Full opinion text
TABLE OF CONTENTS I. POSTURE OF THE CASE .............1332 II. SCOPE OF JUDICIAL REVIEW ........1333 III. FACTS..............................1334 A. Administrative Record..............1334 1. Background of controversy.......1334 a. Navy ELF proposals prior to 1981 .................... 1334 b. Environmental documentation for pre-1981 ELF proposals ... 1335 1) 1972 environmental impact statement ...............1336 2) 1975 supplemental environmental impact statement ... 1337 3) National Academy of Sciences study ........... 1337 4) 1977 environmental impact statement ............... 1338 2. 1981 reactivation of ELF communication proposal............. 1340 a. Decision................... 1340 b. Scope of current proposal..... 1340 c. Environmental impact assessment for the current proposal .. 1341 3. Navy-supported research in biological effects ............... 1341 a. Pensacola primate experiments .....................1341 b. UCLA monkey behavior study .....................1342 c. Continued studies ...........1342 1) bird migration studies .....1342 2) multigenerational mice . studies..................1342 3) slime mold studies ........ 1343 4. IIT Research Institute activities . .. 1343 5. Ecological information........... 1343 a. Forest Service wildlife surveys ................... 1343 b. Ecological monitoring program................... 1344 c. Electromagnetic field measurements .............. 1344 6. Scientific literature............. 1344 a. Wertheimer-Leeper articles ... 1345. b. Rhode Island epidemiology study .....................1345 c. Stockholm epidemiology study .....................1345 d. Delgado study.............. 1345 e. Letters to the Editor ........ 1346 f. Other publications........... 1347 1) World Health Organization report .................. 1347 2) Montana Department of Natural Resources and Conservation report ....... 1347 7. Navy review of scientific information ................... 1348 a. Environmental Review Committee................. 1348 b. IIT Research Institute literature review............ 1349 1) Wertheimer-Leeper articles ................. 1349 2) Rhode Island epidemiology study....................1349 3) Stockholm epidemiology study.................• 1350 4) Delgado study............1350 5) Letters to the Editor ......1350 c. Other reviews ..............1350 d. IIT Research Institute public interest review .............■ 1350 8. Biological effects information in administrative record in fall, 1981 .. ■ 1350 B. Trial Testimony ...................1351 1. Navy review of scientific information in conjunction with its 1981 decision to reactivate Project ELF...................1351 2. Post-1977 scientific research......1352 a. Research studies not included in the administrative record ... 1352 1) Blackman and Adey window research ................1352 a) the study .............1352 b) expert assessment ......1353 2) Batelle Laboratories studies................• 1353 a) the study .............1353 b) expert assessment ......1353 3) Slime mold studies . •.......1353 a) the study .............1353 b) expert assessment......1354 4) Additional research .......1354 a) the studies ............1354 b) expert assessment......1354 b. Post-1977 scientific literature in the administrative record . .. 1354 1) epidemiology studies ...... 1354 2) Delgado study............ 1355 3) Letters to the Editor ......1355 IV. OPINION ...........................1355 A. Scope of the National Environmental Policy Act........................1355 1. Exemption of presidential decision ......................1355 2. Exemption of activities begun before January 1,1970 .......... 1355 B. Standard of Review of an Agency Decision not to Prepare a Supplemental Environmental Impact Statement.....1356 C. Navy’s Obligation to File a Supplemental Environmental Impact Statement........................ 1357 1. Substantiality of changes in the proposed action ................ 1357 a. Maintenance and modernization activities ...... 1358 b. Reduction of environmental impact .................... 1358 c. Conversion to a fully operational system .................... 1359 2. Significance of new information of biological effects of electromagnetic radiation .............. 1360 a. Environmental significance of the new information......... 1361 b. Degree of care with which the Navy considered the new information ................- 1363 c. Sufficiency of Navy’s explanation of its decision not'to file a supplemental environmental impact statement............ 1364 D. Remedy ......................... 1364 V. ORDER.............................- 1365 I. POSTURE OF THE CASE CRABB, Chief Judge. This is a civil action in which plaintiff State of Wisconsin seeks a preliminary and permanent injunction of any additional work by defendants on Project ELF submarine communication facilities in -northern Wisconsin and the' upper peninsula of Michigan until defendants have prepared a supplemental environmental impact statement. Plaintiff contends a supplemental environmental impact statement is required by the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4335 and implementing regulations. Marquette County, Michigan has been granted leave to intervene permissively, with its participation limited to the issue whether a supplemental environmental impact statement is necessary for the proposed ELF Project in northern Wisconsin and the upper peninsula of Michigan because of significant new information concerning biological effects of extremely low frequency electromagnetic radiation. A hearing on plaintiffs’ motion for a preliminary injunction was consolidated with a trial on the merits of the case. At the conclusion of the trial, I denied plaintiffs’ motion for a preliminary injunction. I held that the question of ultimate success on the merits was a close one and plaintiffs had not shown a reasonable likelihood of prevailing; that the main thrust of plaintiffs’ case was directed to the operation of the ELF facility and the biological consequences of that operation and plaintiffs had not shown .that defendants’ continued work on the construction aspects of the Wisconsin and upper Michigan ELF facilities constituted irreparable harm; that the balance of harms was approximately even; and that the public interest would not be served or disserved by the issuance of an injunction at that time. I stated that construction work such as the preparation of the sites, erection of buildings, upgrading of existing buildings, and installation of antennae could go forward if defendants were willing to assume the risk that they would subsequently be enjoined from completing the work and putting the facilities into operation. II. SCOPE OF JUDICIAL REVIEW As a threshold matter, I must consider defendants’ motion to limit judicial review of the Navy’s compliance with the National Environmental Policy Act to a review of the administrative record. There are two exceptions to the ordinary rule that judicial review of agency actions is confined to a review of the record that was before the agency at the time of the decision: where the administrative record does not provide an adequate explanation of the administrative actions, and in a complex, technical case where it is necessary to look beyond the record to determine whether the agency considered all factors relevant to its decision. In the first instance, the reviewing court may receive evidence to clarify the administrative record. