[Senate Hearing 109-178]
[From the U.S. Government Publishing Office]
S. Hrg. 109-178
NUCLEAR TESTING PROGRAM IN THE
MARSHALL ISLANDS
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
EFFECTS OF U.S. NUCLEAR TESTING PROGRAM IN THE MARSHALL ISLANDS
__________
JULY 19, 2005
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
RICHARD M. BURR, North Carolina, TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri DIANNE FEINSTEIN, California
CONRAD BURNS, Montana MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia JON S. CORZINE, New Jersey
GORDON SMITH, Oregon KEN SALAZAR, Colorado
JIM BUNNING, Kentucky
Alex Flint, Staff Director
Judith K. Pensabene, Chief Counsel
Bob Simon, Democratic Staff Director
Sam Fowler, Democratic Chief Counsel
Josh Johnson, Professional Staff Member
Al Stayman, Democratic Professional Staff Member
C O N T E N T S
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STATEMENTS
Page
Akaka, Hon. Daniel K., U.S. Senator from Hawaii.................. 1
Faleomavaega, Hon. Eni, Delegate from American Samoa............. 16
Krawitz, Howard M., Director of Australia, New Zealand and
Pacific Island Affairs, U.S. State Department.................. 2
Lum, Thomas, Specialist in Asian Affairs, Congressional Research
Service........................................................ 47
Mabuchi, Dr. Kiyohiko, Division of Cancer Epidemiology and
Genetics, National Cancer Institute, National Institutes of
Health, Department of Health and Human Services................ 6
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 11
Palafox, Dr. Neal A., MD, MPH, Professor and Chair, Department of
Family Medicine and Community Health, John A. Burns School of
Medicine, University of Hwaii.................................. 40
Plasman, James H., Chairman, Nuclear Claims Tribunal, Republic of
the Marshall Islands........................................... 33
Simon, Steven L., Ph.D., Scientist............................... 51
Yamamura, Hiroshi V., Senator, Republic of the Marshall Islands.. 30
Zackios, Gerald M., Minister of Foreign Affairs, Republic of the
Marshall Islands............................................... 21
APPENDIXES
Appendix I
Responses to additional questions................................ 61
Appendix II
Additional material submitted for the record..................... 85
NUCLEAR TESTING PROGRAM IN THE MARSHALL ISLANDS
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TUESDAY, JULY 19, 2005
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m. in room
SD-366, Dirksen Senate Office Building, Hon. Daniel K. Akaka
presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
Senator Akaka. The Committee on Energy and Natural
Resources will be in order.
I regret that Senators Domenici and Bingaman are unable to
attend our hearing this afternoon because of the House Senate
Conference Committee on National Energy Legislation which is
now underway. And I was there and was able to come back here to
chair this hearing.
I would like to welcome all of you here on their behalf and
to extend their apologies for this unavoidable conflict.
I know that many of you have traveled very, very far to be
here and I am sure you all agree that this is important that we
proceed with the hearing so that the committee can move forward
on this important issue as soon as possible.
The U.S. Nuclear Weapons Testing Program in the Marshall
Islands has caused major damage in Enewetak and Bikini,
contaminated other northern atolls, and caused cancers and
other illnesses among hundreds of Marshall islanders.
While there was a legal settlement of claims approved under
the Compact of Free Association in 1986, that agreement left
open the opportunity for the Marshall Islands to seek
additional compensation if there are changed circumstances that
render that settlement inadequate.
In addition, Congress authorized further ex gratia
assistance as authorized by section 105(c) of the Compact and
has provided over $215 million for further health care,
agricultural assistance, cleanup, and resettlement.
Since the 1960's, this committee has worked with the
Marshall Islands and the administration to respond to the
legitimate needs of the communities affected. And I hope that
today the committee, administration, and Marshall Islands will
establish a basis to continue to work together to address the
legitimate needs of those affected.
In the year 2000, the Marshall Islands submitted a petition
to the Congress seeking additional assistance in five areas:
Health care; personal injury; loss of use; cleanup; and
expanded program assistance in areas of health and
environmental monitoring.
I thank our witnesses for coming today. We have several
world experts on conditions in the Marshall Islands and others
who have traveled thousands of miles to be here.
I particularly want to thank those from the CRS who have
assisted the committee in analyzing the enormous amount of
technical information.
I look forward to hearing from our witnesses. Our first
panel will be the representatives from the Departments of State
and Energy and our witness from the National Cancer Institute.
I ask that these witnesses remain until the end of the hearing
to be available to respond to questions.
I ask that all witnesses summarize their statement to 5
minutes or less. Your entire statements will be made a part of
the record.
I would like to start with Mr. Krawitz.
STATEMENT OF HOWARD M. KRAWITZ, DIRECTOR OF AUSTRALIA, NEW
ZEALAND AND PACIFIC ISLAND AFFAIRS, U.S. STATE DEPARTMENT
Mr. Krawitz. Mr. Chairman, thank you very much for inviting
me here today. It is a pleasure to be able to speak with you on
this issue.
As you mentioned, Mr. Chairman, the United States carried
out 67 nuclear tests in the northern Marshall Islands between
1946 and 1958. The United States greatly regrets the damage
this testing caused, especially the 1954 BRAVO action that
affected some 253 people.
The United States was and still is concerned about the
health and well-being of the Marshall Islands people and the
environment.
In the 1950's, the United States began programs to monitor
and remediate the effects of these tests. We added programs in
the 1960's, the 1970's, the 1980's which continue to address
these problems today.
Since the 1950's, we have spent hundreds of millions on
environmental and health problems related to nuclear tests in
the Marshall Islands. The administration report to Congress
describes in detail money spent on environmental remediation,
past and present, and medical care for Marshall Islanders.
Section 177 of the 1986 United States/Republic of the
Marshall of Islands Compact of Free Association, which is still
in force today, fully settled all claims, past, present, and
future, related to our nuclear test program.
As you mentioned, Mr. Chairman, article 9 of the section
177 settlement, the changed circumstances provisions, so
called, defines conditions under which the Republic of the
Marshall Islands government may ask Congress to consider
additional compensation for nuclear test-related injuries.
Article 9 neither guarantees additional compensation nor
commits Congress to authorize or appropriate funds.
In 2000, the Marshall Islands government asked for $3
billion in additional compensation. Congress asked the
administration to evaluate this request. The State Department
convened a working group of some ten U.S. Government department
and technical agencies to review existing scientific studies of
nuclear testing's impact on the Republic of the Marshall
Islands.
The group concluded that the submission does not meet the
changed circumstances criteria defined in article 9 and that
there is no legal basis under the settlement for considering
additional payments. State reported the administration's
conclusions to Congress in January 2005.
I want to end my brief testimony with a very important
point. The administration was asked to evaluate a specific
issue, does the request of the Marshall Islands government
qualify as changed circumstances under article 9 of the section
177 settlement agreement.
Our report addresses only that issue. It does not look at
overall United States/Marshall Islands' relations, our shared
history, or the common values that make our friendship strong.
Nuclear issues are but one aspect of our relationship.
The Republic of the Marshall Islands received hundreds of
millions in Compact dollars during the first 18 years of free
association, roughly 1986 to 2004. The amended Compact makes
health care a primary focus. The United States and the Republic
of the Marshall Islands will spend some $16 million in Compact
funds on health care in 2005 and similar amounts in each of the
next several years.
The amended Compact set up a trust fund to give the
Republic of the Marshall Islands a source of income after grant
assistance ends. The United States will provide over $1.2
billion in direct assistance and trust fund contributions over
the next 20 years.
The administration recognizes there are serious and
continuing public health and medical challenges. The Republic
of the Marshall Islands is eligible for many health and human
services, departments of public health grant programs just as
U.S. States and territories are.
The Interior Department provides targeted assistance. The
Energy Department provides monitoring and specialized medical
care. The State Department stands ready to serve as the foreign
policy bridge that unifies these and other elements in
cooperation on issues of mutual concern.
The Republic of the Marshall Islands is our global partner
and valued friend. We remain committed to building a better
future for the people of the Marshall Islands. We look forward
to continuing to work together on a host of issues of mutual
concern to both our nations.
This concludes my brief testimony for today. I will be
happy to take questions now or at the end of Dr. Mabuchi's
remarks if you would like me to wait till then.
Unfortunately, I am afraid I am going to have to ask the
committee to dismiss me after Dr. Mabuchi's remarks and any
other questions that you might have for the two of us. However,
one of my staff will remain behind to take any additional
questions and we will endeavor to get back to you in writing
within 24 hours.
Thank you very much for the opportunity to make this brief
statement today.
[The prepared statement of Mr. Krawitz follows:]
Prepared Statement of Howard M. Krawitz, Director of Australia, New
Zealand and Pacific Island Affairs, U.S. State Department
Chairman Domenici, Senator Bingaman, distinguished Senators, thank
you very much for the chance to speak with you today about the
important topic of the Government of the Republic of the Marshall
Islands' Changed Circumstances Request and the Administration's report
prepared at the request of the Congress.
I will start with a brief historical overview. The United States
carried out sixty-seven underwater, surface and atmospheric nuclear
tests on and near the Bikini and Enewetak atolls in the northern
Marshall Islands between 1946 and 1958, while they were part of the
Trust Territory of the Pacific Islands. The United States still deeply
regrets the 1954 ``Bravo'' accident that harmed 253 downwind islanders.
We remain concerned about the damage done to the people and environment
of the Marshall Islands caused by the nuclear tests in the 1940's and
1950's.
The U.S. Government established programs for the people of the
Marshall Islands to monitor and remediate the effects of those tests
beginning in the 1950's, with additional programs created in the
1960's, 1970's and 1980's. We remain engaged in addressing these
problems. The United States has spent more than $531 million for health
and environmental remediation specifically related to the nuclear
testing program since the 1950's. That assistance is worth over $837
million in 2003 dollars. Our colleagues in the Department of Energy
continue to provide a superior level of health care service for those
people directly affected by the nuclear tests, and have in fact
provided health care to other populations as well for many years. The
Administration's report in January outlines in great detail in an
appendix the hundreds of millions of dollars the United States has
spent in past and present U.S. remediation efforts.
In the 1980's, the United States and the Marshall Islands
negotiated the Compact of Free Association, which went into effect on
October 21, 1986 (PL 99-239 Stat. 1770). The Compact included a ``full
settlement of all claims, past, present and future'' resulting from the
U.S. nuclear testing program. This Section 177 Settlement Agreement
provided $150 million to the Marshall Islands to establish a Nuclear
Claims Fund and an independent Nuclear Claims Tribunal to adjudicate
all claims.
Article IX of the Section 177 Settlement Agreement, entitled
``Changed Circumstances,'' is the only provision for the Government of
the Republic of the Marshall Islands (RMI) to request the United States
Congress to consider additional compensation for injuries resulting
from the nuclear tests. In order to be the subject of such a request to
Congress under Article IX, an injury:
1. must be loss or damage to property and person of the
citizens of the Marshall Islands;
2. must result from the Nuclear Testing Program;
3. must arise or be discovered after the effective date of
the Agreement (October 21, 1986);
4. must be injuries that were not and could not reasonably
have been identified as of the effective date of the Agreement;
and
5. such injuries must render the provisions of the Section
177 Settlement Agreement manifestly inadequate.
In Article IX, the Governments of the Marshall Islands and the
United States also noted: ``It is understood that this Article does not
commit the Congress of the United States to authorize and appropriate
funds.''
In 2000, citing Article IX of the Section 177 Settlement Agreement,
the Government of the Republic of the Marshall Islands submitted to the
President of the Senate and the Speaker of the House of Representatives
a request that certain claims totaling over $3 billion be considered by
the Congress for compensation. In March 2002, the Senate Energy and
Natural Resources Committee and the House Resources Committee formally
asked the Administration to evaluate the RMI's request. Over the
following months, the State Department convened a working group of U.S.
Government departments and technical agencies that carefully and
methodically reviewed the request and the existing scientific studies
of the impact of nuclear testing in the Marshall Islands.
On January 4, 2005, the State Department submitted the
Administration's evaluation to Chairman Domenici, Senator Bingaman,
Chairman Pombo and Congressman Rahall. The RMI's submission to Congress
did not meet the criteria of ``changed circumstances'' as required by
Article IX of the Section 177 Settlement Agreement, and there is
therefore no legal basis under the Settlement Agreement for considering
additional payments. I am submitting a copy of the complete
Administration report as an attachment to this testimony for the
record.
Let me briefly address the major areas in which the RMI argues
``changed circumstances.'' First, the RMI asserts that exposure to
radioactive fallout significantly affected an area well beyond the
northern atolls and islands. The vast majority of scientific evidence,
however, documents that the elevated levels of radiation are limited to
the most northerly atolls and islands, and that even many historically
inhabited northern islands can be resettled under specific conditions.
At the time of the Section 177 Settlement Agreement, the Marshall
Islands acknowledged that, within the northern atolls, some islands
would be less habitable than others and some would only have limited
use. The Government of the Marshall Islands took the responsibility to
control the use of areas in the Marshall Islands affected by nuclear
tests.
Second, the RMI seeks comprehensive primary, secondary and tertiary
health care systems to serve all the people of the Marshall Islands for
fifty years. This argument draws an unsubstantiated link between
current public health and medical problems in the Marshall Islands and
the U.S. nuclear testing program. In fact, the United States has
provided extensive medical care to the populations living on the atolls
where testing occurred. The Section 177 Settlement Agreement provided
$2 million per year for 15 years from the Nuclear Claims Fund to
provide medical care to the people of Bikini, Enewetak, Rongelap and
Utrik atolls. The estimated population of the four atolls in 1954 was
approximately 500 people. That program currently serves 13,460 people,
fully one-quarter of the national population. Due to subsequent
Congressional action, these communities are receiving similar services
through a grant from the Department of the Interior through September
30, 2005.
In addition, starting in 1954, Congress mandated a special medical
program for the members of the population of Rongelap and Utrik who
were exposed to radiation resulting from the 1954 ``Bravo'' test (253
people). This program is run by the Department of Energy. Neither the
Section 177 Settlement Agreement nor the larger Compact envisioned the
United States providing comprehensive health care for all the people of
the Marshall Islands indefinitely, and there is no basis under Article
IX to request such a program.
Regarding three other categories personal injury, loss of land use
and hardship, and atoll rehabilitation the RMI claims as ``changed
circumstances'' the fact that the Nuclear Claims Fund has had a mixed
earnings record and that the Nuclear Claims Tribunal, set up and run by
the Marshall Islands, has chosen to award more funds than generated by
the Nuclear Claims Fund. The Tribunal's decisions to set award amounts
well above the amount of funds available in the Nuclear Claims Fund do
not constitute ``changed circumstances'' under Article IX of the
Section 177 Settlement Agreement.
The final broad category of RMI claims includes occupational
safety, nuclear stewardship and education. The Governments of the
Marshall Islands and the United States decided not to include those
types of programs in the Section 177 Settlement Agreement. The lack of
those programs and the desire to have such programs are not ``changed
circumstances'' as defined in the Settlement Agreement.
I would like to close by underscoring an important point. The
Administration's report evaluated the specific question of whether the
Government of the Republic of the Marshall Islands' submission
qualified as ``changed circumstances'' under Article IX of the Section
177 Settlement Agreement. The Administration's report does not describe
the overall relationship between the United States and the Republic of
the Marshall Islands. Shared history and common values make our
friendship with the Marshall Islands one of the strongest in the world.
The history of the nuclear testing program and the settlement of
claims arising from that program are but one facet of the unique and
longstanding friendship our two nations enjoy, a relationship of mutual
understanding and shared values that remains strong today. The Compact
of Free Association of 1986 and the amendments that went into effect
just last year link our two nations together for the foreseeable future
and guarantee direct U.S. assistance to the RMI for twenty years. Under
the amended Compact, our two nations have established a trust fund to
provide an ongoing source of income for the RMI after Compact
assistance ends to be used for the same purposes as current assistance.
The amended Compact highlights health care as one of the two primary
focus areas out of six sectors for assistance grants. For 2005, the
Republic of the Marshall Islands and the United States have agreed to
spend nearly $16 million on health care using Compact funds, and we
project similar amounts for each of the next several years. Hundreds of
millions of dollars in Compact funds flowed to the RMI during the first
eighteen years of free association (1986-2004), and over the next
twenty years under the amended Compact, the United States is committed
to spend over $1.2 billion in direct assistance and trust fund
contributions. The RMI also remains eligible for a number of
categorical and competitive public health grant programs administered
by the U.S. Department of Health and Human Services in the same way as
U.S. states and territories.
The Administration recognizes serious and continuing public health
and medical challenges in the Marshall Islands and supports the
Government's efforts to meet those challenges. The Republic of the
Marshall Islands is a global partner and a valued friend, and the
United States will, through the Compact and other means, remain engaged
and committed to building a better future for the people of the
Marshall Islands. We look forward to continuing to work together on a
host of issues of mutual concern to both our nations.
Thank you very much for this opportunity.
Senator Akaka. Thank you very much, Mr. Krawitz, for your
statement. And just so others know, you are the acting
assistant secretary for East Asia and Pacific in the U.S. State
Department.
And I would like to now call on Dr. Kiyohiko Mabuchi from
the National Cancer Institute, U.S. Department of Health and
Human Services.
Would you please proceed with your statement.
