s Analysis Of The Covert Theft And Subsequent Release Of Pathogenic Material By An LLNL Insider Is Inadequate
DOE failed to take a “hard look” at the environmental impacts that may result from the covert theft and subsequent release of pathogenic material by an insider with access to the LLNL BSL-3 facility.
According to the FREA, “dramatic human health impacts and economic disruption can result following the release of pathogenic materials[,]” yet DOE failed to analyze any scenarios involving the covert theft and subsequent release of pathogenic material by an LLNL insider. 2ER1:66-67, 107, 128.
DOE entirely skipped any analysis of several types of potential sabotage actions, which may include damage to one or more of the LLNL BSL-3 facilityâ€™s containment features, damage to the facility’s containment suite autoclaves, deliberate release of an infected animal, and deliberate self-infection with the intent to spread the pathogenic material within the environment. 2ER1:60-69.
However, two such scenarios were analyzed in the Final Programmatic Environmental Impact Statement for the U.S. Army’s Biological Defense Research Program (“BDRP FPEIS”), which is the NEPA analysis â€œconsidered most relevant to the Proposed Action[,]” according to the FREA. 2ER21:30-34; 2ER1:55. Such analyses serve the purpose of NEPA, which is “to require disclosure of relevant environmental considerations that were given a ‘hard look’ by the agency, and thereby to permit informed public comment on proposed action and any choices or alternatives that might be pursued with less environmental harm.” Lands Council v. Powell, 379 F.3d 738, 745 (9th Cir. 2004).
The FREA includes the same 2 page analysis, Covert Theft and Subsequent Release of a Pathogenic Material by an Insider with Access to the Facility, as the DREA, one page of which is spent describing the steps that would be necessary for an insider to successfully carry out a terrorist act at the BSL-3 similar to the 2001 Anthrax Mailing Attack on the U.S. House and Senate office buildings. 2ER2:32-33; 2ER1:66-67, 128. Despite the fact that the alleged perpetrator of the 2001 Anthrax attacks accomplished all of
these steps successfully, this information is provided ostensibly to convince the reader of the difficulty and low probability of such an event.
Then, a scant two paragraphs describe the Impacts of a Theft and Subsequent Release of a Pathogenic Material in which DOE acknowledges that “[a]s shown in 2001, dramatic human health impacts and economic disruption can result following the release of pathogenic materials… One could assume that tens of people could be infected and a few unsuspecting or untreated people might die… Taken to extremes, one can even postulate scenarios with catastrophic implications.” Id.
These vague and conclusory statements regarding the environmental impacts that may result from such a release do not satisfy the “hard look” required by NEPA. Under NEPA, an agency “must put forth a ‘convincing statement of reasons’ that explain why the project will impact the environment no more than insignificantly.” Ocean Advocates v. U.S. Army Corps of Engâ€™rs, 402 F.3d 846, 864 (9th Cir. 2005).
Here, DOE’s purported analysis contains no actual empirical analysis or study about the possible environmental impacts of the covert theft and subsequent release of pathogenic material by a LLNL insider. 2ER1:66.
In fact, its minimal statements appear to conclude that the potential impacts are “dramatic” and “possibly catastrophic,” which is precisely the kind of finding in an EA that would support completion of an EIS to determine just how significant an impact to the environment this scenario presents. Id.
Additionally, an EIS would require analysis of mitigation measures in accordance with this finding.8 Accordingly, DOE is in violation of NEPA. See Great Basin Mine Watch, 456 F.3d at 973; Ocean Advocates, 402 F.3d at 864 (an agency â€œcannot avoid preparing an EIS by making conclusory assertions that an activity will have only an insignificant impact on the environmentâ€).