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C.Cir.1981); ASARCO, Inc. v. United States Environmental Protection Agency, 616 F.2d 1153, 1159-60 (9th Cir.1980). It is well established that an agency’s decision not to issue an environmental impact statement must be supported by a record sufficiently developed to permit judicial review. City of West Chicago, Illinois v. United States Nuclear Regulatory Comm’n, 701 F.2d 632, 651 (7th Cir.1983). If the basis of the agency decision cannot be discerned from the administrative record, the reviewing court has the option of remanding to the agency for clarification of the agency action or eliciting explanatory information from agency officials in the form of testimony or affidavits. Environmental Defense Fund, Inc. v. Costle, 657 F.2d at 285; City Federal Savings & Loan Ass’n v. Federal Home Loan Bank Board, 600 F.2d 681, 689 (7th Cir.1979). In the second instance, where the case is complex, the court may be unable to evaluate the adequacy of the information considered by the agency unless it looks beyond the administrative record to determine what the agency ignored. ASARCO, Inc. v. United States Environmental Protection Agency, 616 F.2d at 1160. This case implicates both exceptions to the ordinary rule confining judicial review to the administrative record. Because the basis for the Navy’s decision not to prepare a supplemental environmental impact statement is not readily apparent from the administrative record, I will consider trial testimony from Navy officials explaining the basis for their decision. In addition, because this case requires a determination whether the Navy considered relevant new information in deciding not to prepare a supplemental environmental impact statement, I will review information outside the administrative record to decide whether new information became available after preparation of the 1977 environmental impact statement and whether that new information is so significant as to require the preparation of a supplemental environmental impact statement. III. FACTS A. Administrative Record The administrative record in this case consists of five volumes of information collected throughout the history of the Navy’s ELF communication proposals. In addition to the Navy’s environmental impact statements for its ELF proposals and a 1977 National Academy of Sciences study, which make up almost half the administrative record, the record includes 1) information about the current proposal; 2) reports from Navy-supported research; 3) reports from the IIT Research Institute with which the Navy has contracted for environmental monitoring; 4) information about ecological effects of Project ELF; 5) scientific literature in the area of electromagnetic field effects; and 6) minutes from the Navy’s Environmental Review Committee. I find that the administrative record contains evidence of the following: 1. Background of controversy a. Navy ELF proposals prior to 1981 Since World War I, the Navy has used very low frequency radio signals to communicate with its submarines from fixed shore-based transmitters. Although very low frequency signals can penetrate seawater, they can do so only to a depth of 30-40 feet. To receive a very low frequency transmission, a submarine must either operate at a shallow depth or send a buoyed antenna to receiving range while operating at a low speed. In either case, the submarine becomes more vulnerable to detection. To reduce this vulnerability, the Navy has been looking for alternative communication systems. At least since 1958, the Navy has been studying and developing military communication systems that utilize “extremely low frequency” electromagnetic radiation. “Electromagnetic radiation” refers to the waves emitted from an electric charge in motion, which has both electric and magnetic components. (Any energy that moves through space at the speed of light is a form of electromagnetic radiation.) Extremely low frequency electromagnetic radiation refers to nonionizing electrical waves in the frequency range from 30 to 300 Hz with wavelengths from 6200 to 620 miles long. These very long wavelengths can penetrate seawater to depths of approximately 300 to 400 feet. The primary uses of extremely low frequency electromagnetic radiation are commercial power systems and the naval communication system that is the subject of this lawsuit. Commercial power systems operate at a frequency of 60 Hz in the United States and Canada and at frequencies of 40-50 Hz in much of Europe. Initially, the Navy’s ELF communication system was intended to operate at 45 to 75 Hz. It was changed to a frequency range of 72 to 80 Hz. Throughout the rest of this opinion, I will refer to electromagnetic radiation in the extremely low frequency range by writing it out: extremely low frequency. To identify the Navy’s communication system, I will use the abbreviation for extremely low frequency: ELF. On July 1, 1968, the Navy announced plans to construct an ELF communication test facility at Clam Lake in northern Wisconsin. This facility, which includes 28 miles of overhead antenna, became operational in 1969, achieving full capacity in 1970. From 1969 through 1972, the Navy conducted research in conceptual designs for ELF communication systems and in environmental effects. The Navy then proposed Project Sanguine: a three-phase plan for research and development at the Wisconsin test facility for the period from 1972-1976, consisting of a concept formulation phase, a validation phase, and a full-scale development phase. As of 1972; the Navy planned to construct two transmitters and a 6300 square mile grid of buried antenna and to have the system operational by late 1976. During 1973 and the. first quarter of 1974, the Navy conducted environmental studies, focusing on interference mitigation activities, biological experiments, ecological surveys, and development of environmental site evaluation techniques, all as part of the concept formulation phase. In 1975, the Navy entered the validation phase of Project Sanguine. The Navy never went on to the full-scale development phase of Project Sanguine. Instead, in 1977, it proposed Project Seafarer, an experimental ELF communication system with two test facilities, the one at Clam Lake and an additional test facility with a transmitter station, an adjacent transmitter control center, and 130 miles of buried antenna cables, to be located in the upper peninsula of Michigan. As part of an effort to reduce the size of the fully operational system, the Navy planned experimental operations in the northern Wisconsin and upper Michigan test facilities to explore the system’s capabilities. At the time, the Navy was proposing that when Seafarer was fully operational, it would have five surface transmitter stations and 2400 miles of buried antenna cables dispersed in a 4000 square mile area. The Navy chose upper Michigan as the location for the new Project Seafarer test facility because of the transmitting qualities of the dry granite bedrock in northern parts of Wisconsin and Michigan, because of lower costs compared with other sites, and because the location would make it possible' to operate synchronously with the Wisconsin test facility. Synchronous operation means that a signal is issued from both sites at the same instant, increasing the strength of the signal. A synchronous signal is necessary to reach distant submarines. For fiscal