STATEMENT OF DR. KIYOHIKO MABUCHI, DIVISION OF CANCER
EPIDEMIOLOGY AND GENETICS, NATIONAL CANCER INSTITUTE, NATIONAL
INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES
Dr. Mabuchi. Senator Akaka and members of the Committee on
Energy and Natural Resources, thank you for the opportunity to
testify on behalf of the National Cancer Institute, of the
National Institutes of Health, and Agency of the U.S.
Department of Health and Human Services.
My testimony will describe the findings from the October
2004 correspondence with this committee and some of the
scientific uncertainties associated with our findings. I have
submitted my full statement for the record.
Last summer, this committee asked NCI for its expert
opinion on the estimated number of baseline cancers and
radiation-related illnesses from nuclear weapons testing in the
Republic of the Marshall Islands. The NCI provided this
committee with the following estimates:
About 5,600 baseline cancer cases, that is those which are
expected to occur in the absence of exposure to fallout, may
develop within the lifetime of the cohort alive during the test
years 1946 to 1958, within an estimated population size of
about 14,000. And half of those baseline cases have already
occurred.
In addition, about 500 cancers may develop as a result of
exposure to fallout radiation. Hence, exposure to fallout could
result in about a 9-percent increase in the total number of
fatal and nonfatal cancers to be expected.
We estimate that the thyroid gland was the most heavily
exposed organ because it is the target for radioactive iodines,
a major component of fallout. Of the estimated additional 500
fallout-related cancers, approximately 260 are expected to be
thyroid cancers.
We expect that about 400 of the estimated additional 500
radiation-related cancers will occur in 35 percent of the
population who were under 10 years of age when exposure
occurred.
It should be recognized that the estimated numbers of
cancers to be expected are highly uncertain because, one, dose
estimates are uncertain; two, baseline cancer rates are
approximate; and three, organ-specific doses estimated for some
atolls are so high that simple extrapolations based on
experiences of other irradiated population may not be
appropriate.
However, the doses were estimated so as to avoid
significant underestimation of the number of radiation-related
cancers expected to occur.
I would like to bring to your attention the assumptions and
uncertainties that were factored into our estimates.
First, in the absence of population-based baseline cancer
rates for the Republic of Marshall Islands, the baseline rates
representative of native Hawaiians were used as a surrogate.
Two, the dose models were developed in an unrefined
fashion. They are based, however, on our years of experience
and understanding of radiation dosimetry and weapons fallout.
We used as input data that were available to us, including
monitoring data from the 1950's.
While nearly one-third of the excess radiation- related
cancers projected for the entire Republic of Marshall Islands
could be attributed to cancers on Rongelap and Ailinginae, we
must emphasize that because of the extremely high radiation
doses received at those two atolls, current risk-projection
models are likely to over-predict incidence.
What NCI did was first perform the dose reconstruction for
the entire Marshall Islands from available exposure data, and
then develop risk assessment from mathematical tools not
refined until 2003.
Nevertheless, there are a large number of uncertainties
associated with our estimates, only some of which could be
reduced in the framework of a more comprehensive study. In the
long run, this will require a large, multidisciplinary effort
undertaken over several years at considerable cost.
The decision whether to move forward with such a study must
be made with the understanding that the likelihood of reducing
significantly the uncertainty regarding the total number of
excess cancers is quite small.
The incremental information thus gained will be of little
practical significance in terms of public health management in
the Marshall Islands. The NCI, therefore, does not believe that
a comprehensive study should be conducted.
In the short term, NCI plans to submit the dosimetry and
epidemiologic methods used to obtain this set of estimates to
peer review for publication in the scientific literature. In
this way, our work can be verified, refined, and employed by
others who take an interest in the welfare of the islanders.
I hope this information about the development of NCI's
estimates for baseline cancer incidence and radiation-related
cancer risk in the population of the Marshall Islands has been
helpful to you. I would be pleased to answer your questions.
[The prepared statement of Dr. Mabuchi follows:]
Prepared Statement of Kiyohiko Mabuchi, M.D., Dr.P.H., Division of
Cancer Epidemiology and Genetics, National Cancer Institute, National
Institutes of Health, Department of Health and Human Services
Chairman Domenici and Members of the Committee on Energy and
Natural Resources, thank you for the opportunity to testify on behalf
of the National Cancer Institute (NCI) of the National Institutes of
Health, an agency of the U.S. Department of Health and Human Services.
I am Kiyohiko Mabuchi, M.D., Dr.P.H., an Expert with the NCI's Division
of Cancer Epidemiology and Genetics Radiation Epidemiology Branch. My
testimony will describe the findings from NCI's October 2004
correspondence with this Committee, discussed below, and will describe
some of the scientific uncertainties associated with our findings.
Last summer, this Committee asked NCI for ``its expert opinion'' on
the estimated number of baseline cancers and radiation-related
illnesses from nuclear weapons testing in the Republic of the Marshall
Islands. Our Division was tasked with developing this response because
of our robust research program in radiation epidemiology, dose
reconstruction, and risk estimation.
We developed unrefined estimates of radiation doses and numbers of
radiation-induced cancers, based on: (1) measurements of Iodine-131 (I-
131) in the urine of adults from two islands, Rongelap and Ailinginae,
collected after the test BRAVO in 1954; (2) measurements of the
contents of Cesium-137 (Cs-137) and other radionuclides in the body of
inhabitants of Rongelap and of Utrik who returned to their atolls in
1954 and 1957; and (3) environmental measurement data on radionuclide
deposition provided for all atolls by the Marshall Islands-sponsored
radiological survey completed in 1994. We combined these elements with
a standard analytic approach to develop basic answers about cancer
incidence. This is, to our knowledge, the first time radiation doses
and numbers of radiation-induced cancers have been estimated in a
systematic manner over the entirety of the territory of the Marshall
Islands.
The NCI Director, Dr. Andrew von Eschenbach, sent his reply to this
Committee with the following estimates:
About 5600 baseline cancer cases (i.e., those which are
expected to occur, in the absence of exposure to fallout) may
develop within the lifetime of the cohort alive during the test
years 1946-1957, with an estimated population size of 13,940.
About half of those baseline cases, approximately 2800, have
already occurred.
In addition, about 500 cancers may develop as a result of
exposure to fallout radiation. Hence, exposure to fallout could
result in about a 9 percent increase to about 6100 in the total
number of fatal and nonfatal cancers expected.
We estimate that the thyroid gland was the most heavily
exposed organ because it is the target organ for radioactive
iodine, a major component of fallout. Of the estimated
additional 500 fallout-related cancers, approximately 260 cases
are expected to be thyroid cancer.
We expect that about 400 out of the estimated additional 500
radiation-related cancer cases will occur in the 35 percent of
the population who were under 10 years old when exposed to
fallout. Since members of this age group are now between ages
50-60, almost all of those cancers are likely to have occurred
by the end of the next few decades.
Higher excess cancer rates are expected in the populations
exposed to the highest doses that lived in the northern atolls.
Estimation of diseases other than cancer has not been made. Such
work would require expertise and data not readily available in NCI.
To obtain the cancer risk figures I have presented, three
calculations had to be made: we estimated doses, then baseline cancer
rates, and derived radiation risks from epidemiologic studies of
various irradiated populations. It should be recognized that the
estimated numbers of cancers to be expected are highly uncertain,
because: (1) dose estimates are uncertain; (2) baseline cancer rates
are approximate; and (3) organ-specific doses estimated for some atolls
are so high that simple extrapolations based on the experiences of
other irradiated populations, such as A-bomb survivors, may not be
appropriate. However, the doses were estimated so as to avoid
significant under-estimation of the numbers of radiation-related
cancers expected to occur.
I would like to bring to your attention the assumptions and
uncertainties factored into our estimates:
In the absence of registry-based baseline cancer rates for
the Republic of the Marshall Islands, the NCI Surveillance,
Epidemiology and End Results Program (SEER) \1\ rates
representative of native Hawaiians were used as a surrogate.
---------------------------------------------------------------------------
\1\ SEER: NCI's Surveillance, Epidemiology and End Results (http://
seer.cancer.gov/about/) currently collects and publishes cancer
incidence and survival data from 14 population-based cancer registries,
including the state of Hawaii, and three supplemental registries
covering approximately 26 percent of the U.S. population.
---------------------------------------------------------------------------
Dose models were developed in an unrefined fashion. They
are, however, based on our years of experience and
understanding of radiation dosimetry and weapons fallout. We
used as input data all that were available to us, including
monitoring data from the 1950s.
To present the best figures for this particular request, we
made assumptions that likely have led to over-estimates of the
average doses received and of the number of projected
radiation-related cancers. For example, we assumed a population
size from the 1958 census, even though most of the exposure was
received years before when the population is believed to have
been smaller. Lifetime cancer risks from radiation exposure
were then estimated using risk projection models developed over
many years at the NCI.
While nearly one-third of the excess radiation-related
cancers projected for the entire RMI could be attributed to
cases on Rongelap and Ailinginae, we must emphasize that,
because of the extremely high radiation doses received at those
two atolls, current risk-projection models are likely to over-
predict incidence. Since lifetime risk is generally
proportional to dose, the assessment of lifetime risk for
persons who received particularly high doses generates an
estimate that all such persons will develop a radiation-related
disease. Since we cannot say for certain that will be the case,
the estimated numbers of radiation-related cancers over the
whole nation should be treated as an upper limit of cases.
As NCI wrote in its response to this Committee's questions, there
is a large library of published scientific literature and estimation
tools, many of which we used to develop unrefined dose and risk
estimates for the exposed populations. What NCI did last summer was to
perform the first dose-reconstruction for the entire Marshall Islands
from available exposure data, and then develop risk assessment from
mathematical tools not refined until 2003. Nevertheless, there are a
large number of uncertainties associated with our estimates, only some
of which could be reduced in the framework of a comprehensive study. In
the long run, this would require a large, multidisciplinary effort
undertaken over several years at considerable cost. The decision
whether to move forward with such a study must be made with the
understanding that the likelihood of reducing significantly the
uncertainty regarding the total number of excess cancers is quite
small. The incremental information thus gained would be of little
practical significance in terms of public health management in the
Marshall Islands. The NCI, therefore, does not believe that a
comprehensive study should be conducted.
In the short term, NCI plans to submit the dosimetry and
epidemiologic methods used to obtain this set of estimates to peer-
review for publication in the scientific literature. In this way, our
work can be verified, refined, and employed by others who take an
interest in the welfare of the Islanders.
I hope this information about the development of NCI's estimates
for baseline cancer incidence and radiation-related cancer risks in the
population of the Marshall Islands has been helpful to you. I would be
pleased to answer your questions.
ESTIMATED ROUNDED NUMBERS OF CANCERS IN THE REPUBLIC OF THE MARSHALL
ISLANDS
------------------------------------------------------------------------
Time period
-----------------------------------
2004 and
1946-2003 future Lifetime
years
------------------------------------------------------------------------
Thyroid cancers
Without fallout................... 100 30 130
Due to fallout.................... 160 100 260
-----------------------------------
Total........................... 260 130 390
-----------------------------------
Increase due to fallout......... 160% 330% 200%
All cancers
Without fallout................... 2,740 2,860 5,600
Due to fallout.................... 240 290 530
-----------------------------------
Total........................... 2,980 3,150 6,130
-----------------------------------
Increase due to fallout......... 9% 10% 9%
------------------------------------------------------------------------
ESTIMATED EXCESS (RADIATION RELATED) CANCERS BY ATOLL GROUP AND ORGAN
----------------------------------------------------------------------------------------------------------------
Southern atolls
Other ------------------------ Totals (number
Rongelap, Utrik northern Low Very low of baseline
Ailinginae atolls \2\ exposure exposure cancers in
atolls \3\ atolls \4\ parentheses)
----------------------------------------------------------------------------------------------------------------
Population size \1\................. 82 157 2,005 3,834 7,862 13,940
Leukemia............................ 1.5 0.61 2.1 0.44 0.27 5 (123)
Thyroid............................. \5\ 43 46 132 26 15 262 (127)
Stomach............................. 8.4 1.4 4.4 0.69 0.37 15 (326)
Colon............................... \5\ 64 31 49 9.2 4.0 157 (470)
Other cancers....................... 31 8.5 39 8.6 5.9 93 (4550)
All Cancers combined (rounded \6\ 148 87 227 44 26 532 (5596)
totals)............................
----------------------------------------------------------------------------------------------------------------
\1\ Estimated from 1958 census (except for evacuated populations) as described in text.
\2\ Ailuk, Mejit, Likiep, Wotho, Wotje, Ujelang.
\3\ Lae, Kwajalein, Maloelap, Namu, Arno, Mili.
\4\ Lib, Aur, Ailinglaplap, Majuro, Ujae, Kili, Jaluit, Namorik, Ebon.
\5\ Based on linear-model estimates applied to doses far higher than those in other studied populations, and
therefore the estimate of excess cases is likely to be a rough upper bound (see text). This caveat is less
applicable to estimates for Utrik, and does not apply to the other atolls (see Table 1 for average doses by
atoll).
\6\ Estimated number of cancers exceeds number of exposed.
Senator Akaka. Thank you very much, Dr. Mabuchi.
Before we ask you questions, I would like to have Senator
Murkowski make any remarks that she may have.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Senator Akaka. I appreciate
the opportunity and I do not want to take a lot of time because
we do have other members to the panel.
This is my first hearing as a member of the Senate Energy
Committee on these issues that stem from U.S. nuclear testing
in the Marshall Islands, but it is something that as an
Alaskan, we have been following as we have worked through
certain of our issues as they related to testing in Alaska,
specifically on Amchitka Island.
And as we have gone through our efforts to provide
compensation for those who were exposed to radiation at the
time, we have found that, quite honestly, the benefits that
were provided were insufficient. And so we have passed
legislation recently to provide for additional assistance to
Americans who had suffered these illness caused by radiation as
a result of these weapons tests.
So my presence here today is to indicate to you certainly a
level of interest in terms of what is going on, whether or not
we here in Congress are providing compensation that is
adequate. I am truly here in a listening mode today to
determine what it is that we need to do, whether our level of
compensation is insufficient at this point in time, what else
remains.
And so I appreciate the testimony from both of you
gentlemen.
And, again, to you, Mr. Chairman, as you are conducting
this hearing, as we move forward, I think it is important that
we make sure that we do right by those residents who were
exposed to the levels of radiation that were conducted at the
test times.
So I am sure we are going to be spending a lot more time on
this and appreciate your leadership and interest on it as well.
Those of us in the Pacific should take the time to follow with
close attention what is happening.
Senator Akaka. Thank you very much, Senator Murkowski.
I have some questions for you, Dr. Krawitz. The 1986
settlement agreement provided $2 million per year for the so-
called 177 Health Care Program. This program served the four
northern-most atolls communities where the U.S. believed health
effects resulted from the tests were limited.
However, funding for that program expired in 2003. And we
have now heard that the National Cancer Institute estimates
that more than half of the additional cancers have yet to
develop and many of those will occur in the communities outside
of the four atolls.
If the committee decides to provide additional health care
assistance using the ex gratia authorization under section
105(c) of the Compact, the question is, is the administration
prepared to work with Congress and the Marshall Islands in
developing a consensus approach?
Mr. Krawitz. Thank you, Mr. Chairman.
Let me begin by saying I think it is premature for me to
try to speak about the National Cancer Institute correspondence
with this committee because it has not yet as I understand been
publicly vetted through peer review or publication.
Therefore, it would be inappropriate for me to even begin
to discuss this yet since it falls outside of the
administration's report and my own area of knowledge.
To answer your second question, obviously the State
Department would not make and cannot make any decision in and
of itself. This is an administration issue. The administration
issued the report, not the State Department. And we would need
to consult with all our sister agencies who were involved in
programs in the Marshall Islands.
As I mentioned in my testimony, you have the Interior
Department, the Energy Department, the Health and Human
Services Department. So this would have to be something that
would have to be discussed in the administration and come to a
consensus opinion in the interagency process.
However, I would like to say, as I mentioned in my
testimony, the State Department which is not involved in
programs--we do not do science, we do not have money, we do not
run programs--we are the bridge, I would hope, that would help
people to engage in dialog.
And we are always ready to listen to the concerns about
health care delivery and other issues through the legitimate
process of the Joint Economic Management and Financial
Accountability Committee which we now have with the Marshall
Islands which I participate in and my colleague, Deputy
Assistant Secretary Cohen, and others participate in, and I
believe that this is a very proper venue in which to talk about
health care concerns, public health care concerns.
I mean, across the board, we have a number of areas where
there is targeted assistance. So I would say we are always
ready to listen. We are ready to engage, but I can make no
comments concerning the science or the administration position
at this time. Thank you.
Senator Akaka. Let me further followup with a question by
asking, if Congress comes to a point where it provides
additional funds for whatever the program is, will the
administration or State Department work with us on that?
Mr. Krawitz. Again, sir, I regret I cannot speak for the
administration as a whole until the administration has had a
chance to discuss it.
I can only say that the State Department as part of its
foreign policy role exists to talk to our friends and neighbors
throughout the world and we will continue to do that. But I
cannot make any comment concerning the administration position
at this time.
Senator Akaka. Thank you. I would like to ask a question to
Secretary Cary and Dr. Mabuchi. The reports by NCI, DOE, and
the Nationwide Radiological Survey each generally found that
there was a decrease in the amount of radioactive contamination
as you move south from the test sites.
