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MIcRONEsIAN LEGAL SERVICES CORPORATION ATTORNEYS AND MICRONESIA COUNSELORS IGNACIO AN ASTACIO DE LSON s. EHMES SUN GIWO HA DLEY LAR HA LPERN JAMES E. SIN DING DO NALO C. WOOLWORTH
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ATTORNEYS AND MI CR ON ES IAN CO UN Sri. O}?S. MI OASV AISEK IGNACIO AN AS TACIO JESUS RAG LMAR PLCASE SE PLY TO Washington Office Department of the Interior Since we were at Ujelang last month I have been thinking about your observation that a supplemental environmental impact statement may be required with respect to the proposed resettlement of Enjebi. Within the last. few days I have been able to focus on the question and I would like to share my views with you. You know firsthand the intensity of the feeling of the people of Enewetak regarding the resettlement of Enjebi. In May of 1972 they made the first visit to the atoll since leaving it in 1947. At a meeting chaired by Peter T. Coleman, then Deputy High Commissioner, on behalf of the Trust Territory Government, a pledge was made to permit the people to plan the resettlement. Steps were immediately taken to develop a master plan for ,the program.
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At our request, architect Carlton Hawpe (who speaks Marshallese and English) was engaged by Holmes & Narver and Holmes & Narver was engaged to assist in the drafting of the master plan. It went very well. In November 1973, the plan was completed. It included two major settlements: one at Enewetak island in ‘the south and the other at Enjebi. Enjebi was included because that is what the people wanted and because no one in the government even suggested that Enjebi could not be included. In September 1974.,wh~n General Warren D. Johnson, then DNA director, came to Enewetak atoll to meet with the people and present the draft environmental impact statement, the people were informed for the first time that the Atomic Energy Commission recommended against the resettlement of Enjebi and would oppose the funding of the entire program if Enjebi were included. General Johnson was accompanied by high level representatives of the Atomic Energy Commission, the Department of the Interior, the Environmental Protection Agency and the Trust Territory Government. It was clear to all of us, that *is to the people of Enewetak and their counsel, that we had no real choice. It was a matter of acceding to the AEC “recommendation” and revisin9 the Master Plan to cut Enjebi out, or having no cleanuP and resettlement program at all. EIS, yol. I S7. . The people of Enewetak returned to Ujelang to revise the Master Plan, to move everyone to residences in the southern islands of Enewetak, Medren and Japtan. That was not an eaSy accommodation to ach,ieve, even though they are a remarkably cohensive and cooperative group, but it worked out and the revised Master Plan of March 1975 excluded Enj ebi. EIS, vol. II, Tab D. I want to make it very clear that the people of Enewetak never did agree to forego the resettlement of Enjebi. They acceded to it at the time because they hadno real choice. To be sure, the “Case 3“, which excluded Enjebi, was presented as a “recommendation.” See draft EIS S5.4.3. But the AEC had made up its mind unilaterally, in advance, and without the support of the AEC, the government’s radiation experts, prospects for funding of the program were scant if not nonexistent.