year 1978, President Carter supported the allocation of $20.1 million for .Project Seafarer research and development with the understanding that none of this money would be used for work on a Michigan site. At that time, President Carter planned to review personally any future funding requests for deploying a Seafarer system in Michigan. On February 16, 1978, President Carter decided to terminate Project Seafarer for an indefinite period. He recommended that the Navy study possible alternate sites and inform the public officials and residents of Michigan and Wisconsin of the need for an ELF submarine communication facility. Following the President’s lead, Congress did not fund Project ELF, as it came to be known, and the project entered a dormant phase, lasting from approximately April, 1979, to March, 1981. b. Environmental documentation for pre1981 ELF proposals From the time the Navy first announced its interest in an ELF communication system, public officials and other interested persons have voiced concerns about the implications of continuously exposing humans, animals, and plants to extremely low frequency electromagnetic radiation, a subject that until recently has received little, if any, scientific study. These concerns are threefold, focusing on the potential effects of 1) the frequencies to be used by the Navy; 2) the power intensity of the electric fields produced by operation of the ELF antennae; and 3) the intensity of the magnetic fields generated by the electric current passing through the antennae. Acknowledging the public’s interest in the subject of biological effects, the Navy addressed it in its 1972' environmental impact statement, its 1975 supplemental environmental impact statement, and its 1977 environmental impact statement to which it attached a 1977 National Academy of Sciences study it had commissioned-. These reports are included in full in the administrative record and are summarized below. 1) 1972 environmental impact statement In the April, 1972 final environmental impact statement for the first three phases of Project Sanguine, the Navy concluded that there would be no significant adverse environmental impact from any of the three developmental phases of the project or from the construction and deployment of a fully-operational system in late 1976 at the Wisconsin test facility. From biological studies it had funded, the Navy was satisfied that the only biological effects that had been' observed had occurred at electromagnetic field intensities much higher than the maximum electromagnetic fields associated with the Sanguine system. Further, from its assessment of the available literature in the areas of effects on chromosomes, fertility of rats, growth and development, behavior, biorhythms, soil microbiology, biochemical systems, and electric safety, the Navy concluded that there was only a small chance that similar Sanguine fields would have any deleterious biological effect. The Navy noted the history of electric power lines: “Long experience with low-level ELF fields such as those produced by existing commercial pbwer lines, and which would be produced by a Sanguine System, has shown thus far no untoward biological effects are to be expected.” The Navy recognized the importance of research concerning biological effects at frequencies far different from those produced by an ELF antenna: “Its value lies in the identification of potential mechanisms by which biological reactions might take place. Such knowledge is helpful in establishing hypotheses for effects at ELF.” The Navy stated that it would proceed with its research on biological effects, with “re-assessment on a continuing basis from additional research during the anticipated 4-year validation and development phases of the project.” Among the public comments submitted to the Navy in response to the 1972 environmental impact statement were those of the, Bock Committee, an ad hoc committee formed in 1969 by the governor of Wisconsin and headed by Robert Bock, dean of the graduate school of the University of Wisconsin-Madison. This committee expressed concern that the ecological studies at the Wisconsin test facility were of little value, because there was no environmental data from the preconstruction period to serve as a baseline. It contended that the results of studies conducted at the test facility were not informative, because the test facility antennae were operating only for short periods and only intermittently, creating conditions quite different from those that might be expected of a fully operational system. The committee suggested research directed at subtle long-term effects, synergistic conditions, and multiple environmental stresses. Finally, the committee emphasized the importance of acknowledging the difficulties of extrapolating from laboratory to real-world conditions. The committee concluded that, because of the inadequacy of the existing research, the Navy had no basis for determining whether the system could operate without major, long-term environmental impact. 2) 1975 supplemental environmental impact statement In 1975, before deciding to proceed with the validation phase of Project Sanguine, the Navy released a supplement to the 1972 environmental impact statement. In this supplement, the Navy updated its evaluation of the biological and ecological effects of extremely low frequency electromagnetic radiation and concluded: The results of two additional years of testing and trends observed in continuing experiments provide additional factual data upon which the risk of biological and ecological reactions from a Sanguine System can be assessed. That risk continues to appear acceptably small. 3) National Academy of Sciences study In 1975, the Navy requested the National Academy of Sciences to study the possibility of harm to plants, animals, and human beings from the electromagnetic fields produced by the ELF communication system. The committee published its report in August, 1977. The Navy incorporated this report in its 1977 final environmental impact statement. The committee identified two electric shock hazards, one of which could be alleviated by altering the design of ground terminals, the second of which could be minimized by developing a rapid and reliable detection system. The committee evaluated reports from Navy-sponsored experiments and the published literature on biological effects of electromagnetic radiation. It found no likelihood of genetic hazards from ELF fields, no ground for concern about the possible effects of electromagnetic radiation on fertility, growth, and development, little ground for concern about adverse effects on cell growth and division, no effects on human triglyceride concentrations, and no reason for concern about possible effects on circadian rhythms. In several areas, the committee recognized that some biological effects other than electric shock might occur. Noting the limited nature of the data on biological effects and inconclusive research results, the committee recommended further research in many areas, including effects of extremely low frequency electromagnetic radiation on 1) behavior and adaptation of fish sensitive to weak electric fields; 2) orientation and comb-building behavior' of bees; 3) magnetotactic bacteria (bacteria that move toward the earth’s magnetic north pole); 4) bird navigation and migration patterns; and 5) mammalian neurophysiological behavioral, and