August 4, 2008
U.S. Department of Homeland Security
Attn: James V. Johnson
Mail Stop #2100
245 Murray Lane, SW, Building 410
Washington, D.C. 20528
Re: Comments on the National Bio and Agro-Defense Facility Draft Environmental Impact Statement
Dear Mr. Johnson:
These comments are submitted on behalf of the Kentucky Resources Council concerning the Draft Environmental Impact Statement (DEIS) for the National Bio and Agro-Defense Facility. The Kentucky Resources Council, Inc. (KRC) is a non-profit, 501 (c)(3) tax-exempt organization that provides legal and technical assistance on environmental issues to individuals, community groups, and local governments throughout the Commonwealth of Kentucky. After a review of the DEIS, the Council offers the following comments:
- The DEIS is insufficient under the National Environmental Policy Act (NEPA) in that it fails to consider the environmental, health and public safety impacts of a release of each pathogen it proposes to study at the facility, as well as a concurrent release of all pathogens proposed for study. Regulations promulgated by the Council on Environmental Quality (CEQ) direct federal agencies, when preparing an environmental impact statement under NEPA, to provide a full and fair discussion of significant environmental impacts . . . . The regulations define effects (which are synonymous with impacts) to include both direct and indirect effects of the project, stating that indirect effects are caused by the action and occur later in time or farther in distance than direct effects, but are still reasonably foreseeable. Thus, the CEQ regulations require that in discussing direct and indirect effects of the proposed action, the agency must include a discussion of indirect effects of the action, including reasonably foreseeable effects.
In light of the requirements of NEPA, the Council is concerned that the Draft Environmental Impact Statement did not fully outline and address the reasonably foreseeable environmental impacts associated with this facility. In determining the probable environmental consequences of a pathogen release, the agency considered only three of the eight potential pathogens that the facility would initially study. While the agency reasoned that the pathogens considered in the analysis (Foot and Mouth Disease Virus (FMDV), Rift Valley Fever Virus (RVFV), and Nipah Virus) present the most significant and unique challenges compared to the other pathogens, this reasoning ignores the probable lesser impacts of the unstudied pathogens and dismisses these risks as contained within the risk factors of the three pathogens chosen for evaluation.
This analysis fails to account for the differences of the unstudied pathogens in the areas of host susceptibility to infection with the pathogen, the ability of the pathogen to cause impacts to livestock and wildlife, the ability of the pathogen to become geographically disseminated, and the ability of the pathogen to be transmitted in the unique settings of the six different sites chosen for evaluation; all areas the agency believes represent required knowledge and understanding in developing an adequate risk assessment. The agency also considers other factors in assessing the risk for zoonotic and non-zoonotic pathogens, such as whether the agent is endemic or foreign to the region, the pathogens ability to cause morbidity and mortality, the shedding patterns of the agent in relevant species, and whether an active control or eradication program exists for the disease. In failing to evaluate five of the eight potential pathogens to be studied at the proposed biocontainment facility, the agency would have us believe that the risks of infection or outbreaks of all the pathogens are the same, despite the fact that these key determinants of risk are answered differently depending on the pathogen at issue.
The agency is required to evaluate all reasonably foreseeable significant environmental impacts of the proposed facility. While the agency notes that FMDV, RVFV, and Nipah virus are the primary hazards associated with the proposed project, any pathogen requiring a biocontainment level of BSL-3 or BSL-4 is extremely hazardous in that it can cause death to humans, and at the BSL-4 level there is no treatment for pathogen infection. Failure to study the potential release of each and of various combinations of all eight pathogens makes the DEIS incomplete in terms of risk assessment because responses to a pathogen release would differ depending on the pathogen, since each pathogen is transmitted differently, through different hosts and vectors, each of which have unique characteristics and may or may not be present at the various proposed sites. Thus, by not studying five of the eight pathogens the DEIS fails to take into account the differences in disease treatment and containment should the pathogen spread, including differing emergency response and containment strategies. Finally, by failing to study the environmental impacts of each individual pathogen, the agency has not adequately identified the environmental effects of the proposed facility so that they can be compared with economic and technical analyses, as required by CEQ regulations.
