UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FIRST DECLARATION OF GREGORY MELLO
IN SUPPORT OF PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE
TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

I, Gregory Mello, hereby declare as follows this 16th day of June, 1997:

1.  My education and experience previously have been presented to this Court in my affidavits appended to Plaintiffs' Motion for Preliminary Injunction.

2.  I will reply to defendants' declarations regarding alleged harm to national security should Plaintiffs' motion be granted to enjoin portions of the Department of Energy's (DOE's) Stockpile Stewardship and Management (SS&M) program.

National Security
3.  Overall, defendants' argument and supporting declarations regarding the potential harm to national security from plaintiffs' requested injunction are mistaken, for the following reasons, some of which are discussed at greater length below:

a.  Five declarants (William Cohen, Siegfried Hecker, Federico Peña, Paul Robinson, and Harold Smith) appear to have been misinformed about the scale of the proposed injunction and/or its likely duration, and base their comments either wholly or in substantial part on their mistaken impression that this injunction would affect all or most of the DOE's SS&M program. Should a final injunction be granted, some 18% of the proposed program, for a period unlikely to exceed one year, would be enjoined, and DOE would retain essentially all its current capabilities, in each programmatic area, during the period of the injunction.  A preliminary injunction would have an even smaller effect.

b.  Defendants' statements do not harmonize i) with technical facts made available by defendants in the administrative record, ii) with statements made subsequent to the Record of Decision (ROD) for this Programmatic Environmental Impact Statement (PEIS) by senior DOE officials and senior weapons scientists employed by defendants, or iii) with logic and common sense. 

c.  Defendants obscure the small historic role played by nuclear testing in maintenance of the arsenal, and gloss over the distinction between the nuclear and non-nuclear components of nuclear weapons and the certainty with which the latter -- which comprise over 90% of the parts in a weapon -- can be maintained under a test ban. 

d.  Defendants omit the many delays that have been and in some cases continue to be imposed on various elements of the SS&M program by the DOE itself. 

e.  Defendants do not mention that the proposed near-term construction of the Contained Firing Facility (CFF) will necessitate a significant delay of the experimental program at the Flash X-Ray (FXR) facility, currently the nation's most capable hydrodynamic testing facility, out of which the CFF would be made.  Postponing CFF construction until the Dual-Axis Radiographic Hydrotest Facility (DARHT), a superior facility, is on-line would prevent a hiatus in the DOE's hydrotesting program and therefore provide more, not less, data to the DOE. 

f.  Defendants do not mention that the DOE has been directed by Congress since 1989 to prepare for the reliable remanufacture of warheads after a nuclear test ban, or that, under the terms of the conditional testing moratorium imposed by Congress in 1992, DOE could subsequently find no safety or reliability reason to conduct a nuclear test. 

g.  Defendants' allegations are repetitive of ones made, and found to be without merit by the Court, in the 1994-1996 DARHT litigation, in which our organization was a plaintiff. 

h.  Defendants' allegations do not comport with the obvious opportunities for a more focused and economical nuclear weapons program that have been suggested by congressional analysts.  For example, see "Preserving the Nuclear Weapons Stockpile Under a Comprehensive Test Ban" (Congressional Budget Office, May 1997, Attachment A).  The authors of this report suggest that DOE's plan is far from the only viable one, and DOE's nuclear weapons mission might be accomplished in an simpler manner without harm to national security. 

i.  Defendants fail to point out that large-scale nuclear weapons activities have national security costs, as well as putative national security benefits; DOE's proposed program has never been evaluated as a whole for its potential diplomatic, arms control, and nonproliferation "fallout."  (See the affidavits of John Burroughs and Ted Taylor, both those written in support of plaintiff's motion and in reply to defendants' response, as well as the fourth affidavit of Christopher Paine in support of plaintiffs' motion for preliminary injunction.)

j.  Defendants' logic holds that a short-term injunction of some of the new elements of DOE's program could lead to a chain of events that could eventually cause DOE to be unable to correct an observed decrement in the reliability or safety of one or more types of nuclear weapons.  Defendants have never clarified how plaintiffs' proposed injunction would prevent them from replacing defective parts, except for pits.  Defendants then convert their postulated potential future event into an alleged actual current harm to national security by application of the psychological term "confidence."

