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Honorable Peter R. Taft Assistant Attorney General RC~ Land and NaturaI Resources Division General Litigation Section Box .?~~ This Is in response to your October 20, 1975 request for a complete litigation report on this action insofar as the activities of the Energy Research and Development Administration (ERDA) are concerned. The principal thrust of this report is to provide information which may be used in the preparation of an -answer to the amended complaint. We understand that the answer is to be filed on December 12, 1975. We are not including, at this time, any affidavit for use in opposing the request for preliminary injunction (to be heard January 30, 1976) because of the likelihood that plaintiffs may again change the exact nature of their demand for relief. We will, of course, provide appropriate affidavits in advance of the January 30 hearing. Department of the interior and ERDA staff members are currently working on a joint presentation to be made to the Office of F!anagerrent and Budget regarding the question of funding for the proposed aerial *. radiological survey. We will keep you informed of the status of .- . Enclosure 1 to this letter is a paragraph-by-paragraph statement of ERDA’s pos;tion in response to the amended complaint. Where another defendant agency has a more direct concern, we have deferred to the views of that agency, even though we may have no reason to doubt the accuracy of the allegation. Similarly, we have recommended denial of several of the plaintiffs ‘ allegations for lack of knowledse or information sufficient to form a belief as to the truth of the allegation, even though we have no reason to doubt that the particular allegations may be generally accurate. Wherever we are aware of
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specific inaccuracies in the allegations, we have set them forth in detail. Additional enclosures, identified within the text of Enclosure 1, provide additional documentation and background for If we can be of further assistance, please advise. .- Guy H. Cunningham, Ill Assistant General Counsel for Litigation and Legislation 1. Response to Complaint 3. Press Release & Ad Hoc
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1 Deny present ex-istence of NEPA with the position expressed at the Court on November 1. ERDA the informal conference with defers to the Department of the Interior (001) with respect to obligations under the ERDA denies NEPA obligations, but admits jurisdiction and 3 Deny, for lack of knowledge. . 4, 5, 6 The complaint has no paragraphs 4, 5, and 6. r I Object on should probably be made to maintenance of the suit 8* U.S. ATOMIC E~ER~*s a c ass action. Query whether members of the “class” are RG~*--~ so nuqerous as to make it Impractical to bring them all l~_.@hBox_ ~3%& lawsui t may, in fact, run counter to the true desires of note, however, that there appears to be no basis Stanley as a defendant. He has no responsibility for Bikini-related activities, except to provide logistic support as directed. See also our response to Interrogatory No. 1, previously furnished. 10 8 ERDA defers to Department of Defense (DOD) (though we note the obvious, that Schlesinger is no longer Secretary). 11, 12, 13, 14 ERDA defers to DOI.
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Admit existence of Trusteeship Agreement, which, however, speaks for itself. . ERDA believes this allegation is correct, but defers to DOD and DOI. Enabling Act speaks for itself. ERDA defers to DOI. ERDA has no reason to deny what we believe to be the general thrust of the paragraph though we lack specific knowledge to admit the last two sentences. The use of the present tense in the first sentence is also troubling, in viewof “Release of Rights to Bikini Atoll,” executed April 1951 (reprinted in Enclosure 2 at 551-552). Out t abundance of caution, the paragraph should be den’ Admit the first sentence. Deny second sentence. discussion at pages 508-sIO of Enclosure 2). We defer to DOD (particularly the Navy) as to the third sentence, though we doubt that any such promise was authoritatively made.
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Deny for lack of knowledge. We defer to DOD, though we believe the allegation is accurate. ERDA would deny for lack of knowledge, though we defer to Deny for lack of knowledge. Deny for lack of knowledge, particularly as to characterization of environment as alien. Defer to DOD. Deny for lack of knowledge. Defer to DOD. Deny for lack of knowledge. Defer to DOI. Deny for lack of knowledge. Defer to DOI. Deny for lack of knowledge. Defer to DOI. Deny for lack of knowledge. Defer to DOI. Deny for lack of knowledge. Defer to DOi. Defer to DOD. Admit last sentence. Defer to DOD on remainder. I)oEmCHI~ As used in this paragraph, dates are a problem because of the international date line. They place shot “Bravo” as February 28, while we place it at March 1. With this caveat, our comments, sentence by sentence, are:
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44 3d sentence - deny, Insofar as it alleges shot “Bravo” was dropped from an airplane. It was a ground shot. 5th sentence - ERDA admits that some land was destroyed but denies that an additional pass from the ocean to the lagoon was excavated. NOTE : The foregoing sentence is unclassified , and similar language should be used. AI1 reports which go into much greater detail, insofar as we are presently aware, are classified. There seems to be no need to raise any classification Ist sentence - admit. 2d sentence - deny. In absence of references to quantity, Admit that the nand radionucl ides were introduced into the Bikini environment 4th sentence - Admit, since literally true, but be aware that many of these radionucl ides have decayed to point where no longer detectable.