Two questions. First, is that a fair summary of your
findings? And I am going to ask Dr. Mabuchi to answer that
first. But here is the second. Was there a scientific basis for
the tribunal to reach this same conclusion in 1987 with the
analytical tools available to develop a way to discriminate
among the nearly 14,000 people living in the Marshall Islands
in 1958? And these figures were gathered from some of the data
that was provided, Dr. Mabuchi.
So, Dr. Mabuchi, will you answer first and I will ask Dr.
Cary following you.
Dr. Mabuchi. As I understand, your first question is, Is it
generally correct to assume that radiation doses decrease with
increased distance from the weapons test site? Yes, I think it
is generally correct that the farther you go away from the
nuclear test site the doses decrease.
The second question is whether an estimate could have been
made in 1986 similar to that made in this correspondence. If
someone had attempted the similar exercise or calculations
using dose and risk data that are available from some of the
populations, that sane estimate could have been made, with the
exception that our estimates are based on more recent models
and mathematical tools that have been developed in only the
last 2 years.
Since 1986, the understanding of how the cancer risk
associated with radiation changes with age, time, gender, and
how the risk data from other population can be applied to other
populations, has greatly improved, and we now have a better
understanding of the relationship of radiation with risk than
10, 20 years ago.
We also are using exposure data that are more recent. So
the results would have been different. But if one had attempted
similar calculations, one could have obtained an estimate that
might/might not be similar to what we estimated.
Senator Akaka. Thank you, Dr. Mabuchi.
Dr. Steve Cary is a Deputy Assistant for Health with the
U.S. Department of Energy. You may proceed, Dr. Cary.
Dr. Cary. Yes, sir. There is a correlation between the
amount of radioactive contamination and distance from the test
site. That is a fair summary of the DOE work that has been done
in their area of radiologic and photographic surveys. So I can
answer affirmative there.
I would like to elaborate a little more within the context
of that gradient, the Office of Health and the Department of
Energy has specific authority for the high-risk areas within
that gradient. We have the medical patients from Rongelap and
Utrik with the highest levels of exposure. Congress gave that
program to us. We have been running that program for many
decades now.
In addition, we do environmental monitoring on the four
atolls at the highest risk within the context of that gradient
that you mentioned in your question. Those are Bikini,
Enewetak, Rongelap, and Utrik.
So within the context of that gradient, DOE's work has been
defined and that is what we have been undertaking, sir.
Senator Akaka. Thank you.
Senator Murkowski, do you have any further questions?
Senator Murkowski. Yes, thank you.
Dr. Mabuchi, in listening to your testimony this afternoon,
you have indicated that it is difficult to predict. There is a
great deal of uncertainty in terms of how we predict additional
numbers of individuals that may contract the cancer.
You have indicated, though, in your testimony that exposure
to fallout could result in about a 9-percent increase over what
was estimated above and beyond the baseline; is that correct?
Dr. Mabuchi. That is correct.
Senator Murkowski. Nine percent sounds like you have really
taken the analysis and this is about as exact as you can get
even though you have couched that and say that this is
uncertain.
Recognizing that we find over a long period of time that we
might find other types of cancers that present themselves, you
have indicated that predominantly the individuals have been
exposed to or have contracted a thyroid cancer.
Is it possible that we would see these numbers increase
with perhaps different cancers that might present themselves?
How much of a factor was perhaps women that were pregnant at
the time whose unborn were exposed? How many variables are out
there that could change this number and, if so, do you believe
it would change it with any significance?
Dr. Mabuchi. Are there any other cancers that might be
increased in the future? We cannot answer that question. The
projection is based on the most recent evidence from many
epidemiological studies.
Regarding your question about pregnant women, the pregnancy
per se does not affect radiation risk, but if you are referring
to the fetus exposed in utero, we have not estimated excess
cancers or any deleterious effects to fetuses in this
correspondence.
Senator Murkowski. You have indicated, Doctor, that you do
not feel that if you were to go forward with, I guess,
additional modeling, the incremental information gained is
going to be of little practical significance in terms of the
public health management.
And are you able to make the statement simply because of
the amount of time that has lapsed and what you have seen so it
is your conclusion that we are at that point where we are going
to know pretty well the numbers that we are dealing with at
this point?
Dr. Mabuchi. The primary reason for that statement is that
the greatest uncertainty on dose estimates come from the
exposure in southern atolls where the exposures are very low.
So even if we come up with a better estimate, the expected
number of excess cancer cases will be little changed. So the 9
percent we estimated would be changed very little.
Senator Murkowski. Mr. Krawitz, the administration has
argued that the U.S. compensation under the Compact has been
sufficient. Obviously that is one of the purposes of this
afternoon's hearing is to determine if, in fact, it is
sufficient, you know, as we learn of additional numbers that
are exposed, individuals that are exposed to the cancer.
Can you address the five areas where the Marshall Islands
are seeking additional compensation and explain the State
Department's position about whether or not they should receive
any more for health care, for the personal injury awards, for
the property damage, both because of the high cost of cleanup
expenses, the program expenses, as well as the environmental
and monitoring.
Mr. Krawitz. Senator, thank you. Bear with me, I did not
bring my glasses.
We have submitted--this is the full text of my testimony
today. I gave an abbreviated text because I realized time was
short. This has been submitted for the record and copies should
be available to you.
Let me start from the second part of your question, I
think, first. I cannot answer your question concerning
whether--about what the administration's position would be and
whether this is sufficient, insufficient, or anything else.
That was not something we were asked to look at.
As I said in my testimony, we were only asked to evaluate
whether or not this specific request sent in at this specific
time based on the evidence that was available at the time of
the writing of our administration report justified the request
made under article 9. And our conclusion is that it does not. I
cannot address anything outside of that specific task.
And, again, I need to say for the record this is not the
State Department's report. It is the administration's report to
Congress in response to a request that the Congress made to the
administration in, I believe, 2001. I might be incorrect in
that.
As far as the areas, we stated in the submitted testimony.
Just very quickly, one of the questions is whether there was
anything that has come to light since the 1986 agreement that
could not have been well and reasonably known at that time or
that should have been known at that time or that was otherwise
overlooked or ignored at that time.
And the vast majority of the body of scientific evidence
was examined by the roughly ten-member interagency group that
are mentioned. And the consensus was that, no, it does not meet
the test. There is nothing that has come to light since that
would warrant a revisiting under the changed circumstances
provision.
Senator Murkowski. What about if Dr. Mabuchi's predictions
are accurate and we see a 9-percent increase in the numbers of
individuals that will contract cancer based on his analysis?
Does that qualify?
Mr. Krawitz. I regret, Senator, I cannot speak to that
because, again, it is not appropriate for me--first of all, I
am not a scientist, so I would not speak to the science anyhow.
But it is not appropriate for me to comment on correspondence
that has not yet been through the normal scientific process of
peer review and publication which I believe is the way that the
scientific community comes to a consensus about whether the
science is acceptable to them or not. I can make no statement
one way or other about that.
Senator Murkowski. Okay. Well, we do not need to go into
the theoretical or the scientific modeling. But if we clearly
establish that we have additional numbers that have been
exposed and have contracted the cancer, does that not change
the equation?
Mr. Krawitz. Again, I cannot answer that because you are
asking the State Department. As I said earlier in my testimony,
we do not do the science. This would have to be set up again
for review by the interagency----
Senator Murkowski. Well, it is not science if somebody
contracts cancer. I mean, they are either verifiable or not.
Mr. Krawitz. That may or may not be, Senator. That may be,
Senator, but the fact is that the departments that handle
health programs and radiological problems and energy programs
would be part of the administration body that would weight on
whatever evidence might come to light if some evidence were to
come to light, which I am not acknowledging.
So, again, I have to say it would have to be, as with
committees, it would have to be an interagency process in which
all of those who were involved would have a chance to weigh in,
vent the issues, and come to a consensus. And at that time, an
opinion would have to be issued under the name of the
administration. It would not be the State Department. I cannot
speak to that.
Senator Murkowski. Okay. Thank you, Senator Akaka.
Senator Akaka. Thank you very much, Senator Murkowski.
I would like to followup with Dr. Mabuchi on what Senator
Murkowski was asking about and ask you the question, how long
would peer review take?
Dr. Mabuchi. We have not started writing papers. We are
planning to write three papers, one on internal exposure, one
on external exposure, and the third on radiation risk.
Paper writing is time consuming. I cannot say how long it
would take. I have to talk with my colleague and see how long
it might take.
Senator Akaka. Thank you.
I also want to followup with Dr. Cary on a question. Dr.
Cary, was there a scientific basis for the tribunal to reach
the conclusion in 1987 there is decreasing contamination as you
move south from the test site?
Dr. Cary. Sir, as Dr. Mabuchi mentioned, there are many
variables involved in the illness that would develop from
various doses. The Department of Energy has not done an
analysis of the claims tribunal process because we have been
specifically excluded from that process. It is actually one of
the provisions in the Compact of Free Association.
So I am not prepared to respond to that at this time. It
has been an independent process. It was set up that way. And we
have no comment on that, sir.
Senator Akaka. Let me thank this panel for your responses
and call on the next panel. But before I do that, I would like
to ask for any remarks from our Congressman from Samoa. And let
me just thank this panel for your responses.
STATEMENT OF HON. ENI FALEOMAVAEGA, DELEGATE FROM AMERICAN
SAMOA
Mr. Faleomavaega. Thank you, Mr. Chairman, for allowing me
to make a presentation of this important hearing. I certainly
would like to commend you and your colleagues and this
distinguished committee for holding this oversight hearing. And
I really appreciate the opportunity.
Mr. Chairman, as the ranking member of the International
Relations Subcommittee on Asia and Pacific and as a Pacific
Islander, I feel that I have a special responsibility to
safeguard the interests of our Pacific Islanders from the
Marshall Islands who have sacrificed greatly for our common
good.
From 1946 to 1958, the United States detonated 67 nuclear
weapons in the Marshall Islands representing nearly 80 percent
of all atmospheric tests ever conducted by the United States.
If one were to calculate the net yield of these tests, it would
be the equivalent to the detonation of 1.7 Hiroshima bombs
exploded every day for 12 years.
These tests exposed the people of the Marshall Islands to
severe health problems and genetic anomalies for generations to
come.
The U.S. Nuclear Testing Program in the Marshall Islands
continues to devastate the Marshall Islands and the funds
provided by the United States under the Compact of Free
Association are grossly inadequate to provide for the health
care, environmental monitoring, personal injury claims, or land
and property damage.
Pursuant to the Compact and the accompanying Section 177
Agreement, the United States accepted responsibility for the
damage to the property and environment of the Marshall Islands
and the health of its people.
This agreement did not constitute a final agreement as
evidenced by the inclusion of article 9 authorizing the
government of the Marshall Islands to petition the U.S.
Congress in the event of a, quote, ``changed circumstances that
render the provisions to this agreement manifestly
inadequate.''
Mr. Chairman, the government of the Republic of the
Marshall Islands has submitted a request to Congress based on a
changed circumstances claim. The administration, however, as
represented by the State Department in its recent report
evaluated the Marshall Islands request, rejected the arguments
made in the Marshall Islands petition contending that the
claims did not constitute changed circumstances as defined in
the agreement.
For the record, Mr. Chairman, I want to make it clear that
I take issue with the State Department's position on this
matter. While the State Department denies that there is a legal
basis for Congress to hear this petition, the fact remains that
we in Congress should decide this for ourselves.
As you are aware, Mr. Chairman, the State Department issued
a report in November of last year evaluating the Marshall
Islands petition, concluding that the Marshall Islands request
does not qualify as changed circumstances within the meaning of
the agreement, so there is no legal basis for considering
additional payments.
Mr. Chairman, the State Department fails to explain how the
declassified documents released a decade after the agreement
was reached indicating a wider extent of radioactive fallout
than previously disclosed or a National Cancer Institute study
indicating that more cancers will surface do not constitute a
legal basis for Congress to consider their circumstances.
Mr. Chairman, I submit this is much larger than a legal
issue. This is a moral issue. The fact is the people of the
Marshall Islands are still suffering severe adverse health
effects directly related to our nuclear testing program. And
they are still unable to use their own lands because of the
radiation poisoning.
We have a moral obligation to provide for health care,
environmental monitoring, personal injury claims, and land and
property damaged in the Marshall Islands. This is the best we
can do considering the historic contribution the people of the
Marshall Islands have made in the cold war struggle to preserve
international peace and promote nuclear disarmament.
Mr. Chairman, the people of the Marshall Islands have
brought their ongoing health, environmental, and loss of land
issues to Congress for our consideration. While we may find
that we cannot provide the amount of money requested, I do
believe we do have an obligation to examine fully the
application they have submitted to ensure that we live up to
our responsibility that we embraced over 50 years ago when we
began nuclear testing in the Pacific.
We should not be looking for ways to sidestep this
responsibility, Mr. Chairman. We should ask ourselves if we
have done everything we can possibly do to make things right
for the people of the Marshall Islands who have sacrificed
their lives, their health, and their lands for the benefit of
our nation.
Mr. Chairman, I am probably one of the few members who has
actually visited the nuclear test sites not only in the
Marshall Islands, but I also was privileged to visit the
nuclear test site of Motodoa where the French government
conducted for 30 years, they detonated some 220 nuclear bombs
in the atmosphere, on the surface, underground, under island.
And now we have some 10,000 Tahesians who have been seriously
exposed to nuclear radiation.
The French government now is trying to do everything they
can not only of the dangers of leakages of the explosions that
they have detonated in these two islands of Motodoa and
Fangatoufa. To this day, the people cannot even go back to the
island of Motodoa where they conducted these tests.
Last August, I was also invited by the President of
Kasakhstan to visit his country. And only to my surprise, Mr.
Chairman, I found out that this is where the former Soviet
Union conducted their nuclear testing program. Now, Mr.
Chairman, some 1.5 million Kazaks were exposed to Soviet Union
nuclear testing where they exploded some 500 nuclear devices.
In our own testing program, we exploded what is known as
the BRAVO shot that was done in 1954. It is described as a 15
megaton nuclear device equivalent to 1,000 times the bombs that
we dropped in Hiroshima. Now, the Russians also exploded their
hydrogen bomb and it was 50 megatons.
To all this, Mr. Chairman, I do not like gross pictures,
but I think sometimes--this is not 50 years ago, Mr. Chairman.
This is right now. The babies are still being born in the
Marshall Islands deformed as they are. And the environment, the
trees are still growing in the same way simply because of the
presence of nuclear radiation.
And I would like to submit these for the members of the
committee this afternoon. As the saying goes, Mr. Chairman, a
picture is worth a thousand words. And when I look at this, it
just makes me sick. I sincerely hope that our government will
bear our responsibility.
This picture that was taken, Mr. Chairman, as you see here,
is a mother that is still living. She bore these unfortunate
children. As you notice how deformed they are.
The other photos that I want to share with members of the
committee are the results of the Soviet Union Russian nuclear
tests and some of the babies that were born among the Kasak
people. Not a very pretty sight.
But I wanted to make this to emphasize my point, Mr.
Chairman. We owe a very special responsibility to the people of
the Marshall Islands.
When some of these documents were declassified, at the time
of our nuclear testing program, we said that there were only
about three or four islands that were exposed to nuclear
radiation. Well, after declassifying these documents, Mr.
Chairman, we found that the whole Marshall Islands was exposed
to nuclear testing.
And one of the things that I have always wondered if some
people have asked, well, why did we stop our nuclear testing
program in the Marshalls. Well, we found out that this nuclear
cloud that came all the way from the Pacific ended up in
Minnesota and Wisconsin. They found out that milk products
coming out of Minnesota and Wisconsin had strontium 90 as a
result of our nuclear testing programs in the Pacific. That is
why we ended up in Nevada conducting underground nuclear tests.
So, Mr. Chairman, again, I want to express my deepest
appreciation for you and your distinguished colleagues in
holding this oversight hearing. It is my sincere hope that we
will not only examine the merits of what the Marshall Islands
government has requested for us to do, but the fact that we do
what is fair and reasonable to the needs of the people,
especially the conditions of health, the environment, the
lands, I think is the least that we could do.
If we are able to expend a billion dollars a week in waging
the War in Iraq and Afghanistan, Mr. Chairman, I am sure that
somewhere somehow we have got to find some sense of creativity
to see how we can at least give--this problem has been going on
for 50 years and we still have not adequately addressed the
issues affecting the health, the conditions of these people.
We owe it to them, Mr. Chairman. Again, Mr. Chairman, thank
you.
Senator Akaka. Thank you very much, Congressman
Faleomavaega, for your comments. And I know that you have been
very passionate about what has been happening in the Pacific in
regards to the nuclear testing.
And since you mentioned your visit to Bikini, I want to
mention that, and especially to Senator Murkowski, that I did
travel with her father to these islands in the Marshalls and I
would encourage her to try to travel out there to the Marshall
Islands one of these days.
Senator Murkowski. Well, I look forward to taking that trip
with you as well.
I want to thank you, Representative, for reminding us of
the moral responsibility that we have to the Marshall Islanders
out there. It is one thing to talk about just the raw numbers
and this person has this type of cancer and we move on.
