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FOUNDATION v. WEINBERGER

May 31, 1985

FOUNDATION ON ECONOMIC TRENDS, et al., Plaintiffs,
v.
CASPAR W. WEINBERGER, et al., Defendants



The opinion of the court was delivered by: GREEN

 For the reasons set forth below, the Court concludes that the defendants' Finding of No Significant Impact and accompanying Environmental Assessment do not meet the carefully delineated standards of review established by this Circuit. Accordingly, the plaintiffs' request for permanent injunctive relief is granted, with modifications.

 I. Factual Background and Parties' Contentions

 A.

 The Dugway Proving Ground, located 87 miles southwest of Salt Lake City, Utah, is a Department of Defense (DOD) installation that is operated by the United States Army. The primary purpose of the Dugway installation is to test and assess the "military value of chemical warfare and biological defense systems." Defendants' Memorandum at 4.

 Dugway was officially established as a test facility by President Franklin Delano Roosevelt in 1942. The first biological facilities were built in 1943. Since that time, Dugway has grown from approximately 126,000 acres in size to approximately 840,000 acres. The facility is flanked by the 22,000-acre Utah Test and Training Center, and by substantial open lands held under the control of the Bureau of Land Management. Currently the installation contains a variety of chemical and biological testing laboratories, as well as extensive support and storage facilities.

 During the 1970's, parts of the Dugway facility fell into disuse and disrepair. The deterioration of the installation was the direct result of executive decision, made at the highest level of government, to "de-emphasize" the use of chemical and biological warfare in possible future armed conflicts. *fn2" Reduced funding left Dugway operating only at "minimum core capability" for biological defense testing. Plaintiffs' Mem. at 3.

 Beginning in 1983, however, the government expressed new concerns over alleged violations by the Soviet Union of the 1972 Convention. Convinced that "the Soviet Union has maintained its offensive biological warfare program and that it is exploring genetic engineering to expand [the] program's scope", *fn3" the Department of Defense in 1984 sought Congressional approval for the "reprogramming" of $8.4 million in previously appropriated military construction funds to renovate and expand the facilities at Dugway. See letter of Nov. 20, 1984, Caspar W. Weinberger (Secretary of Defense) to James R. Sasser (U.S. Senator and Ranking Minority Member, Subcommittee on Military Construction, Committee on Appropriations), App. to Plaintiff's Mem. Of the $8.4 million, $1.4 million was requested for the construction of a new Aerosol Toxin Test Laboratory, and the remainder for the construction of Toxic Agent Test Support Facilities.

 According to the Department of Defense, the purpose of the Dugway modernization would not be to develop offensive biological weaponry, but merely to "develop and field adequate biological and toxin protection":

 
The Department of Defense has directed the modernization of Dugway Proving Ground to be able to test adequately whether our military equipment meets the threats posed by Soviet chemical and biological warfare capabilities.
 
. . . .
 
Our development efforts in this area are driven by the Soviet threat. To ensure that our protective systems work, we must challenge them with known or suspected Soviet agents. We have the capability to do this with many chemical agents; however, the unique characteristics of biologicals require an even higher level of containment. Currently we do not have a test chamber large enough to hold and thus challenge realistically our protective items, such as detectors, filters, etc., with biologicals and toxins. The Dugway Proving Ground facilities are designed to meet this need.
 
Congress has not only consistently supported the development of biological, toxin, and chemical protective capabilities, but has often directed or encouraged the Department to do more in this area. Such support has included directly that nuclear, biological, and chemical (NBC) protection be provided for combat vehicles; approving research laboratories; and appropriating funds for the development and acquisition of NBC protective material. Dugway is the principal test facility for this material.

 Letter of Nov. 20, 1984, Caspar W. Weinberger to Senator Sasser, App. to Plaintiffs' Mem.