neurochemical effects. The committee concluded that, if an ELF communication system were to be built and operated, continued research on biological effects of ELF electromagnetic radiation was essential. As part of its study, the National Academy of Sciences commissioned Ross Adey to do a chapter on the anatomy and biophysics in brain cells in weak extremely low frequency fields. In this chapter, Adey noted his recent observation of amplitude and frequency windows in ELF modulation of VHF (147 MHz) and UHF (450 MHz) radio frequency fields and cited a study of his own on this subject (Adey & Bawin, 1977). Adey stated that the observations were suggestive. He did not expand further on either the concept or significance of “windowing.” The committee reviewed epidemiology studies performed, in Eastern Europe and the U.S.S.R. that showed a correlation between biological effects and electromagnetic fields associated with electric power installations. Although it characterized these studies as difficult to evaluate because of the absence of descriptions of study methods, of discussions of methods of selecting controls and characteristics of the controls, and of quantified data, the committee acknowledged the potential value 'of epidemiological research for predicting the effects of electromagnetic radiation. With regard to biological effects, the committee concluded that there was no good evidence of any significant effects: The Committee’s considered opinion is that such fields will not cause significant and adverse biologic disturbance____ Although the available data are extremely limited, some effects not related to shock may occur____ Thus, like many other perturbations introduced by man; this involves some uncertainty and calls for continuing research. 4) 1977 environmental impact statement In conjunction with its 1977 Project Seafarer proposal the Navy released a draft environmental impact statement for comment in February, 1977, and filed a final statement in December, 1977. The Navy later sent the National Academy of Sciences findings to the Council on Environmental Quality and distributed them as a supplement to the organizations and agencies that had received the draft environmental impact statements. In the final environmental impact statement, the Navy summarized the state of knowledge concerning biological effects of electromagnetic radiation: “Totally acceptable scientific knowledge in this regard is not available now to either prove or disprove many important issues, and is unlikely to be in the very near future despite constantly increasing interest and research.” From what it characterized as casual observations, conclusions drawn from experience with existing ELF electromagnetic fields, and analysis of scientific experiments in the area, the Navy reached the overall conclusion in the 1977 environmental impact statement that “No adverse electromagnetic influences are expected on humans, animals or plants due to Seafarer operations.” It stated that “There are research results suggesting the existence of some rather diverse and subtle effects from particular types of ELF exposures. However, no adverse biological effect has been completely substantiated or seems highly probable from a Seafarer-like operation.” Throughout this environmental impact statement, as in its predecessors, the Navy continued to rely on the hazard-free experience with electric power systems. There is nearly one hundred years of experience living with 50 and 60 Hz electrical fields. No generally-accepted adverse human or ecological effects due to such fields have been observed in homes, workplaces, communities or in the immediate vicinity of electric power transmission corridors. In the 1977 environmental impact statement, the Navy reviewed the overall results of research in several specific areas of biological and ecological effects. Relying on research it had funded on growth in bacteria, onion roots, bean roots, sunflowers, tadpoles, mice, and chickens, the Navy concluded that there was no evidence of adverse effects. From studies that had shown slower rates of growth for slime molds and rats exposed to electromagnetic radiation, the Navy acknowledged the potential biological effects of electromagnetic radiation on early growth in certain species, but minimized the importance of this possibility: Experimental evidence to date indicates normal offspring of plants, animals, and humans are produced in ELF fields comparable to and even larger than Seafarer fields. No study has shown teratogenic effects (embryologieal defects) produced by ELF fields____ The biological risk of ELF effects on growth of selective species does not appear to lead to any important ecological ramifications. The Navy concluded that Seafarer electromagnetic fields would not affect human health because all of the research indicating acute neurophysiological and behavioral effects on humans exposed to electromagnetic radiation had been undertaken in the frequency range from 2 to 20 Hz (rather than in the 72 to 80 Hz range at which ELF would operate). In addition, Navy medical surveillance at the Wisconsin test facility from 1971 to 1975 had revealed no disease prevalence or physiological alterations: “In spite of scant research and a limited.theoretical foundation, some subtle effects of a biochemical nature have been reported. However, none of the evidence for biochemical effects occurs at field strengths or frequencies typical of Seafarer, and therefore is not evidence that such an antenna would affect biochemical processes.” The Navy also stated, “Experimental evidence that ELF fields affect physiological processes is not conclusive, but is sufficiently important to warrant careful examination.” In the 1977 environmental impact statement, the Navy reiterated its pledge that “if any deleterious biologic effects were identified, the operation of the system would be discontinued.” The Navy planned ongoing research and monitoring efforts: “The risk of electromagnetic effects will be evaluated through a continuing environmental monitoring program____ The results of the' program would be reviewed periodically by the Department of Defense and the state to determine whether changes in Seafarer test operations are necessary to reduce environmental risks to mutually acceptable levels.” In response to the National Academy of Sciences study, the Navy proposed to support biological and ecological research in many of the areas recommended by the National Academy of Sciences, such as bird migration patterns and electromagnetic field effects on electrosensitive fish and magnetotactic bacteria; to continue two studies on fertility, growth, and development of mice and rats, one study of triglyceride concentration studies with rats and monkeys, and primate studies on complex nervous system effects; and to evaluate the Electric Power Research Institute studies on honey bee behavior under commercial power lines. To investigate indications of potential biological effects, the Navy proposed to include field studies of soil organisms and plants in its ecological monitoring plan for the selected site area in Michigan. However, the Navy planned no further research, in the areas of genetics, circadian rhythms, and human serum triglyceride concentrations, because it concurred in the National Academy of Sciences committee’s finding of no likely hazard. When the Navy distributed the September, 1977 Seafarer environmental impact statement the public expressed concern over the size of the proposed fully operational system. Citizen groups voiced the fear that the Navy would expand the test facility into a large fully operational system without any subsequent environmental documentation. In accordance with its duties under the .National Environmental Policy Act and § 309 of the Clean Air Act, the United States Environmental Protection Agency reviewed the draft environmental impact statement and the National Academy of Sciences study. In a letter of November 11, 1977, the Environmental Protection Agency suggested that further environmental impact documentation would be necessary before any decision were made to operate a full-scale ELF system at one or both of the test facilities. The Navy attached this letter to the comments section of the final environmental impact statement and indicated its agreement in the margin. 