But as we know, oftentimes it is not just at the time of
the exposure that you happen to be right there on this
particular island and you see those consequences. We learn that
the exposure, the devastation that happens can take a period of
years.
You have referred to in your testimony genetic
abnormalities for years to come. We would like to think that
that is not the case. But if that is the case, we as a country
need to take the responsibility what we did in exposing the
islanders to the risk of radiation without really appreciating
the risk that they were being exposed to.
That is what we are finding in Amchitka now. The workers
that went out there at the direction of this government had no
understanding about the risk that they were taking. So we have
got a concurrent obligation after the fact to make sure that we
do the monitoring that is necessary and to make sure that we do
provide for those who have been injured and exposed.
So I appreciate your efforts on this and yours as well, Mr.
Chairman.
Mr. Faleomavaega. If I may, Senator, I just want to say it
was my privilege to accompany the good Senator from Hawaii and
your father, Senator Murkowski, to the islands.
And this has always been a very difficult situation for
members to travel to the islands because when you mention
islands, it is sun, fun, and tan, and think that it is a
junket. And the media always plays on this every time members
go out.
And it is really unfortunate because when you are there to
see it for yourself, and perhaps this is the reason why I am so
moved and committed to this, because I have seen the
devastations of what these nuclear devices can do.
And the nuclear madness that goes on right now, Senator,
our ability not just to kill other people but now to vaporize
other people by the use of these weapons of mass destruction,
if you will.
As the good chairman had said earlier, it would really be
wonderful if as many members and yourself as well would visit
the islands and see for yourself and how great these people
have been, been so patient for all these years. And we are
still dragging our feet and not doing what we should be doing.
And, again, I really want to thank the distinguished
chairman and you, Senator, and the members of the committee and
look forward in working with you in the future and hopefully to
develop some kind of legislation that will be helpful to the
people of the Marshall Islands.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Congressman
Faleomavaega.
Now, I would like to excuse the panel. Mr. Krawitz, Dr.
Mabuchi, and Dr. Cary, thank you very much. You are excused. If
there be any further questions, we will put it in the record
for your responses. Thank you.
And now I would like to call the second panel forward. Mr.
Gerald Zackios is the minister of foreign affairs, Republic of
the Marshall Islands; Mr. James Plasman, chairman of Nuclear
Claims Tribunal; Dr. Steven Simon of Washington, D.C.; Mr.
Thomas Lum, specialist in Asian Affairs, Congressional Research
Service; Dr. Neal A. Palafox, professor, John A. Burns School
of Medicine, University of Hawaii; and a senator from Utrik,
Hiroshi Yamamura. Will you please take your seats at the desk.
Thank you very much. I would like to remind our witnesses
that we would like for you to testify for 5 minutes or less and
that we would place your full text in the record of the
committee.
And I would like to first ask Foreign Minister of Affairs
of the Republic of Marshall Islands to begin, Gerald Zackios.
STATEMENT OF GERALD M. ZACKIOS, MINISTER OF FOREIGN AFFAIRS,
REPUBLIC OF THE MARSHALL ISLANDS
Mr. Zackios. Mr. Chairman, distinguished members, ladies
and gentlemen, I would like to request that statements and
remarks by atoll representatives be included in the hearing
record as well as copies of documents cited in my written
testimony.
Senator Akaka. Without objection.
Mr. Zackios. I would also like to ask that the hearing
record remain open for a period of time for additional
submissions.
I appear before you today as a representative of a nation
with an abiding friendship with the United States, a nation in
a very precarious position.
Despite our best efforts to jointly address the damages and
injuries resulting from the U.S. Government's testing of 67
atmospheric weapons in our country, the Marshall Islands is
unable to manage its radiological burdens.
People are gravely sick and people are dying from
radiogenic diseases because the RMI Health Care System and U.S.
programs are not adequate to meet our health care needs.
We are committed to working together with the
administration and Congress to address these ongoing issues.
In May of this year, the House conducted a hearing on the
nuclear legacy which established that; one, more than just the
four atolls were exposed to significant amounts of radiation;
two, hundreds more cancers linked to the nuclear weapons
testing program are anticipated in the future; and, three,
there are ongoing needs and liabilities resulting from the
nuclear testing program that needs to be addressed.
It is now 25 years since the United States established
policies regarding the testing program. The RMI believes it is
time for the U.S. Government to update its policies to
incorporate new understanding about the effects of radiation
exposure on human health and the environment.
My government has specific requests to Congress that are
outlined in my written statement.
One, assistance to the Nuclear Claims Tribunal can pay
existing personal injury awards; two, assistance to replenish
the nuclear claims trust fund so the tribunal can continue to
pay personal injury awards in the future; three, assistance so
the tribunal can pay for private property awards or Congress
referral of these awards to the U.S. Federal Courts for review;
four, assistance to build adequate infrastructure for the
delivery of health care needs stemming from the testing
program; five, assistance in future years to provide health
care services including comprehensive cancer care; and, six,
assignment of responsibility for monitoring the Runit Dome to a
U.S. agency.
While our changed circumstances petition includes specific
requests for the radiological burdens we face, the RMI is
certainly willing to explore all avenues of remedy.
In the 177 Agreement, our nations agreed that an
independent tribunal would consider claims for personal injury
and property damages. The tribunal fulfilled its mandate by
determining personal injury claims based on similar U.S.
programs and by adjudicating property claims.
Former U.S. Attorney General Richard Thornburgh determined
that the tribunal operates in a manner consistent with U.S. law
and that the tribunal is unable to pay its awards because its
funding is manifestly inadequate.
Our nations intended in the 177 Agreement for the
populations exposed to significant amounts of radiation to
receive medical monitoring and care for their illnesses related
to the testing program.
The NCI report that this committee requested tells us that
hundreds more cancers linked to the testing program will
develop in the future. This is devastating new information as
every family in the RMI knows the anguish of losing loved ones.
We thought most of our cancer burdens were behind us.
The RMI lacks the capacity to detect and treat these
cancers. We have a national crisis on our hands. There is an
urgent need to put monitoring capabilities in place even while
we explore other areas for remedy in the upcoming months.
Monitoring is imperative so cancers can be detected early
before they become untreatable.
Since the hearing in May, another important report
regarding radiation exposure has emerged, information that
constitute yet another changed circumstance. The BEIR VII
report by the U.S. National Academy of Sciences focuses on low-
level radiation exposure that can cause DNA damage and lead to
cancer and other illnesses.
Like the NCI report, the BEIR VII report increases our
concerns about several populations, including those exposed to
radiation during weapons testing, resettlement, contract work
for DOE, or when born and raised on an island with residual
contamination.
New information compels us to address the full range of
radiogenic burdens to all affected populations not just those
recognized in the 177 Agreement.
Again, despite our best efforts--we are thankful for the
assistance that has been provided to date--populations exposed
to radiation lack adequate health care and the standard of
health care they receive is far below the standard provided to
U.S. citizens for similar situations.
We are not looking for anything excessive. We just want the
means to manage our health care needs linked to the testing
program. The amended Compact does not take into account our
radiological health care burdens. In fact, these issues were
specifically excluded from our Compact negotiations with the
United States at the insistence of the State Department.
The case for equity is not some abstract legal argument. It
is based on the real needs of the Marshallese people today, the
same needs as those of U.S. citizens exposed to radiation.
Medical monitoring, diagnosis, and treatment needs resulting
from radiological burdens do not differ based on whether a
person is a Marshallese or a U.S. citizen nor should radiation
protection and cleanup standards differ.
Mr. Chairman, the RMI government hopes to work with this
and other committees to develop appropriate language in the
upcoming year. We hope that funding for future medical care
will be mandatory rather than discretionary because past
fluctuations in moneys resulted in disruptions of health care
delivery to patients with critical needs.
I want to thank this committee for its continued
willingness to address radiological issues in the Marshall
Islands. We hope that today's hearing is the beginning of a
process to jointly address the RMI's inability to respond to
its radiation-related needs.
There is a continued responsibility to address the burdens
of Marshallese citizens resulting from the U.S. nuclear weapons
testing program. The well-being of the Marshall Islands depend
on our action.
On a personal note, Mr. Chairman, I was born after the end
of the nuclear testing in the Marshall Islands. Nonetheless, I
learned at a young age. While I was growing up, I witnessed the
suffering, uncertainty, and sickness that the people suffered
from the nuclear testing and their desire to find resolution.
Today I believe it is my solemn duty to do all within my
power to address these issues and bring resolution to these
problems that continue to affect the lives of the Marshallese
people today.
Thank you very much.
[The prepared statement of Mr. Zackios follows:]
Prepared Statement of Gerald M. Zackios, Minister of Foreign Affairs,
Republic of the Marshall Islands
Mr. Chairman, distinguished members, ladies and gentlemen, with me
here today are two Cabinet Members from President Kessai H. Note's
administration, Alvin T. Jacklick, the Minister of Health, and Donald
F. Capelle, the Minister of Justice. I also want to recognize our
traditional leaders, Senators, Mayors, and citizens from the Marshall
Islands in attendance today--the distance, time, and expense that it
took for these people to join us underscores how important nuclear
issues are to communities throughout the RMI.
The Government of the Republic of the Marshall Islands thanks the
Committee for convening a hearing to examine the legacy of the U.S.
nuclear weapons testing program in the RMI, and to consider the RMI's
Changed Circumstances Petition (CCP) to Congress. As you are aware, in
the 177 Agreement of the Compact of Free Association, Congress gave the
RMI the right to petition Congress for additional assistance related to
the nuclear weapons testing program if it can demonstrate that:
1. it has new and additional information about the damages
and injuries from the testing program;
2. this information could not have been reasonably known when
the RMI and the U.S. negotiated the Compact, and;
3. this information renders the $150 million settlement for
all past, present and future damages and injuries manifestly
inadequate.
The RMI government believes it has met these criteria for changed
circumstances and looks to you, the Congress, to respond to our
requests for additional assistance to address the enduring radiological
problems resulting from the U.S. testing of 67 atmospheric weapons in
our nation between 1946-1958.
The 4 atolls and other populations require continued and new U.S.
assistance My testimony does not provide a history of the U.S. nuclear
weapons testing program because I believe that is a matter of
Congressional record from previous hearings, but I do want to emphasize
that what we now know--and did not know when the 177 Agreement was
negotiated--is that more people and islands in the RMI were exposed to
significant radiation than was understood when the Compact was
negotiated, and that smaller doses of radiation cause more harm than
previously believed. The U.S. government position regarding radiation-
related damages and injuries is based on the premise that only 4 atolls
were adversely affected by the testing program, and that only the 2
populations of Rongelap and Utrik were exposed to levels of radiation
sufficient to warrant medical monitoring and care. When we look at the
cumulative levels of radiation exposure from as many of the 67 tests
that we have radiological exposure data for, we see significant
exposure to people and islands beyond the confines of the 4 atolls.
These radiation levels are higher in the north where populations
suffered the brunt of damages and injuries, but radiation levels are
significant for other atolls throughout the nation.
As stated in my testimony last month to the House Resources
Committee and the Subcommittee on Asia and Pacific of the House
International Relations Committee, we are confident that we have met
the requirements for changed circumstances and we are anxious to hear
Congress' reactions to our petition. I would like to ask that my
testimony to the House be included as part of this hearing record so we
can build on that discussion. We believe the House hearing established
that radiation exposures allowable under U.S. standards have been
significantly reduced since the Compact came into effect, and that the
RMI should expect hundreds of cancers to appear in the future for
Marshallese alive during the testing program. We want to thank this
Committee for requesting the National Cancer Institute's report on
future cancer rates in the RMI related to the U.S. nuclear weapons
testing program, as the RMI lacks the resources to undertake this type
of analysis.
an unequaled strategic partnership
As you know, all of what we are discussing today takes place in the
context of the RMI's longstanding commitment to its strategic
partnership and historical friendship with the United States. The RMI
is extremely proud of the role it played in contributing to the end of
the Cold War, despite its radiological burdens. We are thankful that
America's nuclear deterrence has curtailed the global use of nuclear
weapons.
Today, the RMI is pleased to be a partner with the U.S. in the
development and testing of its missile defense systems on Kwajalein
Atoll, which will hopefully reduce the likelihood of any future missile
attacks. In addition, we know that our consent to the U.S. Navy's use
of our airspace and sea lanes helps promote security in the Asia-
Pacific region.
The RMI is extremely proud, too, of its sons and daughters who
currently serve in every branch of the U.S. armed forces and are
deployed in both Iraq and Afghanistan. Our commitment to you as a
strategic ally goes beyond words; we have contributed our most precious
and sacred resources: our sovereign lands, our territorial waters, and
most importantly our young men and women.
House Concurrent Resolution 410, adopted by the Senate on July 12,
2004, makes specific reference to our unique, enduring, and strong
bilateral relationship, and notes:
Whereas the United States has no closer alliance with any
nation or group of nations than it does with the Republic of
the Marshall Islands under the Compact of Free Association,
which continues the strategic partnership and role of the
Marshall Islands in United States strategic programs based in
the Marshall Islands, which began at the end of World War II
and has continued under the trusteeship and Compact to promote
the mutual security of the United States and the Marshall
Islands . . .
Whereas the Republic of the Marshall Islands has remained one
of the staunchest allies of the United States during the cold
war and the war on terrorism, and the voting record of the
Republic of the Marshall Islands as a member state in the
United Nations General Assembly is unparalleled by any other
country, further demonstrating the shared commitment of the two
nations to promote democracy and global peace[.]
Given the subject of H. Con. Res. 410, I would like to ask that it
be included in its entirety as part of this hearing record. We seek
your continued partnership to cope with the serious problems that
remain as a result of the U.S. nuclear weapons testing program in our
country.
specific requests to the u.s. congress
In the Petition to Congress, the RMI government laid out specific
requests for remedies to address the on-going radiological burdens that
are a direct result of the U.S. nuclear weapons testing program. We ask
for your assistance to address these damages and injuries because we
lack the human and financial resources to provide the remedies that are
required. Although the RMI government has proposed specific remedies,
we are certainly willing to explore any ideas that will bring relief
from our radiological burdens. Our specific requests to Congress are:
1. $15.7 million so the Nuclear Claims Tribunal can pay existing
personal injury awards. As of December 31, 2004, 45% of personal injury
awardees with radiological illnesses have died without receiving full
compensation for their injuries because the Tribunal does not have
sufficient funding to pay the full amount of its awards. $15.7 million
represents the shortfall in funds to pay current awards. In the case of
the program for U.S. Downwinders, the Attorney General requires that
100% of compensation be paid within 6 weeks of the time an award is
made. The RMI agreed to the 177 Agreement of the Compact of Free
Association because it provides compensation for the people of the
Marshall Islands who contract radiological illnesses. The Nuclear
Claims Tribunal created a compensation program based on U.S. programs
for Downwinders and Veterans exposed to radiation, but the Tribunal's
program is unique because the people of the Marshall Islands were
exposed to more radiation than any other population in the world. As
the U.S. National Cancer Institute recently noted in its report to
Congress, ``[m]ost of our understanding of the biological response to
radiation exposure pertains to doses that are much lower than those of
the more highly exposed Marshallese'' such as the Hiroshima and
Nagasaki A-bomb survivors.
2. Replenish the Nuclear Claims Trust Fund so the Nuclear Claims
Tribunal can continue to make personal injury awards in the future. The
preceding shortfall from request number 1 represents the current
balance on personal injury awards as of June 24, 2005, and does not
take into consideration the U.S. National Cancer Institute's prediction
of several hundred more radiation-related cancers in the future. The
RMI government believes that the Nuclear Claims Trust Fund needs to be
replenished to provide compensation for future radiation-related
injuries--such as the cancers the NCI has told us to expect--as the
intent of the 177 Agreement is for the Tribunal to create and maintain,
in perpetuity, a means to address past, present and future consequences
of the nuclear weapons testing program. The intent of the 177 Agreement
is for the Tribunal to have the future means to pay awards for personal
injury but the Tribunal does not have funding to make the future awards
agreed to in the 177 Agreement.
3. $1.1 billion so the Nuclear Claims Tribunal can pay for the
Enewetak and Bikini private property awards. Like the personal injury
awards, the 177 Agreement provides for claimants to receive
compensation for private property damages. Since the Tribunal funding
is manifestly inadequate and the Tribunal does not have the ability to
pay for awards it has made, the intent of the 177 Agreement has not
come to fruition. Recognizing that the dollar amounts needed for the
private property claims are quite high, the RMI would welcome
consideration by Congress to moving the land claims to the U.S. federal
courts to review the decisions and the right of claimants to receive
awards. It is important to note that the funding of private property
awards would enable affected Marshallese to rid their land of
radiological contamination, rehabilitate the soil, re-vegetate the
land, resettle their home islands, and provide the means to establish a
local economy in the fishing and tourism sectors. Thus, the funding
would provide the affected communities with the means to return to
self-reliance.
4. Establishment of similar consideration for future private
property claims. The RMI also requests that a similar mechanism to
request number 3 be adopted for pending private property claims. The
Tribunal is expected to rule on several private property claims in the
near future for atolls such as Rongelap, Utrik, Ailuk, Likiep, and
others. Private property claims will become meaningless if the Tribunal
is unable to pay out its rewards.