k.  Defendants portray the security of the United States as hostage to the presence or absence of this "confidence," experienced primarily by laboratory managers who are government contractors with a structural conflict of interest. 

l.  Defendants identify maintenance of scientific employment as a central programmatic goal and therefore conflate national security with contractor funding. 

m.  Defendants, in their arguments for maintaining employment in certain programmatic areas that go to the question of possible harm from an injunction, assume that the programmatic choices they have made to support these areas are the only reasonable ones.  That is, their national security arguments are based on the same flawed reasoning that led defendants to create a PEIS analyzing only one alternative for stockpile stewardship.

n.  Defendants allege harm both to national security through imminent loss of employment in certain programs, as well as economic harm from the expense of paying staff during an injunction.  Staff will either stay and be paid or leave and not be paid.

o.  The profound criticism about the technical readiness and programmatic utility of the National Ignition Facility (NIF), the flagship of the SS&M program, that is just now being publicly expressed by very senior weapons scientists, in confirmation of plaintiffs' research and testimony in this case, points to the degree to which i) timely and effective peer review is nearly absent from the DOE's planning process, ii) political and financial considerations influence SS&M planning, iii) contrary views can be hidden from public and congressional notice by means of secrecy and organizational control, and iv) the importance of halting this project so that DOE can reassess its program priorities and avoid overfunding inertial confinement fusion (ICF) at the expense of activities more closely tied to maintaining the safety and reliability of the stockpile. 

Some of these errors and exaggerations will now be discussed in turn.

4.  The declarations of Messrs. Cohen, Hecker, Peña, Robinson, and Smith have in common a mischaracterization and exaggeration of both the scope and required length of plaintiffs' motion for preliminary and final injunction. 

a.  Carefully comparing plaintiffs' motion with the Department of Energy's (DOE's) Congressional Budget Request (CBR) for FY1998, Vol. I (the cover page of this voluminous document is attached as Attachment B), plaintiffs seek a preliminary and final injunction to enjoin at most 18% of the budget obligations in DOE's proposed SSM proposed program in that year, leaving the rest of the proposed program intact.  If any injunction were to last less than a full fiscal year the portion of the program enjoined would be correspondingly less.  One full year's injunction of all the program elements listed in plaintiffs' proposed order would amount to less than 2% of DOE's program over the coming decade, the planning horizon which Mr. Peña states (at 13.) is the critical one for capturing the expertise of retiring senior weapons designers.  In FY 1998, approximately 65% of DOE's stockpile stewardship program could continue uninterrupted, and 94% of its stockpile management program would likewise be unaffected, along with all its program direction and oversight funds.  Please refer to Table 1 and Table 2 on the following pages.

b.  Since DOE has already compiled most of the background data needed to rewrite its PEIS, a rewrite could be easily be accomplished within a year's time, and probably less.  After all, DOE wrote its substantial DARHT Final EIS from scratch in about eight months. 

5.  The declarations of senior Administration officials and laboratory directors contrast with previous statements made by them and their advisors.  Dr. Harold Smith provides an example:

I am pleased to report the stockpile today is safe, secure, reliable, and meets current military requirements.  We make that statement with confidence today and for the immediate future...Our stockpile is becoming safer and more reliable simply because we are retiring older weapons...Thus, we should enter the 21^st century with a modern, safe, and reliable stockpile consistent with the demands of START I and with anticipated military requirements.  (Harold Smith, March 15, 1994 to House Subcommittee on Energy and Water Development Appropriations, Energy and Water Development Appropriations for 1995, Part 6, pp. 413-414, also in SS&M PEIS Vol. IV, p. 2-154).