2. 1981 reactivation of ELF communication proposal a. Decision In April, 1981, after President Reagan agreed with defendant Weinberger’s recommendation that the President decide whether to reactivate the Navy’s ELF communication system, the Navy began planning the implementation of the system and determining the communication capability necessary to reach United States strategic submarines throughout the 'world. Defendant Weinberger submitted an ELF proposal to the President on August 13, 1981. On October 8, 1981, President Reagan approved the recommended proposal and advised Congress “that we have decided to proceed with the ELF Communications System deployment.” b. Scope of current proposal The system recommended by defendant Weinberger ^and. approved by President Reagan requires upgrading the- existing facility in Wisconsin, constructing a new facility of comparable size in upper Michigan with 56 miles of above-ground antennae, and supplying submarines with appropriate ELF receivers. According to a report distributed in December, 1981 by the Naval Electronic Systems Command, the upgrading of the Wisconsin facility is to include installing new ELF power amplifiers and ancillary electronic equipment, expanding the existing ELF transmitter building by about 8620 square feet to accommodate the new electronic equipment, installing standby electric power units in a separate 2800 square foot building, replacing the present security personnel building with a larger gate house, burying tanks for storing diesel fuel for the standby power units, installing a fault detection system on the present 28 mile antenna system, and improving the four ground terminals to enhance electrical safety. The new construction is to be entirely within the confines of the existing site with installation of the new equipment scheduled for 1984. All present operations and programs are to be continued throughout 1982-1985, including ongoing ecological monitoring, wildlife surveys, and interference mitigation activities. Construction in upper Michigan is to include installation of four ground terminals, a 56 mile network of above-ground transmitting antennae, and a transmitter located on about two acres of land. The Michigan facility is to be operated synchronously with the Wisconsin facility to produce the signal strengths needed to reach the most distant United States submarine stations. Suitable sites for the facility and the antennae corridors were to be selected in 1982 with the assistance of Michigan state agencies. Construction work was to be initiated in 1983 and completed in 1984. Installation of equipment is to be completed in 1985 and synchronous operations with the Wisconsin facility are to begin in 1986. c. Environmental impact assessment for the current proposal On June 7,1983, the Navy issued, but did not circulate to the public or to interested federal agencies, an environmental impact assessment of the upgrading of the Wisconsin facility. In this assessment, the Navy concluded that upgrading the Wisconsin ELF facility would produce neither permanent nor temporary significant environmental impact. The Navy noted that the 1977 National Academy of Sciences study and the 1977 environmental impact statement had determined that ELF would produce no adverse biological effects. The Navy explained that the upgrading work would not increase the electromagnetic field intensities which would remain below the safety standard recommended by the World Health Organization in 1982. 3. Navy-supported, research in biological effects In response both to public criticism of its ELF proposals and to the general lack of information about biological effects of extremely low frequency electromagnetic radiation, the Navy has sponsored several research .studies on this subject. Reports of those studies that appear in the record and were written after 1977 are summarized below. a. Pensacola primate experiments Since 1969, the Navy has conducted primate experiments at the Pensacola Naval Aerospace Medical Research Laboratory. Up until 1977, researchers were unable to find any physiological differences between monkeys exposed to electromagnetic radiation and control groups of monkeys. Following the publication of the National Academy of Sciences study in August, 1977, the researchers analyzed some of the experimental data on the basis of the sex of the monkeys. In November, 1977, the researchers noted that exposed males gained weight at a faster rate than the control group males so that by the end of one year the exposed males were approximately 11% heavier than the control group males. In March, 1978, a National Academy of Sciences panel evaluated the data at the Navy’s request. The panel found small but statistically significant differences between exposed and control groups in several areas. The exposed group had greater body weight, lower blood glucose content, lower blood urea nitrogen, and lower bipod glutamyltranspeptidase. The panel noted substantial evidence of a real effect of exposure on male animals, but found that the actual values of the exposed group males were within normal ranges, despite the quantitative differences between exposed and control group males. The panel did not recommend any changes in the Seafarer decision, based on the Pensacola findings. However, it recommended continuing research to examine the differences that had been identified. . As of September, 1978, the Navy planned to continue the primate experiments at Pensacola. Early in 1983, the Pensacola Naval Aerospace Medical Research Laboratory submitted to the Navy an annual report of the primate experiments for fiscal year 1982. In four paragraphs, the laboratory reported that preliminary results of the experiments disclosed no significant growth rate effects but did disclose some inconclusive endocrine and circadian rhythm changes. b. UCLA monkey behavior study In June, 1980, a group of scientists from the University of California at Los Angeles, submitted a final report of their Navy-supported research begun in 1969 on effects of electromagnetic radiation on monkey behavior. Titled “An Evaluation of Possible Effects of Modulated 76 Hz Electric Fields on Behavior and EEG of Monkeys. Phase 2: Frequency Modulation,” the UCLA report arrived at four conclusions: 1) The scientists'found that the monkeys’ behavioral patterns were frequency specific with a low threshold of 7 Hz, that is, their behavioral changes occurred in response to specific frequencies, rather than simply in response to electromagnetic radiation. This phenomenon was analogous to a phenomenon of frequency-specific calcium efflux that had been observed in in vitro neonatal chicken brains. 