5. $50 million to build adequate infrastructure for the delivery of
radiation-related healthcare. The RMI currently lacks the
infrastructure to respond to radiation-related illnesses. We believe
that infrastructure is a critical component of building the RMI's
capacity to address its radiation-related healthcare needs. We envision
a scenario where we establish facilities and services that are
reasonable to provide in the RMI, including the ability to monitor
exposed populations, diagnose radiological illnesses, and provide
treatment for most conditions. When it is not cost effective or
practical to provide treatment in the RMI we would like to send our
patients to Hawaii to purchase the care we cannot reasonably provide.
6. $45 million each year for 50 years to provide healthcare
delivery. Once infrastructure is in place, the RMI needs funding to
hire doctors, purchase medication and some services in Hawaii, and to
deliver healthcare for patients exposed to radiation. Building the
healthcare capacity of the RMI will benefit Marshallese citizens
exposed to radiation and provide the capacity to deliver more timely
care for radiation-related illnesses, with the hope of identifying
medical problems when they are still treatable (before they reach the
tertiary stage) and extending the lives of the patients.
7. Assignment for the monitoring of the Runit Dome to a U.S.
agency. The portion of the Enewetak population that has resettled one
of its home islands needs assurances that its health is not adversely
affected by living adjacent to a nuclear waste storage facility.
Currently, no U.S. agency has responsibility to monitor the integrity
of the Runit Dome. The Defense Nuclear Agency used to have
responsibility for this work, but the agency was abolished and
responsibility for the Runit Dome was not transferred to another
agency.
focus on the nuclear claims tribunal and healthcare needs
Our requests obviously focus on the Nuclear Claims Tribunal and
radiation-related healthcare needs. It is appropriate for the RMI to
focus two of its major requests on the Tribunal. In lieu of an
assessment of damages by the Federal courts, the RMI government
accepted the U.S. proposal that it espouse and settle the claims of the
Marshallese people arising from the nuclear weapons testing program in
conjunction with the establishment of a claims tribunal. The U.S.
expressly recognized that its technical assessment of radiological
damage to persons and private property in the RMI was limited to a
``best effort'' at the time of the Compact, and was based on limited
disclosure of available information and incomplete scientific
knowledge. As a result, further adjudication of claims by an internal
RMI nuclear claims tribunal was agreed to by the U.S.
During the U.S. nuclear testing program from 1946 to 1958, the U.S.
was the only recognized government in the Marshall Islands. The U.S.
federal government exercised absolute power, including eminent domain,
by federal edict. The federal government took the private property of
our people without legal or political restraint. The right of our
people to protection under the 5th Amendment of the U.S. Constitution
was not recognized in the U.S. federal courts until after the nuclear
tests were done.
Some of our homelands were destroyed forever, vaporized in land,
air and water-based nuclear tests. Some are still too contaminated for
resettlement. The loss and damage to land, the dislocation of peoples,
the cost of clean-up and resettlement, were only partially compensated
through the Nuclear Claims Trust Fund. Full and just compensation was
promised by Congress in the Compact, but could not be quantified until
the land claims were adjudicated by the Nuclear Claims Tribunal.
Under the Compact, Congress removed our claims from the federal
courts, and the Nuclear Claims Tribunal was created as an alternative
forum for just compensation. The awards of the Tribunal are
substantially greater than the compensation that has been paid. The
U.S. refused to discuss this problem during the Compact renegotiations.
This is a legal matter, not just a political question. For that reason,
the RMI and the land claimants propose that the Tribunal awards be
reviewed by the federal courts in the same manner as judgments of RMI
courts against the U.S. under Compact Section 174(c).
The RMI government appears before you today to inform you that the
Nuclear Claims Tribunal in the RMI is not able to perform the role that
Congress intended because of inadequate funding. The independent
assessment of the Tribunal made by former U.S. Attorney General Richard
Thornburgh in 2003 confirmed that the Tribunal adhered to American
standards of jurisprudence, and concluded that the funding available to
compensate for private property damage and personal injury is
``manifestly inadequate.'' I would like to enter the executive summary
of the Thornburgh report as part of this hearing record. I would also
like to note that Congress has provided additional appropriations for
U.S. Downwinders and DOE employees when supplemental funding was needed
to make awards for claimants.
The RMI has also focused on healthcare delivery because this is an
area where an urgent need exists. People in the RMI with radiological
conditions are dying. We are certainly appreciative of the DOE medical
monitoring and care program for a small segment of our population, and
for the U.S. contributions to the 177 Health Care Program for the 4
atolls. I would also like to thank this Committee for referring these
issues to the Appropriations Committee, and to Mr. Domenici and Mr.
Burns for their leadership on that Committee, and hope that they will
support full funding this year in conference with the House. However,
despite our best intentions to date, these programs do not address the
full range of radiological healthcare burdens in the RMI.
One of the measures adopted under the Section 177 Agreement to
compensate the people and government of the Marshall Islands was a
healthcare program for 4 of the atoll populations impacted by the
testing program, including those who were downwind from one or more
test, and the awardees of the personal injury claims from the Tribunal
who manifest radiation-related illnesses in their tertiary phases. The
medical surveillance and healthcare program established under the
Section 177 Agreement has proven to be manifestly inadequate given the
healthcare needs of the affected communities.
The 177 Health Care Program--the only other radiation-related
healthcare program besides the DOE program for less than 120 acutely
exposed patients from Rongelap and Utrik--was asked to deliver
appropriate healthcare services within an RMI health infrastructure
that was not prepared or equipped to deliver the necessary level of
healthcare. The program's funding--$2 million per year for 17 years
(from January 1987 to January 2004), and $500,000 for February to
September 2004, was drawn down from the Nuclear Claims Fund provided by
the U.S. in fulfillment of its commitment under the 177 Agreement. This
program never included an inflation adjustment, and resulted in the
equivalent of less than $12 per patient per month compared to an
average U.S. expenditure of $230 per person per month for similar
services. The unstable and inadequate funding in recent years creates a
healthcare crisis for our nation, particularly at a time when the
people alive during the testing program are becoming older and are more
likely to develop or have significant radiation-related illnesses, such
as the cancers that the NCI study reports.
An example of a population that slipped through the cracks of U.S.
assistance include the 401 people residing on Ailuk Atoll during the
Bravo test on March 1, 1954--a population that U.S. government
documents concede should have been evacuated after the Bravo test
because of significant exposure to radiation. The U.S. government
decided not to evacuate the Ailukese because its population--almost 4
times as large as the evacuated population from Utrik--was considered
too large and cumbersome to relocate. Consequently, the people of Ailuk
have never been eligible for medical monitoring and care, and the
residents of that atoll continued to live in a highly contaminated
environment after the Bravo test, while the downwind populations of
Rongelap and Utrik were evacuated by the U.S. government. I would like
to request that the U.S. government document regarding Ailuk's
evacuation post-Bravo be included as part of the hearing record.*
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* Material attached to this statement has been retained in
committee files.
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Similar cases can be made for other atoll populations alive during
the testing program (such as exposure levels on Kwajalein included in
the RMI's CCP), for those born and raised in radiologically
contaminated environments, and for workers from atolls all over the
Marshall Islands and who worked as DOE contractors to support clean-up
efforts on Bikini and Enewetak. This latter group is not eligible for
U.S. compensation or healthcare programs for DOE workers exposed to
occupational sources of radiation as part of the Energy Employees
Occupational Illness Compensation Act (EEOICPA) because they are not
U.S. citizens. In this regard, we want to thank Mr. Bingaman for
including the Marshall Islands in the list of locations where DOE
workers exposed to radiation could receive medical care and
compensation. The interpretation of the Executive Branch is that non-
Americans such as former citizens of the U.S. trust territory are not
eligible for the program because they are not U.S. citizens. We request
that citizens of the former U.S. trust territory employed by DOE be
eligible for inclusion in this program since neither funding nor
healthcare are available to these workers through other means.
The RMI lacks the ability to provide the healthcare that is
warranted for the populations exposed to radiation. During the May,
2005 joint hearing of the House Resources Committee and the
Subcommittee on Asia and Pacific of the House International Relations
Committee, the National Cancer Institute representative told us that
the RMI should anticipate hundreds more radiation-related cancers in
the future--these are cancers that would not exist in the RMI if the
U.S. nuclear weapons testing program did not take place. As we told the
House committees, this news is devastating to the RMI as we lack the
infrastructure, and the human and financial resources to respond to
these cancers. Every family in the RMI has a first-hand understanding
of the pain and suffering cancer patients and their loved ones endure,
so it is difficult for us--even from an emotional standpoint--to
anticipate several hundred more cancers linked to the testing program.
We thought most of the healthcare burdens were behind us, but it is
clear that we now need to adjust our thinking and plan for the future.
The NCI also tells us that these cancers will not be limited to just
the 4 atolls, yet the 4 atolls are the only populations in the RMI that
receive any radiation-related healthcare. All of our citizens who
contract cancers will need healthcare--healthcare that we are currently
unable to provide.
provisions of the compact, as amended
During the House hearing in May, witnesses from the U. S.
Administration suggested that the RMI had the ability to deal with
healthcare or other issues arising from the nuclear testing program by
allocating a portion of its Compact sector health care grants for these
needs. First, as I noted during the House hearing, this suggestion is
contrary to the position taken by the Administration during the amended
Compact negotiations. During those negotiations, the Administration was
adamant that issues concerning residual problems relating to the
Section 177 Agreement would not be addressed during those talks despite
efforts by the RMI to raise these issues at that time. This is
evidenced by U.S. Compact Negotiator Al Short's letter to me dated
March 27, 2002, stating the Administration's position on the matter. I
would like to include that letter as part of the hearing record. As
noted in that letter, the RMI was told that these issues would be
considered and dealt with by the Congress under the Changed
Circumstances Petition that was pending at that time.
Thus, it is clear from the record that the amended Compact does not
take into account or include funding necessary to address the
healthcare or other continuing needs of the RMI to address the ongoing
consequences of the nuclear testing program. If the RMI were to
allocate funds necessary to address these issues from funds available
under the Compact, as amended, it would result in a substantial
reduction in other essential healthcare services to the people of the
Marshall Islands and would also adversely affect other priority Compact
sector grant assistance such as education.
The RMI was told that issues related to the consequences of the
nuclear testing program would be addressed by the U.S. Congress within
the framework of the changed circumstances petition as authorized by
Article IX of the Section 177 Agreement, which is why we are here
before you today.
changed circumstances continue to emerge
Between the House hearing in May and today's hearing still more
information about the health effects of radiation exposure has come to
light--information that represents changed circumstances because it was
unknown when the U.S. and the RMI negotiated the Compact of Free
Association and the 177 Agreement. This new information renders past
assistance manifestly inadequate, since that assistance does not
include healthcare designed to address these newly identified needs.
Specifically, there is a new study from the National Academy of
Sciences (NAS) about the effects of low doses of radiation, including
an important discussion about cancer risks for women and children. The
Biological Effects of Ionizing Radiation (BEIR) series of reports by
the NAS are regarded as the most authoritative basis for radiation risk
estimation and radiation protection regulations in the United States.
The latest report on radiation risk, called the BEIR VII report,
was sponsored by the U.S. departments of Defense, Energy, and Homeland
Security, the U.S. Nuclear Regulatory Commission, and the U.S.
Environmental Protection Agency, and concludes that low levels of
exposure to ionizing radiation may cause harm in human beings and are
likely to pose some risk of adverse health effects. The report
specifically focuses on low-dose, low-LET--``linear energy transfer''--
ionizing radiation that can cause DNA damage and eventually lead to
cancers, and calls for further research to determine whether low doses
of radiation may cause other health problems, such as heart disease and
stroke, which can occur with high doses of low-LET radiation. What is
most clear from the review of available data is that the smallest dose
of low-level ionizing radiation has the potential to cause an increase
in health risks to humans. As stated by the chairman for the report,
Richard R. Monson, associate dean for professional education and
professor of epidemiology, Harvard School of Public Health:
The scientific research base shows that there is no threshold
of exposure below which low levels of ionizing radiation can be
demonstrated to be harmless or beneficial . . . The health
risks--particularly the development of solid cancers in
organs--rise proportionally with exposure. At low doses of
radiation, the risk of inducing solid cancers is very small. As
the overall lifetime exposure increases, so does the risk.
This finding is extremely significant to the RMI as everyone alive
during the testing program was exposed to radiation from the 67
atmospheric tests, and thousands more people were exposed to
environmental sources of radiation when they were born and/or raised on
radiological contaminated islands.
Interestingly, survivors of atomic bombings in Hiroshima and
Nagasaki, Japan, were the primary sources of data to estimate the risks
of most solid cancers and leukemia from exposure to ionizing radiation,
yet the U.S. National Cancer Institute acknowledges that because
radiation exposure in the RMI exceeds other locations, exposure and
outcomes in the RMI cannot be compared to other locations such as
Japan. We are left to conclude, therefore, that any findings in the
Japanese population are likely exacerbated in the RMI. The BEIR VII
report is also important because it notes that adverse hereditary
health effects that could be attributed to radiation have not been
found in studies of children whose parents were exposed to radiation
from the atomic bombs in Japan, but studies of mice and other organisms
have produced extensive data showing that radiation-induced cell
mutations in sperm and eggs can be passed on to offspring. The report
states that there is no reason to believe that such mutations could not
also be passed on to human offspring, as the failure to observe such
effects in Hiroshima and Nagasaki probably reflects an insufficiently
large survivor population.
The BEIR VII report also updates the risk of dying from cancer for
women and men, and for children compared to adults. According to the
report, the risk of dying from cancer due to radiation exposure was
believed in 1990 to be 5% higher for women compared to men; this latest
report now updates the risk to 37.5% higher for women than for men.
Furthermore, the risks for all solid tumors, like lung, breast, and
prostate, added together are almost 50 percent greater for women than
men.
The BEIR VII report estimates that the differential risk for
children is even greater. For instance, the same radiation in the first
year of life for boys produces three to four times the cancer risk as
exposure between the ages of 20 and 50. Female infants have almost
double the risk as male infants. This information is obviously of
concern to us, and we seek the assistance of the U.S. government to
apply these findings to the Marshallese context.
looking for equity
The RMI is in a very precarious position. We have very significant
radiological burdens in the RMI that we lack the resources, knowledge,
or capacity to address. These radiological burdens--including the need
to clean-up private property and return populations to their home
islands, and the need to provide adequate healthcare and monitoring to
all communities exposed to significant levels of radiation--are
expensive. Despite the costs of remedies, we are simply asking the U.S.
government for the same assistance, services, and compensation that it
extends to its own citizens exposed to radiation or whose private
property is contaminated.
The RMI is extremely worried about the well-being of the people in
the Marshall Islands who were exposed to radiation from the 67
atmospheric atomic and thermonuclear weapons tests in the RMI, as well
as the populations resettled on contaminated islands, including
children who were born and raised in environments laced with radiation
from the U.S. nuclear weapons tests.
More than ever, it is clear to us that the U.S. government's
position regarding radiation exposure in the RMI is antiquated, and
needs to be updated. The U.S. position maintains that radiation exposed
only the populations of Rongelap and Utrik to levels of radiation
sufficient to warrant U.S.-provided healthcare for radiation related
illnesses. Estimated numbers by the NCI for future radiation-related
cancers are higher than the current number of patients currently
enrolled in the Department of Energy's medical monitoring and care
program and higher than the total populations for Rongelap and Utrik
alive during the testing program. The NCI's predictions for cancers
include likely occurrence for atolls throughout the RMI, not just the
northern-most atolls. The BEIR VII conclusions that low doses of
radiation increase risk of harm to human beings, and that there is a
substantially greater risk of dying from cancer for women and children,
compels us to take further action, and requires our nations to rethink
radiation-related healthcare in the RMI. Remedies are clearly needed,
but without U.S. assistance the RMI will continue to lack the capacity
to respond to the urgent radiation-related healthcare needs confronting
us.
Since the U.S. nuclear weapons testing program was conducted at a
time when the United States governed the Marshall Islands with the same
authorities extended to the United States itself, we believe the same
standard of care, safety, redress of grievances and justice that
Congress has adopted with respect to U.S. citizens exposed to radiation
should be honored for the Marshallese people. In particular, we think
there should be equity in terms of healthcare standards and delivery,
environmental clean-up, radiation protection standards for the public,
and compensation. The RMI government hopes to work with this Committee
and the House committees that convened a similar hearing in May to
develop appropriate authorizing and appropriations language in the
upcoming year. The well-being of our citizens depends on our action.
Finally, I want to thank this Committee for its continued
willingness to address radiological issues in the RMI since the
termination of the trust territory, and for the Committee's creativity
in addressing our needs. The RMI is grateful measures adopted in the
past to address healthcare, resettlement, trust funds, and clean-up. We
hope that today's hearing is the beginning of a process to address--
together--the fundamental inadequacies of our ability to manage on-
going and future radiological burdens in the RMI.
Senator Akaka. Senator Yamamura.
STATEMENT OF HIROSHI V. YAMAMURA, SENATOR, REPUBLIC OF THE
MARSHALL ISLANDS
Mr. Yamamura. Mr. Chairman and distinguished members of the
committee, on behalf of the four atolls, I want to thank you
for this opportunity to testify here today. I am here to share
with you the story of the four atolls and nuclear testing
program.
Utrik, Bikini, Enewetak, Rongelap are the four north island
atolls whose people are recognized by United States law as
victim of the nuclear tests. Our people in our homeland have
been exposed to higher levels of radiation than any other
people or any other place on earth.
