In Re Consolidated US Atmospheric Testing Lit., No. C-84-0022-WWS.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: WILLIAM W SCHWARZER
• Citation: 616 F. Supp. 759
• Parties: IN re CONSOLIDATED UNITED STATES ATMOSPHERIC TESTING LITIGATION.
• Decision Date: 19 September 1985
• Docket Number: No. C-84-0022-WWS.

616 F. Supp. 759

IN re CONSOLIDATED UNITED STATES ATMOSPHERIC TESTING LITIGATION.

No. C-84-0022-WWS.

United States District Court, N.D. California.

August 28, 1985.

As Corrected September 19, 1985.

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Jeffrey L. Schaffer, Alan W. Sparer, Therese M. Stewart, Ethan P. Schulman, Howard, Rice, Nemerovski, Canady Robertson & Falk, Robert E. Aune, Carnes & Aune, Edward J. Nevin, San Francisco, Cal., Bruce A. Reynolds, Cupertino, Cal., James Geagan, Hoberg, Finger, Brown, Cox & Molligan, Thomas J. Brandi, Bianco, Brandi & Jones, San Francisco, Cal., Jacob M. Weisberg, Weisberg & Gordon, Fresno, Cal., for plaintiffs.

John A. Reding, Crosby, Heafey, Roach & May, Oakland, Cal., Jerome C. Dougherty, Pillsbury, Madison & Sutro, San Francisco, Cal., John L. Thorndal, Thorndal, Backus & Maupin, Ltd., Arthur L. Williams, Jr., Gen. Counsel, REECO, Las Vegas, Nev., Paul F. Figley, Jeffrey Axelrad, Leon B. Taranto, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

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MEMORANDUM OF OPINION AND ORDER

WILLIAM W SCHWARZER, District Judge.

Before the Court are forty-three consolidated actions asserting claims arising out of alleged exposure to nuclear radiation resulting from the bombing of Hiroshima or subsequent atmospheric testing of nuclear weapons. Most of the persons on whose behalf actions are brought were members of the military at the time of their alleged exposure.¹ Others participated in nuclear weapons tests as civilians.² Defendants are the United States government and contractors who participated in the nuclear weapons testing program.³

The government has moved pursuant to 42 U.S.C. § 2212, to be substituted for the contractors as defendant in these actions, and the contractors have joined in that motion.⁴ In addition, the government has

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moved to dismiss or for summary judgment in all actions based on exceptions to its liability under the Federal Tort Claims Act, (the "FTCA"), 28 U.S.C. § 2680

I. Factual Background⁵

The atmospheric nuclear weapons tests giving rise to these actions took place between the closing days of World War II and the adoption of the Partial Nuclear Test Ban Treaty in 1963. Even before these tests, the United States Government had enlisted the scientific resources of industrial firms and universities in the program to develop an atomic bomb. The Manhattan Project, which ultimately produced the bomb detonated over Hiroshima, was an unprecedented joint effort by the government, universities and industry.

Immediately following the end of World War II, the military services proposed a series of tests to determine the effects of atomic weapons. On orders of the President, a joint military task force was established to conduct the first of these tests, Operation Crossroads, at Bikini Atoll. The task force, commanded by an admiral, comprised 42,000 military and civilian personnel and numerous ships and aircraft.

In 1946, Congress adopted the Atomic Energy Act, (the "AEA"), establishing a national policy for the development and control of nuclear weapons. Under the AEA, authority was transferred from the military to the Atomic Energy Commission, (the "AEC"), which was to operate a "program of federally conducted research and development" with the "paramount objective of assuring the common defense and security." AEA, P.L. No. 585, ch. 724, 60 Stat. 755, §§ 1(a), (b)(3) (current version at 42 U.S.C. § 2011 et seq.). To this end the AEC was authorized to conduct experiments, undertake research, and develop the military applications of atomic energy either in its own facilities or pursuant to arrangements with public or private institutions. Id. at § 4(c)(2). All right, title and interest in fissionable material was vested in it. Id. at §§ 4(b), 5(a)(2). The production of atomic bombs and bomb parts was authorized, but "only to the extent that the express consent and direction of the President of the United States has been obtained...." Id. at § 6(a)(2). In addition, Congressional oversight of the AEC's activities was established by creation of the Joint Committee on Atomic Energy. Id. at § 15(a). The AEA thus established a program of pervasive "governmental control of the production, ownership, and use of fissionable material," including the development and testing of nuclear weapons. Id. at § 1(b)(4).