2) The data suggested some degree of dose dependent results because results at 100 volts per meter were inconclusive, while results at lower intensities showed an effect, suggesting a voltage “window” similar to that found in certain calcium efflux studies -(which are not further identified and which are not part of the administrative record) and by Kalmijn (a scientist who found an effect upon the electric sense of sharks within a small range of low voltage stimulation but not at substantially higher voltage stimulation). ' 3) Relatively long periods of exposure contributed to the systematic array of results. 4) The data suggested a hypothesis that the animals were forced to- pay attention to their own internal mileau because of the absence of regulating cues in the form of sound or light. c. Continued studies 1) bird migration studies Between 1974 and 1979, the Navy contracted with a group of scientists to study the effects of ELF fields on birds flying over the Wisconsin test facility. Early observations suggested that the mean direction of migration shifted when the north-south leg of the antenna network was activated. When both legs or only the east-west leg were activated, no shifts in migration could be confirmed. In'an August, 1979 report, scientists noted that further analysis had confirmed earlier findings of some shifts in migration patterns. However, from their findings of systematic differences in the birds’ flight when flying over areas known to be magnetically anomalous, the scientists concluded that temporary, highly localized changes in migratory behavior in the vicinity of the test facility when the antennae were activated would have minimal effects on the migratory goals of birds. 2) multigenerational mice studies An early multigenerational study of mice exposed to modulated signals of 76 Hz (within the 72 to 80 Hz range used by the ELF system) disclosed differences between the exposed and control groups in the sixth generation in terms of litter size and fertility. However, because the entire experimental litter died over a weekend and the sixth generation males had been killed to save space, no valid results could be determined. Repeated exploration with the sixth generation females disclosed some differences. The study was repeated during 1977. In a final report apparently dated January, 1980, the scientists found no significant differences between exposed and control populations. 3) slime mold studies In Navy-sponsored research experiments conducted under labordtory conditions, Dr. Goodman of the University of WisconsinParkside found that exposure to weak electromagnetic fields affected the growth of slime mold. Subsequently, Goodman conducted similar tests at the Clam Lake ELF site to determine whether the same physiological effects could be observed under exposure to actual electromagnetic fields. The record does not contain any of the results of these later tests. 4- IIT Research Institute activities Since 1968, except for the “dormant period” from April, 1979 to March, 1981, when Project ELF was not funded, the Navy has contracted with IIT Research Institute for the provision of technical services for the Navy’s Environmental Compatibility Assurance Program. (IIT Research Institute is a not-for-profit institute located on the campus of the Illinois Institute of Technology.) The contract establishing work requirements for the 1976-1978 fiscal years provided for “electromagnetic environments surveys and analysis.” IIT Research Institute prepared all the plans and reports for the Navy’s ecological monitoring program. In addition, it provided the Navy with occasional summaries of legal developments concerning National Environmental Policy Act requirements, with electric and magnetic field measurements in and around the Wisconsin test facility, with several summaries of professional conferences and discussions with scientists about current research, and with evaluations and copies of some articles about biological effects of electromagnetic radiation, which are discussed infra at III, A, 6; III, A, 7, b. Although the contract provided for IIT Research Institute to submit monthly reports to the Navy summarizing its activities in the previous month, the administrative record contains only seven IIT Research Institute reports for the months August, 1981, October, November, December, 1982, February, April, June, and August, 1983. In the reports for August, 1981, October, 1982, November, 1982, and December, 1982, IIT Research Institute reported little information on biological effects of electromagnetic radiation. IIT Research Institute did report discussions between IIT Research Institute personnel and five scientists who were conducting experiments on biological and ecological effects of electromagnetic radiation, but there are no reports of the experiments themselves in the administrative record. 5. Ecological information Much of the information in the administrative record pertains to the ecological, rather than the biological, effects of Project ELF. This ecological information is summarized below. a. Forest Service wildlife surveys Since July, 1971, the Navy has tracked animal populations at the Clam Lake site by contracting with the United States Forest Service for annual studies of small mammal populations, deer herds, eagle and osprey nesting populations, and ruffed grouse populations in the area of the Wisconsin ELF test facility. The record includes the 1976, 1978, and 1982 annual survey data submitted by the Forest Service. b. Ecological monitoring program The Navy established the ecological monitoring program to ensure that the electromagnetic fields produced by operating an ELF communication system in Marquette County, Michigan would have no adverse effect on vegetation and wildlife located near the project area. The administrative record contains a compilation of 1982 reports of the Navy’s ecological monitoring program, prepared by IIT Research Institute and covering the period from July, 1982 through October, 1982. One of the emphases of the ecological monitoring program in upper Michigan was the collection of base data of the sort that had not been collected before the Wisconsin test facility had been constructed. During the first four months of the studies, twelve of the thirteen researchers collected base information'for further work in the areas of plant cover, tree studies, litter decomposition, microflora, soil amoebae, soil arthropods, earthworms, small mammals, nesting birds, aquatic ecosystems, and bees. The record also contains an August, 1983 IIT Research Institute report of the 1982 ecological monitoring program and the plans for continuation of ongoing studies of terrestrial vegetation, soil amoebae, slime mold, soil arthropods and earthworms, native bees, small mammals and nesting birds, migrating birds, wetland biota, and aquatic biota. c. Electromagnetic field measurements In April, 1978, January, 1982, and February, 1983, pursuant to its contract with the Navy, IIT Research Institute measured and reported the electric and magnetic fields near the ELF antennae and the test facility. Those reports show that magnetic field measurements in the thirty mile area around the' Wisconsin test facility have ranged from 0.000001 