Our physical, emotional, psychological, cultural suffering
and hardship has been documented by the United States and
international science. And it has been greater than anything
experienced by any other human population affected by the
radiation exposure from nuclear weapons.
However, we do not want to be seen forever merely as
victim. It is hard to talk about ourselves only as victims and
keep our dignity. We also have learned that people get very
uncomfortable hearing the truth about what really happened to
our people.
So now we want to be seen as survivor and we want to tell
our story as survivor. The difference between being a victim
and being a survivor is justice. The difference between victims
and survivor is recovery. And to recovery, we need more than
resources. We also want and need truth and fairness.
This is the American way. The United States has been more
just and humane and generous than any other nuclear power has
been with victims of their nuclear testing programs. But we
have not been given the full measure of justice we deserved. We
have not been treated with the same degree of respect as the
victim of the U.S. testing in the American mainland. This is
not the American way.
We are not U.S. citizens, but we are governed by the United
States during the nuclear testing program. Because of our
land's shared history, we cast our fate with the United States
and the world. We are your allies and friends. We never want
our grievances to be seen as anti- American. This is never our
heart which is why we went to the U.S. court for justice.
Instead the U.S. department proposed a political settlement.
Now the first phase of the program under political
settlement need to be continued and adapted to meet ongoing
needs. But the State Department is saying the United States
should walk away because the legal claims are ended. But the
full and final settlement of claims the State Department
imposed included changed circumstances and the Nuclear Claims
Tribunals.
So Congress needs to make a political decision about the
health needs of the four atolls and any other atolls found to
be exposed. Congress also needs to make a political decision
about the Nuclear Claims Tribunal awards.
If the political process is a dead end, if Congress has
lost political will to take actions to sustain political
settlement, then the Congress should return the claims to the
legal process in the U.S. courts to determine if further
compensation is owed.
This is what the Congress has done for judgment of the RMI
courts against the United States. So this is fair thing to do
to ensure the political settlement do not turn out to be
devised to prevent test and full compensation as promised by
the Congress in Section 177 of the Compact of Free Association.
In closing, Mr. Chairman, please allow me to introduce just
four of the people whose life tell our story. Senator Ismajon
of Enewetak, Senator Tomogachura of Bikini, Mary Jo Sol of
Utrik, and Lejon Aknigram of Rongelap, a survivor who saw the
ravages of radiation to their loved ones from the day fallout
came to their homelands. They are the ones who live with the
fear and random tragedy every day since. Their statements will
be submitted for the record.
And thank you, Mr. Chairman.
[The prepared statement of Mr. Yamamura follows:]
Prepared Statement of Hiroshi V. Yamamura, Senator, Republic of the
Marshall Islands
Chairman Domenici, Ranking Member Bingaman, and distinguished
members of the Committee. On behalf of the Four Atolls, I want to thank
you for this opportunity to testify here today. I am here to share with
you the story of the Four Atolls and the Nuclear Testing program.
Utrok, Bikini, Enewatak, and Rongelap are the four Northern
Marshall Island atolls whose people are recognized by United States law
as victims of the U.S. nuclear tests. Our people and our homelands have
been exposed to higher level of radiation that any other people or any
other place on earth. U.S. and international science have documented
our physical, emotional, psychological, cultural suffering and
hardship, and it has been greater than experienced by any other human
population affected by radiation exposure from nuclear weapons.
However, we do not want to be seen forever merely as victims. It is
hard to talk about ourselves only as victims and keep our dignity. We,
also, have learned that people get very uncomfortable hearing the truth
about what really happened to our people. So now, we want to be seen as
survivors, and we want to tell our story as survivors. The difference
between being a victim and being a survivor is justice. The difference
between victims and survivors is recovery, and to recover we need more
than resources. We, also, want and need truth and fairness.
That is the American way. The U.S. has been more just, humane, and
generous than any other nuclear power has been with victims of their
nuclear testing programs. However, we have not been given the full
measure of justice we deserve. We have not been treated with the same
degree of respect or concern as the victims of U.S. testing in the
American mainland. That is not the American way.
We are not U.S. citizens, but we were governed by the U.S. during
the nuclear testing program. Because of our shared history, we cast our
fate with the U.S. in the world. We are your allies and friends. We
never want our grievances to be seen as anti-American. That is never
our hearts.
It is just the opposite, which is why we went to the U.S. courts
for justice. Instead, the U.S. State Department proposed a political
settlement. Now the first phase of the programs under the political
settlement need to be continued and adapted to meet on-going needs, but
the State Department is saying the U.S. should walk away because the
legal claims are ended. But the full and final settlement of claims the
State Department imposed included changed circumstances and the Nuclear
Claims Tribunal. So Congress needs to make a political decision about
the health care needs of the four atolls and any other atolls found to
be exposed. Congress, also, needs to make a political decision about
the Nuclear Claims Tribunal awards.
If the political process is a dead end, if Congress has lost the
political will to take actions to sustain the political settlement then
the Congress should return the claims to the legal process in the U.S.
courts to determine if any further compensation is owed. That is what
the Congress has done for judgments of RMI courts against the U.S. that
were not settled politically. So that is the fair thing to do, to
ensure that the political settlement does not turn out to be a device
to prevent just and full compensation as promised by Congress in
Section 177 of the Compact of Free Association.
In closing, please allow me to introduce just four of the people
whose lives tell out story. Senator Ishmael John of Enewetak, Senator
Tomaki Juda of Bikini, Mayor Joe Saul of Urtok, and Lijon Eknilang of
Ronelap are survivors who saw the ravages of radiation to their loved
ones from the day fallout came to their homelands. They are the ones
who lived with the fear and random tragedy every day since. Their
statements will be submitted for the record. Thank you!
______
Prepared Statement of Senator Hiroshi V. Yamamura and Mayor Joe Saul
i. introduction
The impact of the Nuclear Testing Program on Utrok Atoll has been
devastating. The lands of Utrok were blanketed by deadly radioactive
ash from bombs ignited at the nearby Pacific Proving Grounds. The
people of Utrok were exposed to levels of radiation several thousand
times greater than that permitted in the United States under current
Environmental Protection Agency regulations. The result was tragic. An
epidemic of cancer, thyroid disease, birth defects and other health
related complications swept through the Utrok community. Today the
people of Utrok seek funding for medical monitoring and healthcare.
Such services are essential for the affected population, as well as
remuneration for clean up of the Atoll. Additionally the people of
Utrok seek either payment of its pending award from the Nuclear Claims
Tribunal or the opportunity to take this award to the Appellate
Division of the Federal Courts.
ii. the history of utrok and the nuclear testing program
On the morning of March 1, 1954, the people of Utrok were without
warning thrust into the Nuclear age. In the nearby Pacific Proving
Grounds, the largest device ever tested by the United States was
detonated. Deadly radioactive particles from the thermonuclear test,
code named `BRAVO' rained down upon the Utrok people within hours of
the explosion. These particles looked like a very thick fog or mist and
blanketed the entire atoll. No warning was given, nor were the people
told that this `fog' was in fact deadly radioactive ash. Unaware of the
danger, the people went about their daily lives. They consumed food and
water laced with radiation. Breathed air with deadly particles
suspended in it, slept in houses covered with nuclear ash.
Three days after the test, the U.S. navy ship, the USS Renshaw came
to evacuate the Utrok people. They were told that they were being
evacuated because the mist that fell on Utrok was ``poison'' and they
needed to leave. Over the next three months 5 more thermonuclear
weapons were tested as part of the Castle series of tests, and more
radioactive ash fell on Utrok atoll. Seven days after the last test,
the people were returned to their badly contaminated atoll with
assurances that it was a safe place to live. It is doubtful that these
representations were sincere. In 1956, at a classified meeting of the
Atomic Energy Commission Advisory Committee on Biology and Medicine a
highly respected U.S. scientist, Dr. Merril Eisenbud, said Utrok was
``the most contaminated place in the world . . .'' and ``it will be
very interesting to go back and get good environmental data, and
determine what isotopes are involved, so as to get a measure of the
human uptake when people live in a contaminated environment.'' His view
of the Utrok people was revealed in his statement that ``while it is
true these people do not live, I would say, the way Westerners do,
civilized people, it is nevertheless also true that these people are
more like us that the mice.''
In the decades that were to follow, this pre-mature return to Utrok
was to have devastating consequences. Most all members of the community
have felt the deadly effects of the radioactive fallout. Most every
family has lost a member to cancer. Miscarriages and stillbirths
ravaged the community. Before the bomb stillbirths were almost unknown,
with only 1 recorded case. After 1954, 15 cases were reported.
Miscarriages were also rare in the years prior to the testing. Only
three miscarriages were known to have occurred before the testing.
After 1954, that number increased to 41, well over ten times the pre-
testing number.
The mutations that occurred after the testing had never been
experienced on Utrok in earlier years. Bella Compoj, in a 1981
interview about life after Bravo stated:
I recall seeing a woman named LiBila after our return and her
skin looked as if someone had poured scalding water over her
body, and she was in great pain until she died a few years
after ``the bomb.'' LiBila had a son two years after `the bomb'
who died a few months after birth, and I remember that his feet
were quite swollen and his body was burning--the AEC (Atomic
Energy Commission) doctors said he died because of the
``poison'' (``radiation''). Also, after our return to Utrok,
Nerik gave birth to something like the intestines of a turtle,
which was very sticky like a jellyfish. Soon afterwards, many
other women would be pregnant for about five months and then
they turned out not to be pregnant after all. I too thought
that I was pregnant and after three months I found I was not.
This was quite new for the women here, and this never happened
before the bomb.
The nightmare of severely deformed babies is not yet over on Utrok.
In 2005, five babies were born with terrible mutations, such as swollen
heads, no ears, and other malformations. All of these children died
within weeks of their birth.
Today Utrok remains contaminated at levels in excess of those
required under U.S. EPA guidelines for clean up of radioactive sites.
Many members of the Utrok community are too fearful to reside on Utrok
and have abandoned their homes. The dread of knowing that they are
living on contaminated land and may at any moment suffer the fate of so
many of their friends and loved ones is a nightmare not yet over.
iii. remediation needed for the people of utrok
Today many of the harms caused by the Nuclear Testing Program
remain unresolved. Three specific remedies are sought to resolve the
nuclear legacy.
1. A comprehensive and inclusive medical monitoring and treatment
program for the people of Utrok. Unlike the existing programs, the
entire population should be included in a unified program designed to
service the needs of the patients, and include all those who have been
exposed, not just those present on March 1, 1954.
2. A clean up of Utrok Atoll should be undertaken to once and for
all end the ordeal of further radiation exposure, and to assure the
community that future generations will be free from the nuclear horror.
3. For Utrok's claim before the Nuclear Claims Tribunal, remanded
to the Appellate Division of the United States Federal Courts for
review and final determination.
iv. conclusion
The Utrok community has borne the brunt of the Nuclear Testing
Program. Residing on one of the northern most atolls `downwind' of the
Test cites the people of Utrok suffered exposure to very high levels of
radiation. The consequence was an epidemic of health consequences,
which have forever scarred the community. Today, adequate healthcare,
clean up, and referral of the Tribunal's pending award to the U.S.
Federal Appellate Courts are needed to conclude once and for all the
dreadful experience of Utrok Atoll and the Nuclear age.
Senator Akaka. Thank you very much, Senator, for your
testimony.
And now I will hear from chairman of the Claims Tribunal,
James Plasman.
STATEMENT OF JAMES H. PLASMAN, CHAIRMAN, NUCLEAR CLAIMS
TRIBUNAL, REPUBLIC OF MARSHALL ISLANDS
Mr. Plasman. Thank you, Mr. Chairman, distinguished
members.
The Nuclear Claims Tribunal was created pursuant to the
Section 177 Agreement to determine all claims of the people of
the Marshall Islands which are related to the nuclear testing
program.
The tribunal has dealt with property claims on a class
action adjudicatory basis while individual personal injury
claims have been addressed through an administrative structure
based upon U.S. programs designed to compensate radiation-
related injuries to U.S. citizens.
We view these personal injury claims in the context of the
current knowledge about the health effects of the testing
program. From the continuing development of scientific
knowledge, particularly the recent report to this committee by
the National Cancer Institute, it is clear that the number and
distribution of cancers and other health effects resulting from
the nuclear testing program in the Marshall Islands greatly
exceeds what was known at the effective date of the 177
Agreement.
The tribunal system for personal injury claims uses the
same presumption of causation approach established by the
``U.S. Radiation Exposure Compensation Act'' of 1990. By
assuming causation if an eligible claimant develops a
radiogenic disease, the difficult task of proving legal
causation is eased.
In discussing the appropriate response for radiation-caused
injuries to those downwind of the Nevada test site, Senator
Grassly of Iowa commented on the floor of the Senate nearly 15
years ago ``the litigation solution works as a cruel hoax on
the intended beneficiaries. It holds out the prospect for
recovery but frustrates the victims by delay and expense.''
He went on to say ``if the Government is responsible, and
the evidence strongly suggests that it is, then let us create a
compensation system outside of the courts to provide relief
faster without litigation expenses, without having to prove
fault, and without lengthy appeals.''
There are several studies and reports cited in my written
statement which document that fallout extended beyond the four
atolls identified in the Section 177 Agreement. These provide a
compelling basis for the tribunal's determination to pattern
its personal injury compensation program on the presumption of
causation approach adopted by the Congress for those
downwinders.
While the tribunal has made awards to nearly 2,000
individuals, these awards are not all for past cancers. More
than 1,000 are for radiogenic nonmalignant thyroid conditions
and another 144 are for noncancerous acute radiation sickness
and beta burns diagnosed in 1954.
It must be understood that there are no clinical features
distinguishing a cancer caused by radiation from one caused by
other factors. This central fact lies at the heart of the
presumption of causation approach used by the tribunal and by
the United States.
As a result, compensation may be awarded more broadly than
if proof of causation were required. However, built in to these
presumptive programs is a limit on the amounts of compensation.
If the causal connection of the claimant's condition to
radiation exposure were proven to the satisfaction of a court,
the majority of damages would be far higher than the awards
provided either under the ``Radiation Exposure Compensation
Act'' or under the Tribunal's Personal Injury Compensation
Program.
In floor comments on the ``Radiation Exposure Compensation
Act'' in 1990, Representative James of Florida remarked ``the
limitations in this bill are only $50,000 for the downwinders.
That is hardly tantamount to a large torque claim award which
could be in the millions.''
He further noted ``similar comments can be made about the
miner's $100,000. That is insignificant compared to a judgment
that might be awarded if clear liability were found.
``So this is not like giving the full amount that a jury
might give. It is only a fractional part to ease some of the
pain economically to these miners.''
While it has been suggested that a probability of causation
approach to compensation would provide a more precise means of
targeting compensation to those actually affected by the
testing program, there is simply insufficient information to
recreate individual doses of people in the Marshall Islands for
the purposes of a probability of causation analysis.
The $150 million nuclear claims fund is virtually
exhausted. Now it stands at less than $3.5 million. $15.7
million are needed to pay off personal injury awards made to
date. With more than half the cancers estimated by the National
Cancer Institute yet to develop, that amount does not reflect
future awards.
The significant number of future cancers and other medical
conditions caused by the testing program will require resources
for surveillance and treatment of these conditions. In
addition, appropriate treatment of tribunal property awards is
necessary.
Finally, I would like to express my appreciation to this
committee for its request to the NCI regarding the cancer
effects of the nuclear testing program in the Marshall Islands.
This request and the resultant study give hope to the people of
the Marshall Islands that when the resources of this great
Nation are directed to resolving problems, justice can be
achieved.
Thank you, Mr. Chairman. I would be happy to answer any
questions.
Senator Akaka. Thank you very much.
[The prepared stated of Mr. Plasman follows:]
Prepared Statement of James H. Plasman, Chairman, Nuclear Claims
Tribunal, Republic of the Marshall Islands
The number of cancers and other health effects resulting from the
nuclear testing program in the Marshall Islands greatly exceeds what
was known at the time the Section 177 Agreement became effective in
1986. While there were grounds for an argument of changed circumstances
under the terms of the Section 177 Agreement even before the recent
study by the National Cancer Institute (``Estimation of the Baseline
Number of Cancers Among Marshallese and the Number of Cancers
Attributable to Exposure to Fallout from Nuclear Weapons Testing
Conducted in the Marshall Islands,'' prepared for Senate Committee on
Energy and Natural Resources, September 2004,) the results of the NCI
study firmly establish the existence of changed circumstances.
The baseline of what was known about radiation health effects may
be established by a paper, presented in October 1987 to the Japanese
Nuclear Medicine Society by Jacob Robbins (Clinical Endocrinology
Branch, National Institutes of Health, Bethesda, Maryland) and William
H. Adams (Medical Department, Brookhaven National Laboratory, Upton,
New York), two well established scientists with significant experience
in the Marshall Islands (Brookhaven National Laboratory was the
institution charged with observing and reporting on the health of the
affected Marshallese people.) This paper, ``Radiation Effects in the
Marshall Islands,'' was later published in Radiation and the Thyroid:
Proceedings of the 27th Annual Meeting of the Japanese Nuclear Medicine
Society, Nagasaki, Japan, October 1--3, 1987, Shigenobu Nagataki,
editor, Excerpta Medica, Amsterdam-Princeton-Hong Kong-Tokyo-Sydney,
1989.