At the time that Dr. Smith made this statement -- typical of ones he and Dr. Victor Reis of the DOE made in their congressional testimony of the middle 1990s -- the nation had begun a nuclear testing moratorium that was widely and, as it turned out, correctly perceived as possibly leading without interruption to a permanent nuclear test ban.  Defendants' SS&M program had barely begun.  To the best of my knowledge, there is no information in the unclassified public record which would contradict Dr. Smith's earlier assessment of the condition of the stockpile.  Indeed,

Table 1:  Fiscal Scope of Plaintiffs' Requested Injunction,

Should It Last As Long As One Full Year (FY1998)

Source:  DOE, FY 1998 Congressional Budget Request.  Totals were computed from the sum of proposed program funding and, for capital projects, all FY 1998 proposed obligations.

The PEIS says that "the stockpile is currently judged to be safe and reliable by the DOE." (PEIS, Vol. I, p. 2-3)  If the court is presented with classified evidence of stockpile defects, the pertinent questions include 1) whether the defect, if uncorrected, would affect U.S. national security;  2) whether the facilities to be enjoined are required to design and certify a repair for this defect;  and 3) when this repair and certification would be complete if no injunction were to occur.

6.  While Dr. Smith's statement was very general and occurred three years ago, other more detailed and recent statements are also to be found in the public record.  In 1995 DOE assembled, under the aegis of JASON, a very prestigious group of fourteen former senior weapons designers and other senior physicists to evaluate the ability of the United States to maintain the nuclear arsenal indefinitely in a comprehensive test ban treaty (CTBT).  JASON is DOE's senior external advisory group on technical issues related to nuclear weapons.  To this end, JASON analyzed in detail the development history and physics of all the weapons in the enduring U.S. stockpile.  In August 1995, JASON concluded: 

The United States can, today, have high confidence in the safety, reliability, and performance margins of the nuclear weapons that are designated to remain in the enduring stockpile.  This confidence is based on understanding gained from 50 years of experience and analysis of more than 1000 nuclear tests, including the results of approximately 150 nuclear tests of modern types in the past 20 years...The individual weapon types in the enduring stockpile have a range of performance margins, all of which we judge to be adequate at this time.  In each case we have identified opportunities for further enhancing their performance margins by means that are straightforward and can be incorporated with deliberate speed during scheduled maintenance or remanufacturing activities.

JASON, (Drell, et. al.) Nuclear Testing, Summary and Conclusions, 1995 (The Mitre Corporation, McLean, VA, emphasis added).  (Attachment C)

7.  Nuclear weapons are made of components, each of which has a useful life.  The components external to the nuclear explosive itself, which comprise in excess of 90% of the total number of parts in the weapon, can all be fully functionally tested -- individually, as subsystems, and as a complete weapon in fully-instrumented, high-fidelity flight tests -- at any time, and replaced as needed with either remanufactured copies or fully-tested updated designs, whichever is desired.  As the PEIS puts it:

For nonnuclear components, a significant amount of functional test data is acquired during manufacture and is then used to begin building a statistical estimate of component reliability.  Subsequent laboratory and flight testing in the surveillance program accumulates additional data that include the effects of aging and exposure to stockpile environments.  Thus, over time, high confidence in the safety and reliability of nonnuclear components and subsystems can be established. (PEIS Summary, p. 19)

The remaining components -- those in the nuclear explosive itself -- can likewise can be and are replaced when and if they need to be. While the circumstances and ease of their replacement are a matter of technical debate, the fact that they can be replaced is not.  A weapon, and the "physics package" within a weapon, are made of component parts, each of which has a service life. The weapon itself -- the assembly of these parts -- has no fixed life. This reality was expressed in the first sentences of a Sandia National Laboratory (SNL) report on nuclear weapon longevity commissioned by former Secretary Watkins:

It is clear that, although nuclear weapons age, they do not wear out; they last as long as the nuclear weapons community (DoD and DOE) desires.  In fact, we can find no example of a nuclear weapon retirement where age was ever a major factor in the retirement decision... 
"Stockpile Life Study," Sandia National Laboratory, December 1993.  (Attachment D)

This contrasts with Defendants' declarations, which are replete with references to a putative "design life" of nuclear weapons -- an idea which, as will be shown in 8. below, is undercut by the PEIS and its supporting documents. 