gauss to 0.189 gauss, but generally are about 0.001 gauss in the vicinity of the antenna. According to 1983 measurements, electric field intensities in the area of the Wisconsin test facility range from 0.00005 volts per meter to 0.16 volts per meter at 76 Hz. However, previous measurements recorded one unusually high electric field measurement of 157 volts per meter at 75 Hz. 6. Scientific literature Until the summer of 1983, the only scientific literature in the administrative record on electromagnetic field effects consisted of the reports from Navy-supported research, none of which had ever been published in a scientific journal. In April, 1983, IIT Research Institute reported that it had utilized four search services to discover papers published since 1978 pertaining to biological effects of extremely low frequency electromagnetic radiation and that the searches disclosed 567 citations, 134 of which seemed relevant to Project ELF. In May, 1983, IIT Research Institute reported having used six search services to identify papers pertaining to biological effects of extremely low frequency electromagnetic fields, obtaining a list of 1249 citations. In its June, 1983, monthly report, IIT Research Institute provided the Navy with copies and critiques of five articles and five Letters to the Editor which are now part of the administrative record. These are summarized below. a. Wertheimer-Leeper articles In these two articles, Dr. Nancy Wertheimer and Ed Leeper discussed two epidemiological studies they conducted in which they found a correlation between high-current wire configurations and the incidence of childhood and adult cancer. From this correlation, the authors concluded that magnetic fields may produce a condition or environment that facilitates the onset of cancer. They did not contend that they had established the existence of a causal relationship. In the first article, published in a peer review journal in 1979, the authors reported locating residences of children in the greater Denver area who had died of cancer within a certain time period, to determine the proximity of those residences to transformers or to electric wires carrying current of a high magnitude. The authors used the term “high-current configurations” to refer to a residence less than forty meters from primary wires (13 kv) built to carry high currents, less than 20 meters from 3 to 5 smaller primary wires (50-230 kv), or less than 15 meters from still smaller wires that issue directly from transformers without yet losing current through a service drop. All other configurations were considered low-current configurations. The authors found a statistically significant correlation between the incidence of childhood cancer and the proximity to the children’s residences of high-current configurations. (Electric power lines produce magnetic fields in the range of 0.001 to 0.1 gauss. These magnetic field measurements are comparable to those in the vicinity of the ELF antennae.) In the 1982 article published in a peer review journal, Wertheimer and Leeper discuss the results of a study in which they found a statistically significant correlation between the incidence of adult cancer and the proximity of high-current configurations to the patients’ residences. b. Rhode Island epidemiology study In a 1980 article, “Electric-Wiring Configurations and Childhood Leukemia in Rhode Island,” in the American Journal of Epidemiology, a peer review journal, Fulton and others reported on their attempt to duplicate in Rhode Island the Wertheimer-Leeper procedures relating leukemia to power line configurations. The researchers concluded from their data that if such a relationship exists, it is very small. It was their opinion that the. findings in the Denver study must be the result of an interaction between magnetic fields and some other factor that is stronger in Denver than in Rhode Island. The journal published two Letters to the Editor responding to this article. In one, the writer challenged the statistics used in the study. In the other, Wertheimer and Leeper criticized the Rhode Island study for having an urban bias in the control group. They reanalyzed the Rhode Island data using a different control group and found a small correlation of the kind identified in their Denver studies. c. Stockholm epidemiology study In an article entitled “Electrical Constructions and 50 Hz Magnetic Field at the Dwellings of Tumor Cases (0-18 years of age) in the County of Stockholm,” the authors found a correlation between the incidence of cancer and residency in a dwelling located within 150 meters of a visible 200 kilovolt high tension wire assumed to have a magnetic field of 0.003 gauss or more (as compared to the magnetic field averaging about 0.001 gauss and going to a high of 0.189 gauss in the vicinity of the ELF facility). d. Delgado study In a' 1982 article published in a peer review journal and entitled “Embryological Changes Induced by Weak, Extremely Low Frequency Electromagnetic Fields,” Delgado and others described the exposure of fertilized chicken eggs during the first stages of development to electromagnetic fields of 10 Hz, 100 Hz, and 1000 Hz. The researchers found that frequencies of 100 Hz had a significantly more powerful effect on chicken embryogenesis than did frequencies of 10 Hz or 1000 Hz. Such exposure arrested development at a very early stage, limiting development to the three primitive layers at which there are no signs of the neural tube, brain vesicles, the auditory pit, foregut, the heart, vessels, or somites. Magnetic field intensities of 0.012 gauss had a greater effect than exposures to 0.12 gauss or 0.0012 gauss. The researchers concluded that electromagnetic field effects occur in both frequency and power windows. They referred to similar findings in other studies, such as: a 1976 study by Bawin and Adey which found a major decrease in calcium efflux at frequencies of 10 and 56 volts per meter but only a small decrease at fields at 5 and 100 volts per meter; a 1975 study by Bawin, Kaczmarek, and Adey finding an effect at 6-20 Hz which disappeared at 35 Hz; a 1978 study by Bawin, Sheppard, and Adey finding a power window above and below which no significant effect could be observed; and a 1979 Adey study discussing possible mechanisms of such window effects. A report of Delgado’s work appeared in MicroWave News in March, 1983. The author stated that most scientists interviewed thought that effects of this magnitude should be subjected to further testing for reliability. e. Letters to the Editor- On July 22, 1982, The New England Journal of Medicine publised a letter from a'Dr. Milham of the Washington Department of Social Services entitled “Mortality from Leukemia in Workers Exposed to Electrical and Magnetic Fields,” in which Milham reported evidence of more deaths from leukemia among men working in electric or magnetic field occupations. From this correlation, Milham concluded that a causal relationship might exist. The New England Journal of Medicine published a response to the Milham letter on November 25, 1982 which was written by a Dr. Liburdy and entitled “Carcinogenesis and Exposure to Electrical and Magnetic Fields.” Liburdy took issue with Mil-ham’s conclusion that there is a causal association between leukemia and electric or magnetic fields. He summarized existing research in the area of biological effects of electromagnetic radiation and