For immediate release April 6, 2022

Lawsuit seeks agency plans to accelerate production of nuclear warhead cores

Largest program in agency history is effectively secret -- and in trouble

Contact: Greg Mello, 505-265-1200 office, 505-577-8563 cell

Permalink * Prior press releases

Albuquerque, NM and Durango, CO -- Today the Los Alamos Study Group filed a lawsuit in the Federal District Court of Washington, DC under the Freedom of Information Act (FOIA) asking the federal government to release records unlawfully withheld in response to FOIA requests for documents.

Most of these documents concern the National Nuclear Security Administration's (NNSA's) crash program to produce additional plutonium cores for nuclear weapons, called "pits." Other documents requested include NNSA's evaluations of the contractors which perform approximately 98% of the agency's work.* (*For "98%," see the federal fraction of NNSA's spending in "Budget in Brief," March 30, 2022, p. 27).

The lawsuit:

• Addresses fourteen discrete FOIA requests that date back to December 2017, to which NNSA has failed to respond and produce responsive records;
• Requests specific documents, redacted as appropriate;
  
• Alleges NNSA has a pattern and/or practice of violating its FOIA duties in a manner that shields its activities and multi-billion-dollar plans from public scrutiny and Congressional oversight;
  
• Seeks not just the documents in question but also an order compelling future FOIA compliance by NNSA;
  
• Raises the question of whether the harms caused by NNSA's alleged violations should be remedied by enjoining further investments in the programs described in these hidden plans; and further; and
  
• Seeks a judicial finding that NNSA has unlawfully, arbitrarily, and/or capriciously withheld agency records and a consequent referral for administrative investigation, which under law must be followed by what corrective actions a Special Counsel may recommend.

Background

NNSA seeks to accelerate pit production by repurposing and dramatically expanding operations in an older plutonium research and development (R&D) facility at Los Alamos National Laboratory (LANL) while also completing a large new plutonium facility at the Savannah River Site (SRS) in South Carolina.

Pit production, currently expected to cost $30-$40 billion through 2033, is by far the largest program in NNSA's 23-year history and is the largest U.S. warhead-related program since the Cold War. Most of these costs are to be incurred at LANL.

NNSA is currently required by law to begin production of at least 30 "War Reserve" pits per year (ppy) by 2026 (at LANL) and at least 80 ppy by 2030 (at both sites; see p. x). NNSA now estimates it will reach 80 ppy sometime between 2032 and 2035; the goal of 30 ppy by 2026 is also in question (see "Los Alamos warhead "pit" production preparations begin dangerous 24/7 work in struggle to meet deadlines; STRATCOM: "unlimited money" would not be enough to meet 2030 deadline, Mar 10, 2022).

Given the admitted impossibility of current deadlines, statutory changes are likely. This occurred before, when the previous statutory pit production deadline was found impossible.

Congress authorizes and funds NNSA programs including pit production on an annual basis, but lacks timely access to independent analysis of this giant program. In every country, "megaprojects" such as this usually fail to meet project goals in the absence of independent, public vetting early in the project and other sound management practices.

In 2017 NNSA itself rejected what became its plan of using LANL's facilities for long-term pit production (pp. 47-48). Then in 2019 the Institute for Defense Analyses advised NNSA and DoD not to attempt round-the-clock production in LANL's facilities, which is the current plan.

In New Mexico, LANL pit production is the largest single capital project in the state's history, in fiscal terms. The attempt to conduct industrial pit production at LANL will have dramatic impacts across much of northern New Mexico, including on Native American lands bordering LANL.

Pit production was the mission of the former Rocky Flats Plant near Denver, the activities of which resulted in over 5,400 worker injuries and deaths compensated under the Energy Employees Occupational Illness Compensation Act (EEOICPA), as well as massive environmental contamination and unmeasured public health impacts. 

The U.S. nuclear warhead enterprise is almost fully privatized. NNSA's multi-year management and operating (M&O) contracts are among the larger contracts let by the federal government. The performance evaluations requested go the heart of NNSA performance overall. For background regarding a few of NNSA's unique features see "Structural Features Making NNSA an Unusual Federal Agency," White House memo for Vice President Biden, 2016 and "Competition - or Collusion? Privatization and Crony Capitalism in the Nuclear Weapons Complex" Los Alamos Study Group, May 30, 2006.

"NNSA has been flagrantly violating the Freedom of Information Act for years. In this litigation, we hope not only to drag these important documents into the sunshine of public and congressional scrutiny, but also to foster FOIA compliance at NNSA more broadly.

"What, after all, is NNSA hiding? Why doesn't NNSA want to discuss its plans openly, legally redacted as necessary?

"Plutonium pit production is the largest warhead-related program since the end of the Cold War. We believe most of these funds are being wasted. NNSA's bloated pit plan is competing not just with itself for key personnel, equipment, funds, and NNSA's limited management attention, but also with other NNSA programs.

"At LANL, pit production is being shoehorned into a plainly unsafe, nearly half-century old, inadequate facility that NNSA plans to run around the clock to make up for its lack of capacity. This will not end well. It may not even get off the ground.

"The Biden NNSA is poised to spend tens of billions of dollars on a project at Los Alamos that NNSA's own engineers and a congressionally-mandated independent review advised against. It is neither necessary nor prudent and it is not safe for workers.

"We believe NNSA is not being candid with congressional committees, the military, local jurisdictions, or the public about the necessity, costs, schedules, effectiveness, risks, and impacts of its evolving program to manufacture plutonium warhead cores.

"NNSA's program is admittedly struggling. To put it bluntly, the program is coming off the rails. In congressional testimony, the military is visibly angry. We want a principled, truthful discussion about this program right now, in public and in Congress, before more billions are squandered, more workers are hurt, and the environment is damaged further. For that to happen, NNSA has to reveal its plans as the law requires.

"One request in this litigation concerns LANL's waste management plan, which is of special interest to Congress, state government, and the public. Pit production creates a great deal of nuclear waste, the management of which takes priority over the removal and disposal of legacy Cold War waste at LANL."

Plaintiff is represented by Travis Stills, of Energy & Conservation Law, in Durango CO, and Maya Kane, of Southwest Water and Property Law LLC, in Durango CO.

***ENDS***