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45 5th sentence - Admit that some of the radioactive materials will be taken and breadfruit trees, but deny that concentrated in the fruit. up by pandanus they will be Admit. Note, however, that an admission that certain effects “can” occur, is not an acknowledgment that they will. Note also, the complete absence of quantification in this paragraph. We defer to DOD, but think it pertinent to note the fact that a concern was renmteness from all population concentrations, not just U. So citizens. Admit first sentence, deny last two. Accuracy of dollar figure in second sentence is speculative. Last sentence is argumentative and may well be untrue. 1st sentence - defer to DOD. See also comments on 2d sentence - defer to DOI. Statement is probably true as-to many Bikinians, but not necessarily all. See conwnents on propriety of class action (Paragraph 7). Deny for lack of knowledge. This paragraph is hard to respond to since we don’t see the point of it. Therefore, we suggest that the first sentence (which 1s rather argumentative) and the last be denied for lack of knowledge and information sufficient to forma belief.
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52 The middle two 53 Defer to DOI. sentences are straightforward and could 55 Though we defer to DOI, this paragraph should probably be . denied for lack of knowledge. 56 We defer to DOI, though we note that we doubt that this allegation is accurate. . 58 Admit that survey was conducted, but deny that its purpose was homeland.” Actual purpose was to determine the radiological status of the atoll. Information acquired would, of course, be used in any decision (not AEC’S to make) regarding return. . 59 Admit first and last sentence. Deny second sentence. The statement in quotes, “it would be radiologically safe to allow the Bikini people to return to their home atoll,” was not made by the AEC Ad Hoc Committee and does not appear in their report. {t does, however, appear in an AEC press release describing the report, which we can’t now disown. The 1anguage used by the Ad Hoc Com~~~C~~w result from repatriation of the Bikini people do not offer a significant threat to their health and safety.” Thus, radiation exposure is expected and while the risk is not zero, it was considered acceptable in light of benefits
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to be received. A copy of the Ad Hoc Conxnlttee’s report (and accompanying press release) is enclosed as Enclosure 3. In view of the but the record should be kept Deny commencement of “a major speaks for itself. We deny the existence of an “integrated, interagency program.” We admit that the primary responsibilities of the three agencies have been accurately set forth. We deny, however, that the agencies “entered into an agreement” if that phrase is intended to describe a written agreement. (AEC has, in correspondence with Micronesia Legal Services, used the phrase “made an agreement.” See Enclosure 5, letter to Defer to DOI. Deny. Actual reconrnendation is set forth in paragraph 2f of Ad Hoc Cormnittee report (Enclosure 3). Note that it recommended soil removal for pandanus only, not “crop trees,” and did not recomnend soil replacement at all. ERDA lacks knowledge as to whether the recommendation was followed.