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I shall come in due course to the question whether the 1975 impact statement is adequate for today’s issues, but I should point out here that Enjebi was the issue. Early results from the 1972 radiological survey regarding conditions in the southern islands did not surprise anyone. They presented no radiological problem whatever. Enjebi and the other islands in the north were the only questionable areas from the beginning. And the resettlement of Enjebi was the most thoroughly studied single issue because it was known, if not fully ap~reciated, by the people at AEC that the resettlement’of Enjebi was the objective of prime importance to the beneficiaries of the program. It is very important to recall exactly how the AEC arrived at its adverse recommendation. During the interagency discussion which took place before the draft EIS was released in September 1974, the Director of the Defense Nuclear Agency insisted with the AEC that the Enjebi question called for a cost-benefit analysis which took into and fiscal, as well as the social and economic effects on Dixy Lee Ray, June 7, 1974. The AEC rejected that approach. Instead, it appli~d radiation protection standards. EIS, In its selection of the standards to be applied, the AEC chose the 1960 and 1961 Radiation Protection Guides (RPGs) and then reduced those numerical limits by 50% in the case of exposure to the whole body, bone marrow, bone and thyroid. Gonadal exposures were to be limited to 80% of the RPG value. Id. Appendix 111, p. 111-10 to 111-11. (This apparent~consistency was never satisfactorily explained, by the way.) We pointed out in “Radiation Protection at Enewetal Atoll” that if any radiation protection standards are to be employed in making decisions about Enewetak, it is the Protective Action Guides (PAGs), and not the RPGs. I have discovered that we were not the first to make that observation.- During review of the draft version of the AEC Task Group Report, then Deputv Director of DNA, John W. McEnery, quite
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clearly pointed out to the AEC that the PAGs applied and individually evaluated on such bases as relative risks or on, “seems wholly inadequate in such evaluations.” Letter, have had General McEnery make the related point that the RPGs do not apply at all. He did not, but his advice was quite sound all the same. The Environmental Protection Agency gave the AEC essentially the same counsel,, saying that “numerical values for the dose limits are only preliminary guidance and . . . a W. D. Rowe to Martin B. Biles, USAEC, May 17, 1974. The facts essential to a relative risk or cost-benefit analysis were all there, but despite the unanimous advice it was given, the AEC chose to decide the matter on the basis of the modified RPGs. (We pointed out in “Radiation Protection at Enewetak Atoll” that neither AEC or EpA has any authority to modify radiation protection standards. Only the ‘President can do that.) When the modified standards were applied to Enjebi, the AEC found that the projected doses would be “near or slightly above the radiation criteria” and on that basis rejected that alternative. EIS, vol. II, Tab V, p. 23. Under Case 4, residence on Enjebi was expected to increase the 30 year cancer risk from 0.3 cases to 0.8 cases. EIS, Vol. I, Table 5-13, p. 5-51. The Task Group Report did not make this kind of comparison, but it did recognize explicitly that at the dose levels of concern the risk of harm was comparatively the AEC clung to the security of the RPGs. Now , in light of the foregoing, what does the National Environmental Policy Act of 1969 require of us? We were the first to suggest that NEPA is applicable here and that an environmental impact statement was required for this project. That is a matter of record. I will not trouble you with the details, but simply mention that we insisted that the NEPA requirement of an impact statement for every - “major federal action significantly affecting the quality of
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to me as the most comprehensive radiological survey yet performed by anyone and, of course, it included Enjebi. Altogether, the radiological considerations with respect to resettlement of the atoll in general and resettlement of Enjebi in particular, consumed the largest share of effect, the entire Enewetak Radiological Survey was incorporated by reference into the EIS, a practice which is expressly permitted by the NEPA regulations. 40 C.F.R. In other words, it seems to me that the radiological implications of resettlement of Enjebi were thoroughly developed and considered in the statement. That laid the foundation for considering one of the two principal issues presented by Enjebi, that is, the radiological health effects associated with resettlement of a human population to Enjebi island. I shall come back to this matter of health effects shortly. The other aspect of the Enjebi question which must be considered in any.decision are the cultural implications of denying resettlement. That matter, too, was adequately covered in the course of the development of the dr,aft EIS and the EIS itself. The importance of Enjebi to the people of Enewetak was treated in Vol. I ss3.4, 3.5, 4.5, 5.4.1.3, At--the latter reference; you will find the observations of Dr. Robert C. Xiste, which standing alone probably say all that can be said about the cultural significance of Enjebi to the people who want to resettle there: The people of Enjebi will be greatly disappointed. And it is not a simple matter of not being able to return to what they think of as home. Marshallese attitudes regarding land, particularly ancestral homelands are difficult for Westerners to appreciate. There is almost a sacred quality about an islander’s emotional attachment to his home atoll — and more specifically — those parcels of land within that atoll to which he has rights.
