Press Room

LIVERMORE - This morning, Livermore based non-profit Tri-Valley CAREs filed a motion for summary judgment in the Northern District of California under the National Environmental Policy Act (NEPA) aiming to stop the operation of a bio-warfare agent research facility at the Lawrence Livermore National Lab (LLNL) main site in Livermore, California. 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.

LLNL BSL-3 Facility

The Motion describes details of the LLNL BSL-3 facility that Tri-Valley CAREs obtained through Freedom of Information Act requests. Biological research projects are conducted “involving indigenous or exotic agents which may cause serious or potentially lethal or debilitating effects on humans, plants, and animal hosts...”  In addition, the LLNL BSL-3 facility has the capacity to culture life-threatening bioagents including, but not limited to, the select agents anthrax, plague, botulism, Valley Fever, Brucellosis, tularemia, and Q Fever.  The facility may contain a significant amount of such material that, if released as the result of an intentional act, could have a catastrophic impact on public health.

Legal Background

Tri-Valley CAREs has pressed for a full environmental review for the Livermore Lab BSL-3 facility since it was proposed in 2002. In December 2002, NNSA issued the Final Environmental Assessment (“FEA”) and FONSI for the BSL-3 facility, which authorized construction and operation of the facility.  On September 16, 2003, Tri-Valley CAREs filed a lawsuit in federal district court in San Francisco challenging the adequacy of the FEA and FONSI for the LLNL BSL-3 facility.  Surprisingly, the Court found the FEA and FONSI to be adequate. 

However, on appeal, the United States Court of Appeals for the Ninth Circuit ruled that LLNL had to go back and analyze the health and environmental impacts of a terrorist attack on the Livermore BSL-3, which it utterly had failed to do.  In response to the Ninth Circuit’s ruling, on January 25, 2008, Defendants simultaneously issued a Final Revised Environmental Assessment (“FREA”) and the Revised FONSI for the BSL-3 facility, again determining that a full EIS was not required. 

Violations

The 2008 FREA, however, is both incomplete and misleading, and was not circulated for comment, in violation of the law.  Additionally, it came to light that in August-September 2005, while the first lawsuit filed by Tri-Valley CAREs was pending in the Ninth Circuit, LLNL was responsible for an anthrax release.  However, Defendants failed to disclose important details about the LLNL anthrax release in the January 2008 FREA.  Further, the information that Defendants did disclose in the FREA was not made available to public officials and citizens before the BSL-3 facility became operational, in violation of NEPA.

In another incident which reflects on security and management issues at LLNL, inspectors from Center for Disease Control discovered on August 30, 2005 that LLNL had been conducting “restricted experiments,” in violation of the select agent regulations.  LLNL failed to disclose that they had been conducting these “restricted experiments,” and that they had been substantially fined for doing so.

Continued Inadequacy of Analysis of Catastrophic Event

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 from either an internal or external source. As stated, the Ninth Circuit Court of Appeals ordered LLNL to do a more thorough review of this terrorist threat in the revised environmental review. However, LLNL flaunted both science and the law to again 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 LLNL. As noted, Tri-Valley CAREs' lawsuit asks the Court to set aside LLNL’s unsupported conclusion and compel them to conduct a more rigorous analysis.

Relief Requested

Because LLNL deliberately withheld important information from the public in violation of NEPA, LLNL must further revise the document and make it available to public officials and citizens for comment.  Tri-Valley CAREs seeks an order from the court that vacates the FREA and FONSI for the LLNL BSL-3 facility, directs LLNL to complete an Environmental Impact Statement (“EIS”) (or, alternatively, an adequate EA), and enjoins continued operation of the facility until such time as Defendants comply with the mandatory requirements of NEPA.