The courtroom drama was eerily similar to one more than a decade ago.
The government was defending its testing practices as harmless and saying the accusers hadn't "a shred of evidence" to prove the possibility of public harm.Former U.S. Sen. Frank E. Moss said the Army can't be trusted and its testing plans pose a danger to the public.
Presiding over the emotional hearing Monday was U.S. District Judge Bruce S. Jenkins, who ruled in 1984 that numerous southern Utahns suffered from cancer caused by fallout from the government's nuclear weapons testing in southern Nevada.
But atomic testing wasn't the subject in this court fight. This time Jenkins is hearing a lawsuit over the Army's biological weapons defense testing at Dugway Proving Ground.
Jenkins took the government's motion for summary judgment under advisement.
The military watchdog group Downwinders Inc. sued the Department of Defense and the Army in July 1991, requesting a court order halting germ testing at Dugway until the Army conducts an environmental impact study on the previous renovation of an aging testing lab at Dugway.
Baker Lab, a small facility on the vast proving ground about 80 miles west of Salt Lake City, has been upgraded to test more dangerous levels biological agents. Downwinders says the Army violated federal environmental laws by not conducting an environmental impact statement before renovating Baker lab.
Since Downwinders filed suit, the Army did conduct a brief "environmental assessment" of its Baker lab renovation in response to another lawsuit and found no risk to the public.
Army attorney Capt. James Norts said Monday that another environmental impact statement on Baker Lab would be "nothing more than a waste of paper."
In the worst case scenario, he explained, the most dangerous biological agents used at Dugway would not spread further than two meters before dissipating into harmless amounts in the atmosphere.
Despite the exotic labels of Venezuelan Equine Encephalomyelitis virus or Botulinum toxin A, Norts assured Jenkins that the toxins tested at Dugway are not rare and occur naturally outside the lab and can be found in animals.
He said scientists typically use harmless simulants in testing defenses to biological weapons. But when actual toxins are used, researchers are immunized, the tests are done using minute amounts and the test chamber's air passes through four filters before it is vented into the atmosphere.
But Moss warned Jenkins of the military's record of accidents and using humans in past testing. He added that Dugway is on the federal "Superfund" site for hazardous waste cleanup and has a history of operating in secret.
"Given the history of the military in this state, how can we accept the Army's assurance that there is no danger in its germ warfare experiments at Baker Lab," asked Moss, who as a U.S. senator was instrumental in investigating the death of 6,000 sheep exposed to a deadly could germs that in advertently drifted over nearby grazing land in the late 1960s.
The public has right to know what the government is doing or preparing to do if it jeopardizes their lives, Moss said, noting no public hearings were held on the renovation of the Baker Lab.
"We know that if our government embarks upon a course of action that, rightly or wrongly, accidentally or purposefully, harms its citizens, that those citizens have no chance for legal redress after the fact," Moss said.
Kurt Frankenburg, an attorney for the Utah Medical Association, which had filed a friend-of-the-court brief in support of the Downwinders' suit, said the public is at risk because the local medical community is ill-prepared to treat anyone infected with germs used at Dugway.
"That claim is simply stunning," retorted Norts. "If the Utah Medical Association is unprepared to treat someone infected with a naturally occurring toxin, that is of grave concern to everyone."