 The specifics of the DOD's modernization plan called for the construction of the new Aerosol Toxin Laboratory within an existing structure at a complex known at Dugway as the "Baker Laboratory". The proposed toxic agent support facilities were to be located eight miles from the Baker Laboratory. These facilities were not intended to support or service the Aerosol Toxin Laboratory.

 The Aerosol Toxin Laboratory was designed to meet the most stringent government safety standards. Because the Army expected "at some future date Dugway [might] be required to test materials that have been genetically altered," DOD planned the Laboratory as a "Biosafety Level 4" or "BL 4" facility. Declaration of Amoretta M. Hoeber, para. 8; Environmental Assessment at 1-3. That classification meant simply that the laboratory would satisfy the National Institutes of Health [Safety] Guidelines for Research Involving Recombinant DNA Molecules. See 48 Fed. Reg. 24556, 24571 (June 1, 1983), amended at 49 Fed. Reg. 46226, 46282 (Nov. 23, 1984). Only four such "BL 4" facilities currently exist in the United States, *fn4" and none existed at Dugway when the proposal was submitted to Congress. *fn5"

 According to the Army's plans, the new laboratory would have an aerosol chamber area of 400 square feet, and a total size of 1408 square feet. Safety features were designed to include pressurized air locks, a biowaste sterilization system, highly sophisticated air exhaust filtration systems, and pressurized suits with separate air supplies for personnel.

 In August 1984, DOD's request for reallocation of the $8.4 million was summarily approved as part of a larger $66 million "reprogramming" request. The funding requests were reviewed only by the chairman and ranking minority member of the Subcommittee on Military Construction. In accordance with 10 U.S.C. § 2804, the requests were approved without a formal vote, hearing, or debate.

 As required by law, the Army promptly prepared a Record of Environmental Consideration containing an Environmental Assessment, a Finding of No Significant Impact, comments submitted by interested parties on the Environmental Assessment, and the Army's own review and response to the comments submitted on the Environmental Assessment. The Environmental Assessment concluded that the proposed activity "should cause no significant impact on the quality of the human environment." Environmental Assessment at 12. That conclusion was based largely on the Army's own assertion that the new maximum containment laboratory would not be used to conduct testing experiments that differed in any significant manner from the experimentation currently being carried out at Dugway's BL 2 and BL 3 laboratories:

 
Work in such a [proposed BL4] laboratory would involve the 'conventional' threat agents. . . . None of these threat agents absolutely require BL 4 containment.
 
. . . .
 
No pathogenic [disease producing] fungi have been used in the present facility for years; no use at DPG [Dugway Proving Ground] is projected. No recombinant DNA or "genetic engineering" work has been done, and none is projected.

 Environmental Assessment at 1, 2. The central reason for building the new facility, the Army insisted, was to provide an "added margin of safety":

 
Expertise and facilities exist for testing with biological aerosols of pathogenic and non-pathogenic (simulant) microorganisms at the Biosafety Level (BL) 2 and BL 3. . . . However, much of the equipment and all of the facilities are over 30 years old. Frequent failures of the utility systems occur. Those involving the air and water systems have led to costly losses of instruments and tests, laboratory downtime and need for repairs. Although safety of personnel and the environment is not being compromised even under the current conditions, new equipment and instruments, and a BL 4 facility with modern features, would improve safety by providing state-of-the-art facilities and the latest in containment equipment, especially for tests with aerosols of pathogens in a chamber, and avoid the problems caused by the current inadequate building.

 Environmental Assessment at 1. As designed, the proposed aerosol facility posed no significant environmental hazard because, the Army pointed out, similar containment facilities had been built and run with success in other parts of the country.

 In December, 1984, one month before the Army submitted its Environmental Assessment and Finding of No Significant Impact, the plaintiffs filed a motion for preliminary injunction to enjoin construction of the proposed aerosol laboratory until NEPA's procedural requirements were met. The plaintiffs contended that the Army was required to "prepare an environmental impact statement under NEPA Section 102(2)(C), 42 ...


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