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As I have said, the two principal considerations which are relevant to a decision about Enjebi, are the likely health effects from radiation exposure, if the island is to be resettled, and the likely adverse impact of denying The dose estimates were done and set forth in the AEC Task Group Report and in S5.6.1 of the EIS. The risk estimate, that is the estimated number of health effects associated with each resettlement alternative, was calculated and set forth in Table 5-12, Vol. I of the EIS. The same subject is treated in the text at S5.6.2. A comparison of the health effects for all five cases is contained in Table 5-13 at p. 5-51. The health effects predicted in 1975 for the resettlement of Enjebi are not substantially different from those which have been calculated on the basis of the most recent data. The dose estimates which we find in the EIS, at s5.6.l (which are in turn drawn from the AEC Task Group Report and the Enewetak Radiological Survey) , are somewhat higher than current predictions, I suspect, because of the unrealistic dietary model which.was used. See Enewetak overestimate the total dose via the food chains. . . .“ Id. p. 497.) In any case, we were faced then with health =ects on the order of less than a single case of cancer or a single genetic defect as a result of resettlement of Enjebi, a prospect essentially the same as we now have I have not discussed the concern with exposure from the transuranics via the inhalation pathway. That situation has been improved, insofar as more rigorous permissible limitations have been imposed than those included in the impact statement. I am not sure of this, however, but it seems to me that the soil removal may have reduced the concentrations of fission products as well. While it seems clear to me that the proposal to resettle Enjebi was thoroughly studied in 1975 in the course of the environmental impact statement, there is one serious flaw
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in the decisionmaking process which was based upon it. As we have said, the AEC insisted that all questions of radiological health and safety be resolved in terms of radiation protection standards, rather than the more realistic basis of expected health effects from projected doses of radiation. See EIS, Vol. I, SS5.3.2 to 5.4; and Vol. II, Tab B; pp. 4-5. This is not the place to devote the attention it deserves to the question of the relevance and utility of United States radiation protection standards to the resettlement of Enewetak atoll. You have our working on a revised version which will incorporate the risk estimates recently performed by our advisors. Suffice it to say here that it is simply not possible for one to make decisions in matters of this kind in terms of numerical limits which are in themselves the result of one kind of cost-benefit analysis of potential adverse health effects weighed against known benefits of the use of radiation by members of a large population. But take the Protective Action Guides, for the sake of discussion, and’ apply them to the case at hand. The question then becomes which will do the people of Enewetak more harm, living at Enjebi or denial of that opportunity? And a closely related, extremely important question: What will do the people of Enewetak the greater harm, permitting them to decide their own fate, or denying them that right? When measured by the major concern which we all share, that is the potentially adverse health effects of radiation exposure, the risk today, if anything, is lower than in 1975, when the predicted healt~ effects contained in the EIS (Vol. I, Tables 5-12 and 5-13), are compared with those based upon the most recent dose assessment. These are the facts essential to rational consideration of and decision in this matter. The most significant difference between 1979 and 1975, is that the people of Enewetak are now exercising their last chance to take a look at this matter. They have made their own evaluation and called upon you to reconsider. The relevant facts, as set forth in the EIS, are essentially the same today as they were in
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1975. What we are asking you to do is apply a different, more rational form of analysis to them. Indeed, the new dose assessment done by Lawrence Livermore Laboratory and the risk estimates done by our own independent advisors simply confirm the essential accuracy of the information contained in the EIS. What is required is the preparation of a “record of decision” in accordance with 40 C.F.R. S1505.2. In response to the October 8 request by the people of Enewetak, the earlier Enjebi decision shoul~ be reconsidered. In other words the decisionmaking process which is to be guided by 40 C.F.R. Part 1505 should be commenced and the “alternatives described in the environmental impact statement” should be considered anew. Id. s1505.l(e). Then the decision taken and the reasoning by ch it was reached, including a discussion of alternative courses of action which were considered, are not to be included in the impact statement itself, but rather set forth in “a concise public record If you would like to discuss this matter, you have only to R.G. Van Clever OTA
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