8.  It is, then, the stewardship and management of the nuclear components only -- principally the surveillance and remanufacture as needed -- which may have changed or may need to change under a CTBT.  (Surveillance and remanufacture are primarily stockpile management programs, largely untouched by plaintiffs' proposed injunction.)  This stewardship and management is discussed in two DOE reports written "in support" of the PEIS (PEIS, Vol. IV, p. 3-107).  These reports are the "Stockpile Stewardship and Management Alternatives Report" and the "Analysis of Stockpile Management Alternatives Report," both released by DOE in final form in July 1996, and are in the Administrative Record of this case (which is not available to me as of this writing).  They contain useful information regarding the degree of imminent harm that could, in the worst case, occur to stockpile safety and reliability in the event plaintiffs' injunction were granted. 

Most nuclear weapons in the stockpile were designed for a minimum lifetime of 20 years.  However, experience indicates that weapons can remain in the stockpile well beyond their minimum design lifetime.  Two nuclear weapon systems remained in the stockpile for more than 30 years.  ("Analysis of Stockpile Management Alternatives," p. 7-8)

Known aging effects of high explosive components results in an estimated stockpile life of 30 to 40 years based on current understanding high explosives aging.  (Ibid., p. 7-11)

No age related problem has been observed in pits up to 30 years in age, though very little data exists for pits older than 25 years.  In addition, no age related problem is expected until well past the START II implementation date.  (Ibid., p. 7-12)

Nuclear components (pits and secondaries are expected to have service lives significantly in excess of their minimum design life of twenty to twenty-five years.  (Ibid., p. 7-17)

Only replacement of pits destroyed in routine surveillance testing is expected until a near term life limiting phenomenon is observed in stockpile pits.  Most pit requirements during weapon refurbishment are expected to be satisfied by requalification and reuse of existing pits since historical pit surveillance data and pit life studies do not predict a near-term problem.  ("Stockpile Management Preferred Alternatives Report," p. 12)

A comment made in the PEIS is also pertinent:

Modern nuclear weapons are designed with a minimum design life of 20 to 25 years.  Based on existing surveillance data, DOE expects the pits to last at least this long, and probably considerably longer.  However, very little historical and applicable data exists beyond 30 years.  With regard to the buildup of decay products alone, DOE does not currently believe this will become a problem in less than 50 years.  Other combined effects (radioactive and chemical) are not as well understood.  Science-based stockpile stewardship, and enhanced surveillance technology in particular, will focus on the predictive capability in this area.  (PEIS, Vol. IV, p. 3-84)

9.  The situation is summed up by Richard Garwin, a frequent consultant to the DOE and member of JASON sufficiently prominent to be personally quoted in DOE's ROD for this PEIS: 

In reality, it is exceedingly rare to find an age-related defect in the weapons of relatively modern design that constitute the enduring stockpile.  Nevertheless, if centuries go by, problems will surely arise, if only because one percent of the plutonium decays in 400 years, leading to substantial pressure from helium gas within the metal."  (Richard Garwin, "Stewardship:  Don't claim too much or too little," Bulletin of the Atomic Scientists, May/June 1997, pp. 21-24.) (Attachment E)

It is worthwhile citing Dr. Garwin's expert views at some length for the light they shed on the issue of possible harm to national security that defendants raise.

For more than 20 years I have been advising presidents and the nuclear weapons establishment that, if desired, our nuclear weapons stockpile could be maintained reliable and safe for decades, or even centuries, by technical surveillance and occasional remanufacturing to original specifications, without the need for nuclear explosion testing. That is still my view.

...

The other arm of maintaining a reliable stockpile is remanufacture.  All agree that a weapon that is remanufactured so that the replacement parts are within the range of those originally manufactured will function just like a brand new weapon.

...

Using an approach of assiduous surveillance and remanufacture, each of the five nuclear weapon states could maintain a reliable and safe nuclear stockpile without advancing their understanding of nuclear weaponry and without major investment in more advanced facilities than they already have.

...

