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Appeals court judge questions biodefense lab plan

By SCOTT LINDLAW, Associated Press Writer
San Francisco (AP)

A federal appeals judge said Tuesday she was troubled by a Bush administration plan to test lethal agents including plague and anthrax in the densely populated San Francisco Bay area.

But a Justice Department lawyer told the 9th U.S. Circuit Court of Appeals that research showed a biodefense lab at the Lawrence Livermore National Laboratory posed little disaster risk.

If pathogens were to escape from the lab — scheduled to open in August — they would disperse in concentrations so low they would be unlikely to harm anyone, attorney Todd Aagaard said in defense of the project.

Opponents sharply disagreed, saying even a small release could kill thousands. Attorney Stephan Volker said the government failed to consider the possibility that a plane or truck could sabotage the site 50 miles east of San Francisco.

The Bush administration has been preparing the biodefense lab for years, saying the facility — to be jointly used by the Departments of Energy and Homeland Security — is vital to national security.

The facility would test airborne agents such as hantavirus, influenza, hepatitis, Q fever, herpes and salmonella on animals.

Local residents have fought in court to seek a more rigorous assessment than the one the Department of Energy conducted in 2002, or a sweeping environmental impact statement, which could take months or years.

Volker said he would ask the court for an emergency motion preventing the facility from opening.

The facility would sit in a region of several earthquake faults, and opponents warned a temblor could release deadly agents in the densely populated region east of San Francisco.

The appeals court did not rule Tuesday, but Judge Mary Schroeder, the chief of the three-judge panel, questioned the wisdom of locating the facility in a region of 7 million people.

"I don't see in the analysis any discussion, anywhere, of what is the most troublesome thing," she told Aagaard. "This is being built in a very highly populated area of Northern California."

New Mexico, where a similar facility is in the planning stages, has a much lower population, she said. The Bush administration announced in November that it will conduct the kind of broad environmental impact statement at Los Alamos National Laboratory that the Lawrence Livermore project's opponents seek in California.

The administration cited the risk of earthquakes when it explained its decision to review the site more extensively in New Mexico. It decided against doing so at the Lawrence Livermore site.

Schroeder asked about the impact a terrorist incident would have on the Lawrence Livermore lab versus an attack on a similar facility in a low-population area.

Volker replied that it would make more sense to locate the lab in a remote area, possibly underground, where the government easily could scramble fighter jets to intercept a terrorist aircraft.

"These (steps) would seem pretty obvious in a post-9/11 world," Volker said.

Aagaard accused Volker of "blatantly misrepresenting" the government's efforts to assess risks. The administration studied the possibilities of a plane crash, fire and explosion and found the heat of a fire or explosion would render the pathogens "much more innocuous," he said.

It used U.S. Geological Survey research to apply a "once in a thousand years" earthquake test to the site, he said.

Population density was also taken into account in a "catastrophic release scenario," he said. The most dangerous pathogens are not durable or dangerous, and thus are unlikely to hurt people, he said.

As the lawyers jousted over their respective reviews, Schroeder told Volker: "We aren't here to nitpick factual" information in court documents. "We are here to determine whether (the administration) took a hard look" before moving ahead with the lab.

Volker cited a decision earlier this month by a different 9th Circuit panel blocking regulatory approval to store radioactive waste at a nuclear energy installation in Central California. The court ruled that regulators must first consider the likelihood of a terrorist attack.

Separately, Lawrence Livermore and the University of California recently expressed interest in hosting a second biodefense lab in nearby Tracy. It would test pathogens even more dangerous than the facility in question before the 9th Circuit.

The Department of Homeland Security is considering 29 bids and will announce its decision in September, a Bush administration official said Monday. It wants construction completed in 2012.

The case is Tri-Valley CARES v. Department of Energy, 04-17232.