Since 40 CFR 1502.1 directs that environmental impacts should be discussed in proportion to their significance, it seems that because the risk of a pathogen release is one of the most significant environmental impacts associated with the proposed development, that the environmental consequences of a pathogen release for each type of pathogen should be discussed. Since appropriate information is necessary for good decision making, it is unclear how an informed decision can be made in terms of whether to and/or where to site the proposed facility when the environmental, health and safety impacts of over half the pathogens to be studied at the facility are not fully addressed, especially in terms of how each unique pathogen would impact the unique environments of each proposed site.
As a result, the Council recommends that the agency fully evaluate the environmental impacts of each of the eight pathogens proposed to be studied at the facility independently, and (as noted below in #3) in various combinations to simulate a more significant failure of isolation or containment.
- The Draft Environmental Impact Statement does not comply with NEPA in that it fails to address the health and public safety impact of potential pathogens that will be studied at the facility in the future.
Because NEPA requires the draft environmental impact statement to include an analysis of all reasonably foreseeable environmental impacts, this draft environmental impact statement fails to comply with NEPA in that it does not address potential impacts of other pathogens the facility might study in the future. The study of other pathogens that may be evaluated at the facility in the future, and the release of other pathogens is a reasonably foreseeable environmental impact since the DEIS states, [a]s new diseases emerge and threaten U.S. livestock, additional risk assessments would be performed and the list of high-consequence diseases studied at NBAF could be changed. Although the DEIS notes that any new pathogens studied would be handled with the same degree of protection as the pathogens the facility plans to study, the environmental and socioeconomic impacts of these pathogens could be different than the impacts of the pathogens actually evaluated in the DEIS, depending on the types of animals affected, whether the pathogen is endemic to the area, the potential vectors, routes of transmission, etc.
While the Council recognizes that those preparing the DEIS could not possibly anticipate all the pathogens the facility could possibly study over its useful life, NEPA provides that where information is incomplete or unavailable, the agency should make clear that such information is lacking or unavailable. Additionally, while the agency cannot anticipate each and every pathogen it will study at the proposed facility, the agency should briefly summarize the estimated environmental impacts of pathogens that the agency believes it will most likely study in the future or impacts of the types of pathogens the facility anticipates studying.
It is not sufficient for the agency to prepare a supplemental EIS or Environmental Assessment in the future as it begins to study new pathogens, since the decision to site the facility at a certain place will have already been made and a supplemental EIS or EA will not likely affect that decision even where the introduction of a new pathogen might raise the incremental risk to a level that could have affected the initial siting decision. Failing to anticipate the environmental consequences of the study of other, possibly unknown, pathogens does not account for the direct, indirect, and cumulative impacts of those pathogens on the environment, and thus is not taken into account in the decisionmaking process now, when it could have a material effect on the initial siting decision or facility design. Deferring consideration of the effects of introduction of other pathogens until they are more firmly proposed for study at the facility, undermines the goals of NEPA of ensuring that planning and decisionmaking reflect environmental values and that prior to irretrievable commitment of resources, the full scope of effects and alternatives have been evaluated.
The Council recommends that the agency assess the possible environmental consequences of a release of anticipated pathogens the facility may study in the future, as this is a reasonably foreseeable environmental impact of the proposed facility. In the alternative, the Council suggests that the final EIS state that the information on potential pathogens the facility might study is unknown, in accordance with 40 CFR 1502.22, and that some additional increment of conservatism be built into the risk assessment to address this uncertainty.
- The DEIS fails to consider the environmental impacts of a release of multiple pathogens from the site at the same time.
By failing to study the environmental consequences of a release of each individual pathogen proposed for study at the facility, the agency is unequipped to determine the possible cumulative, synergistic or additive effects of a release of some or all of the pathogens studied in the facility in the event of a power failure, explosion, or other such incident.
In evaluating the impacts of a proposed federal action, the agency is required to evaluate the cumulative impact of its action, defined as the impact on the environment, which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. As such, the agency must consider not only isolated effects of different aspects of the action, but must consider the impacts of the action as a whole, as well as the contribution of other impacts not necessarily attributable to the proposed action, but reasonably foreseeable.
After evaluating the environmental impacts of each pathogen proposed to be studied at the facility, the Council recommends that the agency evaluate the cumulative impacts of a concurrent release of all pathogens from the facility, taking into account the unique characteristics and other impacting factors at each location.
Thank you for your consideration of these comments.
Liz D. Edmondson, Esq.
Edith and Barry Bingham Jr. Fellow