I favor improving the experimental and computational capabilities of the nuclear weapon laboratories, but it is wrong to link massive facilities in a do-or-die fashion with maintaining a safe and reliable nuclear stockpile.  And it seems positively shortsighted to justify NIF on the basis that the successful demonstration of "ignition" in tiny pellets of deuterium-tritium gas would enhance worldwide respect for, and the credibility of, the U.S. nuclear weapons program.  Shortsighted, that is, without recognizing that the failure to achieve ignition in tiny pellets (which has nothing to do with the nuclear weapon program of the United States or of the stockpile-related activities of NIF) would by the same claimed linkage impair the credibility of the U.S. weapon program.

...

But the credibility of our nuclear weaponry and development capability will not stand or fall on whether the United States has an Advanced Hydrotest Facility (with eight radiographic views and 20 images) or relies on the Dual Axis Radiographic Hydrotest Facility (DARHT), with two views and perhaps six images of imploding weapon-like configurations.

...

NIF is "scientifically valuable," but not primarily for nuclear weapon work....NIF should not be justified as contributing directly to nuclear weapon design capability, nor to maintaining the enduring stockpile...Beyond the credibility problem that is likely to arise from linking stockpile credibility with the achievement of "ignition" in the NIF, the diversion of management attention to advanced facilities could cause the core mission of maintaining a safe and reliable nuclear stockpile to suffer - especially because any overrun in facility cost is likely to add enormous pressure.

...

The core function of the Stockpile Surveillance and Management Program is the continuation of the Stockpile Evaluation Program, paired with a capability to modernize non-nuclear components in a cost-effective fashion and remanufacture nuclear components to be within the original production range.

...

As long as the United States has nuclear weapons, it needs a Stockpile Stewardship and Management Program to insure those weapons are safe and will continue to perform as required.  Surveillance and remanufacture are the bedrock of the program, and a rational and thorough program will insure that the United States retains a high level of competence in the nuclear weapons field.

10.  The only remanufacturing capability that would be affected by plaintiffs' proposed injunction is that for "pits," the core of the fission primary (the trigger or first stage) in a thermonuclear weapon.  Note that plaintiffs' proposed injunction does not extend to the Pit Rebuild Program, designed to retain and develop the capability to make War Reserve (WR) quality pits while replacing pits destroyed during routine surveillance.

11.  Although defendants claim that national security would be harmed by an injunction against pit production-related upgrades, the DOE did not request funds for such work in FY1998.  As then-senior DOE official Madelyn Creedon said concerning the capability to sustain pit production in 2003, it's a "long-term issue," and noted that the United States faces no shortage of pits.  (Ralph Vartebedian, "LANL: Funds Short for Bomb Work," Los Angeles Times, 2/19/97) (Attachment F).  Dr. Sidney Drell, a prominent member of JASON and a consultant to DOE on weapons issues, said in the same article that the Energy Department had achieved a "healthy stable budget," and he was, Vartebedian said, "taken aback" by Cunningham's [LANL's] estimates.  According to a subsequent Albuquerque Journal article (Ian Hoffman, "DOE Says Lab Can Meet Pit Schedule," 2/22/97) (Attachment G), the reasons no request was made were 1) the administration hasn't fully reviewed the lab's designs and cost estimates for the renovations, and 2) the administration is not certain of precisely how many pits are needed and when. Creedon:  "It's not really clear when we need the capacity.  We'll just have to figure out what we're doing with (disarmament treaties) and what weapons need pits and so on." The Journal went on: 

She [Creedon] suggested that weapons laboratories are trying the same tactics which persuaded Congress last year to increase their funding by $200 million over the administration's request.  "If you ask for $100 and you get $95, then you complain about the five," Creedon said.  For two years, DOE officials have insisted making new pits by 2003 is a key national security consideration, intended to allay fears that the nation's nuclear deterrence is fading with the growing age of its weapons stockpile.  Now, said Creedon, it's unclear whether being able to produce new pits will be necessary until 2004 or 2005.  "It's kind of hard to read the tea leaves on where 2005 is going," she said, "The world does change, as we've seen."