When the AEC took over the nuclear weapons program from the military, it acquired a complex of plants, laboratories and other facilities staffed by some 2,000 military personnel, 4,000 civilian government employees and 38,000 employees of contractors. The integral role of contractors, which started in the Manhattan Project, continued under the AEC. The University of California, Sandia Corporation and Reynolds Electrical and Engineering Co., Inc., were among those contractors.

Escalating international tensions, marked by the Berlin blockade in 1948, the confrontation with the Soviet Union over Czechoslovakia, Greece and Iran, the detonation by the Soviet Union of an atomic device in 1949, and the Korean War led the government to assign the highest priority to the development and production of nuclear weapons. Weapons tests were an essential part of that effort.

These tests were regarded as critical to national security. Presidents Eisenhower and Kennedy and the Chairman of the AEC made public statements stressing the vital importance of tests to the development of

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modern weapons needed to assure national security in the face of the threat posed by the Soviet Union. Indeed, atmospheric nuclear weapons testing was a major issue in United States-Soviet relations during this period. Beginning in 1955, testing was a topic in the disarmament negotiations. In 1958, a moratorium on tests was agreed on and was observed until the Soviet Union resumed atmospheric testing in 1961. The United States followed suit to counteract qualitative improvements in Soviet weapons. In 1963, atmospheric nuclear tests were finally banned by the Partial Nuclear Test Ban Treaty

From 1947 through 1963, the AEC in conjunction with the Department of Defense conducted 21 test series, some of which are the subject of these actions. These tests had a number of objectives, including developing weapons, planning their tactical and strategic use, determining how targets could be given protection, assessing the vulnerability of troops to the effects of detonations, and improving radiological safety. A particular objective of the tests was to determine the effects of nuclear explosions on the equipment, clothing, weapons and fighting capability of military personnel. The tests were coordinated with studies conducted at laboratories operated by contractors.

Every phase of the preparation and implementation of each nuclear weapons test series was closely controlled and supervised by government officials. Initially, proposals for tests had to be approved at various levels by the responsible divisions of the AEC and the Department of Defense. Before any test took place, a detailed Operation Plan had to be reviewed and approved by the AEC, by the National Security Council, and finally by the President.

Tests at the Pacific Proving Ground were under the control of a joint task force commander, appointed by the AEC and the Joint Chiefs of Staff. At the Nevada Test Site, tests were under the control of a Test Manager designated by the AEC. Tests were conducted in conformity with the approved Operation Plan, which incorporated radiation exposure limits established by the AEC applicable to both military and civilian personnel. Various military and civilian committees and medical and scientific experts took part in making the decisions which were incorporated into the Operation Plan. Designated units in each test organization were assigned responsibility for radiological safety.

Nuclear weapons testing was known to be an inherently dangerous activity. Aside from the recognized radiation hazards, the risks included the dangers associated with any explosive devices, the effects of unpredictable meteorological conditions, and the risks of injury inherent in any large-scale military operation.

The need to balance risks against test objectives was particularly acute in tests involving troop maneuvers. These tests were intended to expose troops to battlefield conditions to test psychological reactions and protective measures. The location and movement of those troops was a subject of controversy between the AEC and military commanders. It was recognized that the desire of the military to expose troops to realistic combat conditions could interfere with the AEC's weapons testing objectives. The arrangements ultimately incorporated in the Operation Plans represented an accommodation of these divergent requirements by the AEC and military officials. In later tests, involving large scale military maneuvers under battlefield conditions, these considerations led to delegation of responsibility for radiological and physical safety of troops to the military commanders.

II. Motions to Substitute

A. The Provisions and Effect of § 2212

In October 1984, Congress adopted § 1631 of the Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1985, (the "Act"), codified at 42 U.S.C. § 2212. It provides that an action against the United States shall be the exclusive remedy for

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injuries "due to exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United States," § 2212(a)(1), and requires any action against these contractors to be maintained solely against the United States pursuant to the FTCA. The Act applies to alleged acts or omissions of contractors "without regard to when the act or omission occurred." § 2212(a)(2)

The Act provides, in pertinent part, that:

A contractor against whom a civil action

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