In terms of early radiation effects, they reported on Rongelap
``about two-thirds of the people developed anorexia and nausea and one-
tenth had vomiting and diarrhea . . . skin burns appeared after 12-14
days in about 90% of the Rongelap inhabitants.''
In regards to late effects, they noted: ``It has become evident
that thyroid abnormalities--which include benign and malignant thyroid
tumors and thyroid failure--are the major late effects of the radiation
received by the exposed Marshallese.'' They found the following thyroid
effects, through 1986: 2 cases of profound growth failure in two boys
due to radiation related thyroid atrophy; 12 cases of hypothyroidism
not related to thyroid surgery; 51 observed thyroid nodules (16
expected, 35 excess;) 9 observed thyroid cancers (2 expected, 7
excess.)
They observed three fatal cancers (leukemia, stomach cancer, and
cranial meningioma) and six ``nonlethal'' tumors (a neurofibroma, a
breast cancer, a colon cancer, and three pituitary tumors) as other
``late radiation effects--or possible radiation effects.''
It should also be acknowledged that the U.S. Department of Energy
in 1982 (``The Meaning of Radiation for Those Atolls in the Northern
Part of the Marshall Islands That Were Surveyed in 1978'') estimated an
additional two cancers would result from exposures in the thirty years
following the Radiological Survey of the Northern Marshall Islands,
conducted in 1978.
These findings establish what was known about health effects of the
nuclear testing program at the time of the Section 177 Agreement.
The NCI study establishes a basis for what we know now about these
test related health effects, and reveals the following comparisons of
radiation induced cancers:
------------------------------------------------------------------------
Current
Cancer 1986 (Adams/Robbins) (NCI)
------------------------------------------------------------------------
Leukemia............................ 1...................... 5
Stomach............................. 1...................... 15
Colon............................... 1...................... 157
Thyroid............................. 7...................... 262
Other............................... 6 (includes non-lethal 93
tumors).
-----------------------------------
16
+2 (DOE future cancers)
--------------------------
Total........................... 18..................... 532
------------------------------------------------------------------------
If the same ratio of radiation excess thyroid nodules (35) to
excess thyroid cancers (7) that appears in the Adams/Robbins paper is
applied to the NCI estimate of 262 excess thyroid cancers, the number
of radiation caused thyroid nodules would be 5 x 262 = 1310. These
thyroid disorders, attributable to the nuclear testing program, are
health effects suffered by the Marshallese people in addition to the
cancers estimated by the NCI.
The stark contrast of what was known at the time of the Section 177
Agreement about the health effects resulting from the testing program
and what is known now in light of the NCI study must be regarded as a
changed circumstance.
While the Petition as originally filed included a request of $26.9
million for the unpaid balance of personal injury awards, that amount
now stands at $15.7 million. However, with more than half the cancers
estimated by the NCI yet to develop, that amount reflects only the
current balance due and does not reflect future awards.
the tribunal was justified in adopting the presumption of causation
approach
In adopting a presumption of causation approach, the Tribunal
primarily relied upon the precedent set by the Radiation-Exposed
Veterans Compensation Act of 1988, Public Law 100-321, and by the
Radiation Exposure Compensation Act (RECA) of 1990, Public Law 101 426,
particularly with its application to the Downwinders--those residents
in the areas around the Nevada testing grounds who were affected by
fallout from the tests. A primary source of scientific support for
these programs was the work of the National Academy of Sciences'
Committee on the Biological Effects of Ionizing Radiation. Passage of
the Veterans Compensation Act in 1988 relied primarily upon the
Committee's third report, so-called BEIR III, while RECA had the
benefit of BEIR V. The BEIR V Committee made heavy reference to the
work of the Radiation Effects Research Foundation (RERF), a bilateral
undertaking of Japanese and American scientists to study the human
health effects of the atomic bombings of Hiroshima and Nagasaki. The
Committee also used data from other well studied human populations
exposed to radiation and referred to experimental studies on laboratory
animals. Of particular importance, supporting the use of a presumption
of causation, was the determination that there was no threshold dose
below which stochastic effects such as the development of cancer would
not occur. To the extent that these U.S. programs relied upon this body
of work as the scientific basis for compensation, by extension, the
Tribunal made similar reliance.
In adopting the Veterans Compensation Act and RECA, Congress was
clearly motivated by the perception that the government had wronged
these victims of radiation exposure and that unreasonable standards of
proof should not stand in the way of compensating deserving
individuals.
Both of these compensatory programs rely upon a presumption of
causation to determine eligibility for compensation. In both situations
there was a desire on the part of Congress to enact a system that was
fair and reasonable, in light of the difficulties in proof of
causation, but also that was efficient and cost effective. The use of
the presumption of causation addressed this desire. In speaking against
an amendment to remove the immunity from law suit of governmental
contractors involved in atomic weapons development (floor debate on
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1991, Congressional
Record--August 03, 1990, p. S12117,) Senator Grassley of Iowa
articulated these concerns:
The litigation solution works as a cruel hoax on the intended
beneficiaries; it holds out the prospect for recovery, but
frustrates the victims by delay and expense. The Justice
Department testified that radiation cases take much longer to
prepare and try than do most other types of litigation; a
typical case would take more than 5 years to resolve. Worse,
simply repealing the Warner amendment will do nothing to solve
the enormous proof problems that plaintiffs will face,
attempting to link their exposure to current disease.
A straight repeal of the Warner amendment may give some a
warm feeling, and it will surely bring a smile to a lawyer's
face, but it will mean scant little for those who need help the
most.
Mr. President, these people don't need lawyers, they need
money to pay their medical bills, to care for their sick or
terminally ill.
If the Government is responsible, and the evidence strongly
suggests that it is, then let's create a compensation system
outside of the courts to provide relief--faster, without
litigation expenses, without having to prove fault, and without
lengthy appeals.
In recent years, we have shown a preference for compensation
over litigation, with enactment of the child vaccine
compensation legislation, the Radiation-Exposed Veterans
Compensation Act of 1988, and the Veterans Dioxin and Radiation
Exposure Act (Public Law 98-542) among others.
The motivation for a simple, reasonable administrative system was
strengthened by the perception that the government had not only harmed
these victims of radiation exposure, but had done so in a significantly
wrongful manner. In floor comments on the Radiation-Exposed Veterans
Compensation Act 1988 (see Congressional Record--Senate for April 25,
1988, pgs. 4637 4641), Senator Cranston of California said, ``Science
has clearly proven that ionizing radiation can produce serious adverse
human health effects. While we do not have all the answers as to how
much radiation exposure is necessary before the various adverse effects
appear, there is a long list of cancers for which radiation has been
established as a risk factor.'' He went on to say that ``these veterans
were not informed of the risks associated with their participation in
the nuclear weapons testing program, nor was their health status
systematically monitored thereafter. Accordingly, I strongly believe
that we have the responsibility to ensure that these veterans finally
are treated in an evenhanded and compassionate way with respect to
their claims for VA benefits.''
The Marshallese people were never informed of the risks associated
with their participation in the nuclear tests in the Pacific. Their
health status was never systematically monitored until after the tragic
events following the BRAVO test in 1954, and then, only a small
fraction of the exposed population was covered. These similarities
between the U.S. affected populations and the Marshallese affected
population provide compelling justification for following U.S.
precedent in adopting a presumption of causation.
The Tribunal provided an in-depth discussion of the reasons for
believing the extent of fallout in the Marshall Islands went beyond the
four atolls identified in the Section 177 Agreement, on March 18, 2005
in Majuro, to two senior staff members of this committee and to the
U.S. Ambassador to the Republic of the Marshall Islands. Attached is a
written statement which addresses the points made at that oral
presentation.*
---------------------------------------------------------------------------
* Retained in committee files.
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In summary of that discussion, the Tribunal felt there was ample
information available, even before the NCI study, to support the
extension of the presumption of causation throughout the Marshall
Islands. First, is an article which appeared in the Journal of the
American Medical Society (Hamilton, T. E.; van Belle, G.; LoGerfo, J.
P.; ``Thyroid Neoplasia in Marshall Islanders Exposed to Nuclear
Fallout,'' Journal of the American Medical Association, 258:629 636;
1987), which investigated the appearance of thyroid nodules in 12
atolls previously thought to be unexposed to fallout from the testing
program. The investigators not only found a higher than expected
incidence of thyroid nodules in these atolls, but also found the
incidence rate showed an inverse linear relationship with distance from
Bikini, strongly suggesting that the nodules were caused by radiation
from the tests.
Secondly, the findings of the Marshall Islands Nationwide
Radiological Study issued in 1994, reported Cesium 137 levels two to 11
times greater than global fallout at 15 atolls that were not included
in the Section 177 Agreement.
The release in 1994 of a previously classified Atomic Energy
Commission report from 1955 (Breslin, A.J.; Cassidy, M.E.;
``Radioactive Debris from Operation Castle, Islands of the Mid
Pacific,'' New York: U.S. Atomic Energy Commission, New York Operations
Office, Health and Safety Laboratory; NYO 4623; 1955) provided
significant support for the nationwide application of the presumption
of causation by the Tribunal. That report was based on aerial
monitoring conducted during the Castle series throughout the Marshall
Islands and indicated external radiation exposures to every atoll of
the Marshall Islands, in contradiction to the DOE position that only
the northern four atolls received fallout from the tests. Internal
exposures would have increased the level of exposure even higher than
those reported by Breslin and Cassidy.
During the testing program, a monitoring station was maintained on
Kwajalein Atoll. Although the gummed film methodology utilized there
provided only a crude measurement of fallout, ``The clear indication
from the monitoring station was that deposition of fresh fallout
occurred at Kwajalein Atoll within a single day following every one of
the detonations over 1 megaton explosive yield'' (Simon, S.L.;
``STATEMENT OF STEVEN L. SIMON, PhD, Director, Nationwide Radiological
Study, Republic of the Marshall Islands, Submitted to the United States
House of Representatives, Committee on Natural Resources, Subcommittee
on Oversight and Investigations in respect to United States Weapons
Testing in the Marshall Islands,'' February 24, 1994.) These findings
were reiterated in a 1997 report (Takahashi, T., et al.; ``An
Investigation into the Prevalence of Thyroid Disease on Kwajalein
Atoll, Marshall Islands,'' Health Phys. 73:199 213; 1997) that stated
the data showed that ``all eighteen of the large Marshall Islands tests
(those >1 MT explosive yield) were detected at Kwajalein at about 100 X
the background radiation level (Simon and Graham 1996). Presumably,
other mid latitude atolls in the Marshall Islands received similar
amounts of early fallout as did Kwajalein.''
These studies, and those cited in the attachment, provide an ample
basis for the extension of the presumption of causation throughout the
Marshall Islands.
the tribunal has not ``overcompensated''
While the Tribunal has made awards to 1,941 individuals, it would
be a misstatement to say that all these awards are for past cancers,
because in fact more than 1,000 are for non-malignant thyroid
conditions. As noted by Robbins and Adams in their 1987 paper, ``It has
become evident that thyroid abnormalities--which include benign and
malignant thyroid tumors and thyroid failure--are the major late
effects of the radiation received by the exposed Marshallese.''
Although the full extent of those effects was not recognized at the
time of the paper's presentation, the sensitivity of the thyroid gland
to radiation, beyond the development of cancer, has long been
recognized.
The NCI study addresses only cancers and states, ``Estimation of
diseases other than cancer is more problematic . . . and would require
access to expertise and data not readily available at the National
Cancer Institute.''
As noted above, based on the Robbins and Adams findings on the
relationship between thyroid nodules and thyroid cancer, and based on
NCI's estimate of 262 excess radiation related thyroid cancers, 1,310
radiation related thyroid nodules could be expected to occur in the
Marshall Islands. Another 144 of the Tribunal awards are for radiation
sickness and beta burns, both of which are directly related to
radiation exposure, but are not cancerous conditions.
It should be noted that these non-malignant conditions are awarded
compensation at levels significantly less than award levels for
cancers. The most lethal and serious cancers are awarded up to $125,000
by the Tribunal (with downward adjustments based upon the age at which
the condition manifests,) while a benign thyroid nodule not requiring
surgery is awarded $12,500.
It must be understood that while the Tribunal has made more awards
for cancer than the NCI estimate of radiation excess cancers, there are
no clinically distinguishing features of a radiation related cancer to
differentiate such cancers from non-radiation caused cancers.
This central fact of radiation related cancers lies at the heart of
the presumption of causation utilized by the Tribunal and by Department
of Justice for Downwinders in the United States under the Radiation
Exposure Compensation Act and by the Veterans Administration for its
statutory program for radiation exposed veterans. In order to meet the
goals of the programs to compensate the victims of radiation exposure,
it is deemed better to compensate broadly than to neglect compensation
for those who are unable to prove with scientific certainty that their
conditions were in fact caused by their radiation exposures. Built into
such programs is the limitation of awards to set amounts which
recognize the over-inclusive nature of the compensatory scheme. Surely
if an individual awardee, whether a Downwinder, or a Marshall Islander,
were able to prove to the satisfaction of a court the causal connection
of the awardee's condition to radiation exposure, the measure of
damages would be far higher than the awards provided either by RECA or
by the Tribunal.
This aspect of these programs was clearly recognized in comments on
the floor of the House during discussion of the Radiation Exposure
Compensation Act on June 5, 1990, as Representative James of Florida
remarked (p. H3144, Congressional Record):
Mr. Speaker, I would like to point out in this bill; I do not
think it has been said yet, or, if it has, it has not been
emphasized as much as it might, but the limitations in this
bill are only $50,000 for the downwinders. That is hardly
tantamount to a large tort claim award, which could be in the
millions.
It also has a savings aspect to it to the Government. It
saves the attorneys fees, the expenses and the costs, a portion
of which we are awarding would be consumed anyway. So, there is
actually a substantial savings, probably to the Government,
maybe not to the tune of the total amount of the judgments.
Similar comments can be made about the miners' $100,000. That
is insignificant compared to a judgment that might be awarded
if clear liability were found.
So, this is not like giving the full amount that a jury might
give. It is only a fractional part to ease some of the pain
economically to these miners.
If the award levels were based on the value of a statistical life,
as utilized by regulatory agencies for cost-benefit analysis, the award
levels would likewise be much higher. For instance, it has been
reported (``Valuation of Human Health and Welfare Effects of Criteria
Pollutants,'' Appendix H, The Benefits and Costs of the Clean Air Act,
1990 to 2010, EPA, 1997) that while values differ from program to
program, the mean value of a statistical life for regulatory purposes
is $4.8 million. Even acknowledging that not all cancers in the NCI
study are fatal, the level of compensation determined under such a
methodology would far exceed what the Marshall Islands received under
the Section 177 Agreement for all damages, not simply personal
injuries.
It has been argued that a probability of causation or ``assigned
share'' approach to compensation would provide a more precise means of
targeting compensation to those actually affected by the testing
program. One of the dangers in such approach is that by its nature, it
looks only at the probabilities in a case and does not provide an
answer to causation in fact. As a result, a claimant whose cancer was
caused in fact by exposure to radiation could fail to qualify for
compensation because the probabilities were against him or her. A
further difficulty is the cost of implementing such a system. One
expert estimates the cost of each reconstruction, based on EEOICPA
experience could run as high as $30,000 to $40,000.
More importantly, there is simply insufficient information to
recreate individual doses for people in the Marshall Islands for the
purposes of a probability of causation analysis. As noted in the NCI
study: ``Following the nuclear tests that took place some 50 years ago
in the Marshall Islands; measurements were sparse and generally
uncertain. The little data now available to reconstruct doses at many
different locations present difficult challenges for dosimetrists.''
In the compensation program established for U.S. Department of
Energy employees exposed to radiation (EEOICPA), a probability of
causation approach is utilized. Energy employees worked in a closely
monitored environment where many wore dosimetry badges which provide a
basis for precise dose reconstructions. Even in these controlled
situations, EEOICPA provides for a presumption of causation approach
when there is insufficient information to adequately reconstruct doses
and where there is a reasonable likelihood of exposure to harm. The
level of data for Energy employees far exceeds that available in the
Marshall Islands. The NCI report shows excess cancers throughout the
Marshall Islands, even in the southern-most atolls characterized by NCI
as ``very low exposure.'' This excess presents a reasonable likelihood
of harm to the entire Marshall Islands. Under these circumstances and
the precedent set by EEOICPA, the extension of the presumption of
causation throughout the Marshall Islands is reasonable.
what is needed
While the Petition as originally filed included a request of $26.9
million for the unpaid balance of personal injury awards, that amount
now stands at $15.7 million. However, with more than half the cancers
estimated by the NCI yet to develop, that amount reflects only the
current balance due and does not reflect future awards. At the end of
2003, the Tribunal had awarded $83 million. The NCI reports: ``About
56% of the total radiation-related cases have yet to develop or to be
diagnosed, compared to about 50% of the baseline cancers. This temporal
distribution reflects the generally young age structure of the exposed
population and the greater sensitivity at younger ages to radiation
carcinogenesis.'' (p. 16) Assuming the NCI estimate of past and future
cancers reflects the same ratio of overall health conditions
compensated by the Tribunal past and future, and assuming the Tribunal
compensation scheme is fair and reasonable, then the $83 million
awarded at the end of 2003 represents 44 percent of the level of fair
and reasonable compensation for personal injuries. Assuming 56% of
conditions will need to be compensated after 2003, then another $105.6
million will be necessary for personal injury compensation (56/44 x 83
= 105.6.)