referred to a 1978 National Institute for Occupational Safety and Health report citing more than 60 studies which had identified various mutagenic, teratogenic, developmental, hematologic, and neurologic effects of electromagnetic radiation. None of the scientists whose studies were cited in the report had found any relationship between electromagnetic radiation and cancer. In a November 20, 1982 Letter to the Editor of The Lancet entitled “Leukemia in Workers Exposed to Electrical Magnetic Fields,” Wright, Peters, and Mack reported finding a higher incidence of leukemia in white males in electrical occupations in Los Angeles County from 1972 to 1979. In a January 29, 1983 Letter to the Editor of The Lancet, McDowall reported a higher than average leukemia mortality rate among electrical workers in England and Wales. In an April 30/1983 Letter to the Editor of The Lancet, Coleman, Bell, and Skeet reported the results of their investigation of the proportional incidence of cancer in ten electrical occupations in Southeast England from 1961 to 1979, which disclosed a slightly increased incidence of leukemia among electrical workers. A 1982 Letter to the Editor published in Physics in Medicine and Biology entitled “Magnetic Fields Affect the Lac Operon System” did not use epidemiological techniques. The authors examined the enzymatic lac operon system in E. coli to look at the effect of alternating magnetic fields on the growth rate of bacteria, applying pulse signals of 0 to 0.007 gauss to the bacteria. The researchers found the rate of beta galactosidase synthesis, a process controlled by a repressor protein on the DNA chain, to be dependent on magnetic field strength. As the strength of the magnetic field increased the rate of synthesis decreased at first, reaching a low of less than one-third the normal rate at an application of 0.0027 to 0.0030 gauss, then returning to the control value at an applied field strength of 0.0032 gauss. As the application increased from 0.0051 to 0.0056 gauss, the rate of synthesis increased rapidly, but fell to the normal rate when a 0.0058 gauss strength field was applied. (Magnetic field measurements at the ELF facility are generally about 0.001 gauss in the vicinity of the antennae but have been as high as 0.189 gauss.) f. Other publications Also, a part of the-administrative record are a chapter of a World Health Organization publication devoted to nonionizing electromagnetic radiation research and a Montana Department of Natural Resources Conservation Report, both of which were submitted to the Navy by IIT Research Institute in the summer of 1983. 1) World Health Organization report' In 1982, the World Health Organization published a Regional Publication devoted to nonionizing radiation protection. Although published by the World Health Organization, the book is not intended to represent the views of the organization. Rather, each chapter represents the views of its author. The particular chapter on biological effects of electromagnetic radiation is a summary of data and research in the area, including a synopsis of exposures found to be safe in experiments. The chapter covers research published before 1979, with only three sources dated 1978 or later. In his summaries and conclusions, the chapter’s author did not attempt to recommend a safe exposure standard. The author found adverse effects associated with electromagnetic fields on nervous systems. He also found evidence of cardiovascular disorders, blood changes, changes in reaction time, increases in body temperature, changes in cholesterol and triglyceride levels, and stress symptoms. He concluded that many effects could be attributed to secondary factors, that animal studies could not be used to make findings about humans, and that reported physical effects appeared to be transient functional disorders rather than organic changes or permanent injuries. Finally, he concluded that there is no danger to human health from exposures to electric fields of 20 kilovolts per meter or to magnetic fields of 0.003 gauss. 2) Montana Department of Natural Resources and Conservation report In February, 1983, the Montana Department of Natural Resources and Conservation completed a report prepared by a Dr. Sheppard who had been commissioned by the department to evaluate a 500 kilowatt transmission line proposed for installation in Montana. Sheppard reviewed human health effects of chronic exposure to electromagnetic radiation from high-voltage transmission lines. In his report, Sheppard noted both the inadequacy of existing information for reaching unequivocal conclusions about health effects and the difficulties in evaluating certain studies, such as those using epidemiological techniques. He defined safety in the context of a cost-benefit analysis, weighing human health and environmental risks against benefits to be gained from the project. Although noting that many studies disclosed biological effects from electromagnetic radiation, Sheppard discounted these effects in his cost-benefit analysis because of the uncertainty of the effects, the nature of the effects identified, and the benefits of the project. 7. Navy review of scientific information a. Environmental Review Committee In February, 1982, the Navy established an Environmental Review Committee. The committee’s function was to assist in formulating and planning implementation of environmental protection plans and to review results of environmental activities and studies. It was not assigned the task of performing a comprehensive review of the scientific literature on biological effects of electromagnetic radiation or evaluating the potential risks and benefits of Project ELF. Composed primarily of Navy personnel, the committee was responsible for monitoring and evaluating ongoing contracts and studies for environmental effects. Three nonvoting observers attended the meetings: one from the United States Forest Service, one from the Wisconsin governor’s office, and one from the Michigan governor’s office. At its May 6, 1982 meeting, the committee did review some human health studies which are described in general terms, but not identified in the minutes of the meeting. The committee concluded that field intensities associated with the ELF communication system would have no undesirable effect on occupational or public health. The committee stated that it found inapplicable the health survey results it reviewed (because ELF fields are of lower field" intensities than those encountered by the electrical workers that were the subjects of the surveys) and the epidemiology studies (because causation was not proven, all other potential causes were not disposed of, and the studies concerned electric transmission lines). The committee stated that no definitive conclusions could be determined from any laboratory research to date and that the Navy’s primate experiments must continue for at least another year before reliable analysis would be possible. In the minutes, the committee discussed the literature on biological effects in IV2 pages. At its June 2, 1983 meeting, the committee discussed the public opposition to Project ELF arising from the fear of potentially adverse health effects. The committee recommended that the Navy develop a public response, using the following arguments: 1) The position of the National Academy of Sciences, the preeminent group of scientific expertise, which found that the concer