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but deny that recommendation was that such be taken “from other less radioactive island or reef areas.” No reconrnendation was made as to source. 2d sentence - deny. Recommendation. is being followed, though not yet complete. Those houses occupied had the coral and there is no believe others won’t get it before occupancy. See generally, Enclosure 4, Exposure Rate Reduction on Bikini Island due to Concrete Dwellings (WASH-1273). Deny. AEC recormnended that for making concrete, sand from Bikini island may be used and coral aggregate (already stockpiled and monitored) from the Peter-Oboe complex (nearby Islands) would be acceptable for buildings on Bikini and Eneu Islands. The AEC recommendations were followed. Results of radiological monitoring indicate that radiation levels inside the first houses constructed on Bikini Island - , is approximately 50 percent lower than outside the houses. This was expected provided construction materials contained low levels of radioactivity. See generally, Enclosur Letter speaks for itself. ERDA does not admit that plaintiffs have accurately interpreted that letter, as set forth below:l By letter of January 14, 1971, High Commissioner, Edward Johnston, nquired of the Manager, AEC Iiono’ulu
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Area Office, about the safety of work crews planting coconuts in the Peter-Oboe complex. Also, during a trip by Dr. Robert Conard of Brookhaven National Laboratory, he was asked whether wrk crews could drink well water on Bikini Island. The context of both the question and the answer provided in the letter from Dr. Biles of June 17, 1971, is use of well water by work crews. The answer does not apply to permanent.— , residents wherein any radioactivity intake from use of well water would be added to intake from the rest of the diet consisting of locally grown foods. Except for fish and some coconut, the diet of a work crew would consist primarily of imported food. Use of well water by permanent residents of Bikini Island is a more complex question. ERDA is to provide additional guidance on use of well water on both Bikini and Eneu Islands when results of well water samples collected in June have been evaluated. This guidance will relate to radiological findings. Guidance on water quality considering its mineral or bacteriological content is more properly the responsibility of Trust Territory Health Officers and possibly Public Health Service. 2d sentence - deny. There was no construction of housing underway at Bikini Atoll in 1974 or since that time.
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The DOI effort during the 1974-75 period has been development of a Bikini Master Plan that contains plans for Phase II housing construction to begin sometime in the future. This planning was stopped awaiting advice from ERDA. At a meeting in January 1975, with DOi and Trust Territory representatives and others, ERDA staff agreed to evaluate preliminary plans for Phase ii “ housing construction provided by Trust Territory. Additional field work at Bikini Atoll was needed to develop more precise information on external radiation in areas identified in the plan for additional housing construction and to update calculations of total radiation doses for future residents of Bikini and Eneu islands. An important feature of these calculations would be forecast of doses received at future times when locally grown foods would come to be a major part of the diet. These ., foods, not yet available in any quantity, would include new items not known to have been grown in the atoll in the past. DubMcHlvm Adetailed survey of external gamma radiation levels on Bikini and Eneu islands was conducted by ERDA and ERDA contractor ground monitors in June 1975 after support for an aer al survey from DOD could not be ng to pressures from DOI and Trust
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Territory representatives for early advice on location of the second group of houses, preliminary results of the June 1975 survey and draft conclusions and recommendations were presented at a meeting in August 1975. Dose estimates for external radiation for six options with residence on Bikini and Eneu Islands were presented. These were on a firm basis since results of the external radiation portion of the survey were available a few weeks after the survey. Dose estimates for internal exposures based on June 1975 results could not be made since laboratory analysis of collected samples would take many months. Rough estimates of internal dose were made using analogy with Enewetak findings. The tentative conclusion presented was that while houses already constructed on Bikini Island could be occupied with radiation doses held within prescribed guidelines, given a choice , any additional construction of houses should be on Eneu Islands where radiation exposures are known to be lower than Bikini Island. Trust Territory staff agreed to revise their plans. ERDA agreed to provide additional guidance in about six months when laboratory analysis of samples would be completed. The draft preliminary report reviewed at
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ERDA s SUGGESTED RESPONSE AND/OR COMMENTS (Continued) the January 15, 1975, planning meeting has previously been furnished to you. Ist sentence - admit. 2d sentence deny. What Dr. Biles said was that Federal Regulations regarding radiological safety had become more stringent in their application since 1968 when the decision to return the ~ikini people to their atoll was made, ite., that mre emphasis is being given to keeping exposures “as low as practicable.” The basic numerical radiation standards for protection of the public are the same now as in 1968. See also general comments on paragraph 83. 76 Admit. (The letter speaks for itself. Aswill be seen in our comments on the next paragraph, we disagree with Plaintiffs’ reading of portions of the letter). 77 1st sentence - Admit. Second and third sentences, deny. This paragraph is very misleading and does not present all of the facts. We consider the statement of Mr. Hughes valid n only as it pertains to a survey of the entire atoll. For the purpose intended -- dose estimation in connection with a decision about the location of the second group of houses --
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‘the June 1975 survey of Bikini and Eneu lslancfs by ground monitors, using portable and vehicle mounted instruments, was most satisfactory for making such dose estimates. The optimal technique …
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