12.  Although defendants allege imminent harm to national security if an injunction is granted, defendants have themselves delayed many of these projects.

a.  NIF:  Defendants have themselves delayed this project.  The completion date of 3^rd quarter FY 2002 has been changed to 3^rd quarter FY 2003.  The one year slip in schedule (and associated total estimated cost increase of $50,000,000) is the tradeoff for a project funding profile that is consistent with estimated outlays for Defense Programs in FY 1998 and the outyears.  (DOE FY1998 Congressional Budget Request, Vol. 1, p. 130)

And after the ROD in December 1996, groundbreaking did not commence right away; in fact it wasn't planned to proceed until May 1997.  Defendants' assertions that major construction cannot proceed in winter in the San Francisco area are not credible. 

b.  Subcritical Experiments: Originally scheduled for June, 1996, the experiments were delayed for one year by the DOE for reasons under its control until June, 1997.  In any case, JASON has advised the DOE regarding the lack of urgency for these experiments:

There is no claim that the data from these experiments are needed immediately as part of the SBSSMP [science-based stockpile stewardship and management program] in order to retain confidence in the reliability and performance of the U.S. stockpile, but they are sensible ones to start with and there is merit in initiating them at existing facilities.  The experience gained will help guide the future SBSSMP SCE [subcritical experiments] program. (JASON, "Subcritical Experiments," March 7, 1997, p. 4) (Attachment H)

c.  Pit production and associated projects:  Defendants allege a national security crisis if plans for future pit production are temporarily enjoined.  Yet LANL has not been able to make a single WR-quality pit in the five years of the Pit Rebuild Program, from which any pit manufacturing mission must grow.  (Declaration of Albert Whiteman at 4.d(1)).  The DOE and predecessor agencies, as well as Los Alamos, have been making pits for decades.  The timing and success of the Pit Rebuild Program have been under the control of DOE, and DOE's slow pace has not engendered any apparent decline in national security.  Furthermore, capital projects necessary for supporting pit production, like the NMSF renovations, the CMIP (Capability Maintenance and Improvement Program), upgrades in static radiography, upgrades in the transportation system, and other necessary projects do not have completed preliminary designs.  As mentioned in 11. above, the DOE has not yet sought funds for any but conceptual design of pit-production upgrades (the CMIP project).  The NMSF project, deemed essential for pit production as well as for current missions, has been delayed almost 10 years.  The building was completed in 1987, but was unusable due to severe design and construction errors and has remained so until today.  A project to remedy these errors is underway, but a final design has not been approved. 

12.  This is not the first time that DOE has argued that substantial national security harm would accrue to the United States as a result of the delay engendered by an injunction requiring completion of an environmental impact statement.  In the DARHT case, Civil Action No. 94-1306 M, U.S.D.C. (D.N.M)("DARHT"), DOE argued that the "significantly longer delay of at least 11 months would seriously harm the national interest."  In Defendants' Opposition to Plaintiffs" Motion for Preliminary Injunction," at p.19. DOE claimed that as a result of the imposition of delay until completion of the required EIS, "the critical information to be derived from these baseline experiments will not be available when these nuclear weapons age beyond their intended lifetime.  After that point, safety and reliability concerns become increasingly serious" (Ibid, p. 26).  DOE claimed that "delaying DARHT during this pivotal period could undermine confidence in relying upon hydrodynamic-based stewardship, thereby adversely affecting negotiations for the Comprehensive Test Ban Treaty." Id.

In the DARHT matter, the Court found that these arguments were without merit.  Both the preliminary and permanent injunction were granted, requiring Defendant to complete the EIS before furthering the construction of the project.  There is no evidence that the legally required delay had any negative impact on the effectiveness of the project or on the relevant treaty negotiations.  On the contrary, the delay occasioned a re-design of the second axis of the project, allowing scientists to capture new technologies that have become available since the original DARHT design was frozen. 

13.  Further discussion of the remaining issues outlined above must wait until more time is available.

I declare under penalty of perjury that the foregoing is true and correct.  Executed this 31st day of March, 1997 at Santa Fe, New Mexico.
___________________________

Gregory Mello