The significant number of future cancers and other medical
conditions will also require assistance for surveillance and treatment
of these conditions. Finally, appropriate treatment of Tribunal
property awards is necessary, through referral to the federal courts.
Senator Akaka. May I call on Dr. Neal Palafox.
STATEMENT OF DR. NEAL A. PALAFOX, MD, MPH, PROFESSOR AND CHAIR,
DEPARTMENT OF FAMILY MEDICINE AND COMMUNITY HEALTH, JOHN A.
BURNS SCHOOL OF MEDICINE, UNIVERSITY OF HAWAII
Dr. Palafox. Senator Akaka, Senator Murkowski, cancers and
thyroid disease have long been linked to radiation exposure.
The 2004 NCI report estimates 530 cancers were generated from
all parts of the Marshall Islands due to weapons testing. Half
of the 530 cancers will develop after 2004.
The 2005 BEIR VII report from the National Academy of
Sciences also links radiation to noncancer illness including
heart disease, stroke, blood disease, and genetic effects.
The entire testing program caused 50 years of social-
cultural disruption such as alienation from the land,
destruction of traditional diets and lifestyle which are
associated with adverse health outcomes.
Psychic trauma from loss of culture, fear of developing
cancer, inability to get appropriate health care affects well-
being. Many health effects have yet to be quantified.
The 2004 NCI report quantifies a risk of cancer for
Marshallese between 1946 and 1958. What is the risk of cancers
in the populations who lived in radiation-contaminated
environments after 1958?
Of 300 Marshallese and Micronesian workers who participated
in the cleanup of contaminated and nuclear debris in Bikini and
Enewetak, what is their cancer risk?
How should radiation-related stroke, heart disease, and
genetic disease be treated in changing health circumstances?
How are health problems for displacement of people, social-
cultural upheaval, and psychic trauma to be handled though
these health effects are very difficult to quantify?
The health effects of nuclear testing cannot be distilled
to cancer alone. The health system needed to address the health
effects of nuclear testing must be comprehensive.
The present health care environment of the Republic of the
Marshall Islands reflects an infant mortality three to four
times that the United States. Marshallese live 10 years less
than the people of the United States. Kidney failure is
commonplace, yet their is no dialysis available.
The 15-year Marshall Islands Health Plan describes a health
system that is financially not sustainable. The annual health
care budget of 12 million coupled with a contribution from the
Ebeye special fund totals $15 million annually.
For comparison purposes, the Commonwealth of the North
Marianas with the same population as RMI has an annual budget
of $45 million annually. The CNMI has no health impacts from
weapons testing.
There are two fairly funded medical programs for people
affected by the weapons testing program, the DOE Medical
Program and the 177 Program. The DOE program is provided to the
populations present on Rongelap and Utrik during the 1954 BRAVO
test for about $2 million annually. The funding for the program
participants, now about 200, is adequate. However, program
policy limits care likely to cancer and thyroid illness.
The 177 Health Care Program was designed to provide
comprehensive health care to the people of Enewetak, Bikini,
Rongelap, and Utrik. The program with an annual budget of $1
million attempts to operate a comprehensive health care system
for 14,000 participants. That is about $7.00 per person per
month.
In comparison, U.S. comprehensive health programs spend
between $200 and $700 per person per month. Funding is grossly
inadequate to provide health care under this 177 Program.
The national RMI health system's 177 Program and DOE
program are unable to care for the expected burden of cancer.
There is no mammography to detect breast cancer or colonoscopy
equipment to detect colon cancer in Ebeye. There is no
operational CAT Scan in the Marshall Islands, no chemotherapy,
no oncologists, and no cancer registry.
Comprehensive cancer requires prevention screening,
pathology service, lab services, and issues related to quality
of life. None of these systems are fully operational and some
are nonexistent.
Many cancer patients who enter the medical system in Hawaii
and Guam, enter medical systems in Hawaii and Guam, those who
are not supported by the RMI government referral process levy a
heavy, significant financial stress on Hawaii and Guam.
What can be done? Firstly, a U.S. standard comprehensive
cancer care system with the highly specialized parts of cancers
treatment purchase in Hawaii that could handle the NCI
projected cancers would cost about $9 million annually for a
ten-bed cancer facility and would include prevention,
screening, and monitoring. Capital costs would be in the order
of $6 million. This system would be limited to cancer care.
Second, the 177 Health Care Program could be brought to a
U.S. standard. At a cost of $300 per person per month, this
comprehensive health care system would cost $50 million
annually. This program would be limited to the four atoll
population.
Third, the existing RMI National Health System could be
enhanced. Building a comprehensive system to provide high
standards of health care for all Marshallese affected by
nuclear testing can be accomplished for an operations cost of
about $45 million annually with $50 million in capital costs.
This program would be better prepared for the health
consequences of a nuclear testing in a cost-effective,
capacity-building manner.
Health consequences of nuclear testing are not limited to
cancer. Some of the health consequences have yet to be
quantified. The health system required to care for health
consequences of the U.S. Nuclear Testing Program must provide
comprehensive care and health care for all affected.
The RMI has gone 50 years without adequate health care.
There is ongoing suffering in the Marshall Islands today.
Action must be now.
Thank you very much for supporting the CCP petition.
Senator Akaka. Thank you, Dr. Palafox.
[The prepared statement of Dr. Palafox follows:]
Prepared Statement of Neal A. Palafox, MD, MPH, Professor and Chair,
Department of Family Medicine and Community Health, John A. Burns
School of Medicine, University of Hawaii
introduction
The purpose of this testimony is to speak to the health
consequences of the U.S. Nuclear Weapons Testing Program (USNWTP) in
the Republic of the Marshall Islands and the health system that is
needed to address those consequences. The current status of the health
care services of the RMI and the medical programs designed for those
who were adversely affected by the USNWTP (177 Health Program/ DOE
Medical Program) will be discussed. Finally, the cost and rationale for
three health system solutions to address the varied health consequences
of the nuclear weapons testing program will be presented. .
health effects of the u.s. nuclear weapons testing program
Health, as defined by the World Health Organization (WHO), is ``a
state of complete physical, mental and social well being, and not
merely the absence of disease or infirmity.'' The health consequences
of USNWTP are acute medical conditions, chronic medical conditions,
cultural impacts, mental health impacts, and social impacts.
A holistic approach to health must be part of any discussion on
health consequences of nuclear testing because ``health'' in nuclear
testing is often distilled to ionizing radiation and cancers. Health
consequences of nuclear testing are a product of the bomb blast and the
effect the process of testing had on the humans living in that
environment. Utilizing a holistic approach is crucial in health care
systems affecting indigenous Pacific populations.
Cancers, hypothyroidism and thyroid nodules are clearly linked to
ionizing radiation exposure. The 2004 NCI report estimates 530 excess
cancers from the USNWTP in the RMI. Half of the 530 excess cancers have
yet to manifest themselves in the Marshall Islands population because
of the length of time (latency) it takes for a cancer to manifest
itself following the deleterious effects of ionizing radiation.
The latest scientific information on the biological effects of low
dose ionizing radiation 2005 BEIR VII report from the National Academy
of Sciences adds that exposure to even extremely low doses of ionizing
radiation may place individuals at a risk for cancer. BEIR VII also
notes that intergenerational (hereditary) genetic effects may be
possible in humans since intergenerational effects caused by ionizing
radiation have been noted in mice and insects.
Cultural and social disruptions from the USNWTP are associated with
adverse health outcomes and illness. Alienation from the land and
critical natural resources through radioactive contamination or forced
evacuation destroyed the physical and cultural means of sustaining and
reproducing a self-sufficient way of life. It also destroyed community
integrity, traditional health practices and sociopolitical
relationships. Furthermore, community history and knowledge is
destroyed when there is no lineage land from which to pass on knowledge
about the local environment.
Food supplementation became necessary for those who were displaced
from their land and for those whose lands and food sources were
contaminated with radiation. For many years, the U.S. Government has
provided USDA foods, mostly white rice and other processed foods, to
the people of the four atolls. Although some atoll communities are now
using U.S. funding to purchase and ship their own foods rather than
USDA foods, several adverse health impacts of USDA food supplements are
evident in the recipient communities, as noted below:
1. The natural diet has been altered.
2. The available Western diet is high in fat, high in
carbohydrates, low in fiber, and lacks Vitamin A and iron.
3. There has been a loss of the cultural activities and norms
surrounding food gathering and preparation.
4. The loss of the physical activities surrounding food
preparation has resulted in a more sedentary lifestyle.
5. Diseases such as diabetes, atherosclerotic diseases, and
hypertension have been exacerbated by the Westernized diet and
more sedentary lifestyle.
6. The industriousness and work ethic needed to prepare local
foods from coral atolls with few natural resources has been
stifled.
7. Dependency on food supplementation has become a norm
destroying the fabric of a once self-reliant community.
Bodily harm is a tragedy that affects an individual for a finite
period of time, whereas cultural destruction adversely affects the
health of entire communities for generations. Cultural, mental and
social impacts are difficult to quantify and measure and so it becomes
easy to pretend they do not exist. The cancer burden that was generated
from the nuclear testing program was quantified by the NCI 50 years
after the insult. Other health consequences will likely be quantified
soon.
health care environment and services in the rmi
RMI Ministry of Health and Environment
The present health care environment of the Republic of the Marshall
Islands is brittle. Many unnecessary illnesses and deaths occur because
the health care system cannot systematically respond to the health
needs of the people. The health situation will get worse as the
population expands, as the proportion of elderly increases, as the
burden of costly chronic illnesses grows, and as the limited health
dollars and finances wane. The infant mortality rate is 3-4 times that
of the U.S., and the longevity of Marshallese is 12 years less than
people in the U.S. Hansen's disease (leprosy) and TB are commonplace.
The 15-year RMI Strategic Health Plan (2001-2015) describes a
health system that is not financially sustainable with its present
resources. According to the RMI Health Plan, the Ministry of Health is
projected to lose an equivalent of $21 million dollars in services over
the next 15 years under present funding and levels of health care. The
RMI pays nearly $2 million dollars a year, a significant portion of all
its annual health expenditures, for medical cases sent out of the
country for treatment because of lack of health infrastructure. The
monies spent in referral health centers abroad are not directed towards
the RMI health infrastructure.
Compact funds are the primary source of healthcare dollars and
resources. Funding from the Compact represents nearly half of the Gross
National Product of the RMI and 40% of all health care funding (direct
Compact funds, Section 177 funds, U.S. Federal Grants) in the RMI.
Another 23% of the health care dollars have been derived from the RMI
General Fund. Less than 1 % of health dollars has been derived from
local user fees.
The total amount of all the sources of health revenue for fiscal
year 2005 is about $14 million dollars. As a comparison, the
Commonwealth of the Northern Marianas is struggling with an annual
health budget of $45 million annually. The populations of these two
Pacific countries are similar, 55 thousand people.
The 2004-2005 Budget Portfolio of the RMI Health Services describes
some changes in health allocations with the amended Compact. There is
now a Ebeye Special Needs fund in the amount of $3.1 million of which
$1.5 million is allocated to the Ebeye hospital. While this special
fund is being added to the health care budget, the amount for the 177
Health Program has decreased by 1 million annually. On balance there
has been a modest gain in finance.
In Majuro Hospital there are sometimes no oxygen supplies for the
operating room and critical patients, there are no reagents for many
simple laboratory tests, and there are no biopsy needles for
examination of common cancers. Renal failure is commonplace because of
high rates of diabetes, yet there is no dialysis unit in the RMI.
Federally Funded Medical Programs for Marshallese affected by the
USNWTP
There are two Medical care programs for people affected by the
USNWTP, the DOE Medical Program and the 177 Health Program.
DOE Program
Section 103(h) of the Compact ``provide(s) special medical care and
logistical support'' to the populations present on Rongelap and Utrik
during the Bravo test on March 1, 1954. The Department of Energy
program also provides medical care to a comparison population. Members
of the comparison group were not exposed to the Bravo fallout in 1954.
However, they were resettled on Rongelap with the Bravo victims at a
time when radiation contamination of the atoll was still an issue.
Between the mid 1950's until 1997, Brookhaven National Laboratory
(BNL) was contracted by the DOE (for $1.1 million annually) to provide
medical care to those exposed to the Bravo detonation and to the
comparison group. BNL healthcare consisted of monitoring and treating
the designated population for radiogenic illnesses on a biannual basis.
From 1998 to 2004, the RMI and the DOE jointly developed a more
comprehensive health care program for the USNWTP affected population.
Clinics on Kwajalein and Majuro were established to deliver year round
healthcare and adjunct programs were instituted to develop the health
capacity and infrastructure of the RMI.
In 2005, the DOE redirected the medical program towards focusing
largely on cancer care. Capacity building with the RMI Ministry of
Health and more comprehensive health care elements for the affected
population are now being eliminated.
The funding for the program participants is adequate; however
utilization of health services is limited by the design of the program.
Funding for this program could be used more effectively in the RMI for
maintaining the primary care services, capacity building, as well as
the cancer care aspects of the program.
177 Health Care Program
The 177 Health Care Program provided in the 177 Agreement is
designed to provide primary, secondary and tertiary medical services to
the people of Enewetak, Bikini, Rongelap and Utrik islands who were
affected by the USNWTP. This includes most of the people enrolled in
the DOE medical program. The 177 Health Care Program's design was
developed through the U.S. Public Health Service (USPHS) in 1985. The
design of the program by the USPHS is laudable, having essential
elements of primary, secondary and tertiary medical care. However,
delivery of what was proposed by the USPHS has been impossible because
of limitations in funding and the RMI health care infrastructure.
The chart below illustrates the cost per person per month (PPPM) to
achieve basic levels of primary, secondary and tertiary health care in
the United States as compared to the 177 Health Care Program. These
figures, calculated by Mercy International, are based on 1997 Health
Care Dollars and do not reflect increased health care costs during the
past seven years.
------------------------------------------------------------------------
Program (PPPM)
------------------------------------------------------------------------
U.S.
Commercial Population....................................... $135
Medicare (Nebraska)......................................... $221
Medicare (New York)......................................... $767
Medicaid (Michigan)......................................... $120
HCFA........................................................ $293
RMI
Section 177................................................. \1\ $13.
60
------------------------------------------------------------------------
\1\ The PPPM for the RMI is calculated as follows: $2 million dollars
annually, divided by 12,259 patients, divided by 12 months equals
$13.60 PPPM.
The funding for the 177 program in 2005 has dropped from 2 million
annually to 1 million annually. In 2003, the program operated only on
$500,000. Each fiscal year the tertiary care budget for 177 patients is
consumed within the first three months.
rmi ability to address the health care consequences of the usnwtp
The ability for health services in the RMI to systematically
address the daily medical encounters is limited. The RMI health system,
although improving, struggles to provide adequate routine health care
for its citizens. The 177 program is severely under funded and
contributes modestly to the overall health care needs of the 177
participants. The DOE program is adequately funded for its patient base
and present mandates, however, the program design lacks comprehensive
care and lacks a proactive stance towards building the capacity of
health services.
Cancer
There were 530 excess cases of cancer generated by the USNWTP. Is
the present RMI Health Services able to care for the burden of cancer?
From October 1, 2004 through June 6, 2005 there were 26 Marshallese
patients with cancer who were presented to the medical referral
committee which determines if they would benefit from off-island
referral to a tertiary care center. Eleven of the 26 cases were denied
referral because the cancers were too far advanced.
Far advanced cases suggest that the health system is unable to
provide timely screening, early medical interventions and that the
patients are not aware of their risks and conditions There is no
mammography unit to detect breast cancer or colonoscope to detect colon
cancer in Ebeye, no operational CT scanner in the RMI, and no
operational dermatome in the lab to process cancer specimens. When
there is no medical oxygen in the hospital due to medical equipment
problems, major surgery, which many cancer patients require, is not an
option. And if the oxygen does arrive, there is no way to process the
specimen without a dermatome.
The fact that 26 cancer patients were referred suggests that
necessary medical care could not be provided in the RMI. Chemotherapy
is not given in the RMI because of deficiencies in qualified
laboratory, nursing and pharmacy staff.
Comprehensive cancer care requires local health systems to address
prevention, screening, biopsies. pathology services, surgical
expertise, intensive unit care, chemotherapy expertise, scanners, lab
support, palliative care and issues of survivorship and quality of
life. None of these systems are fully operational, and some are non-
existent. In 2003, only 9% of women who were in the age category to
receive cervical PAP smears (to screen for cervical cancer) actually
received a PAP smear. There is neither an oncologist nor a cancer
registry in the RMI.
The inability to handle difficult medical problems, such as cancer,
places a burden on surrounding areas that have cancer services. Many of
the folks who are not supported by the RMI health system as a referral
find their way to Hawaii or Guam, and enter the medical systems there.
These patients have no resources for the very expensive cancer care in
Hawaii and or Guam. Although all RMI medical debts have now been paid,
in the past there has been difficulty keeping up with payments because
of a lack of RMI funds. Such interactions place a strain on the good
will and medical / business relationships of the RMI, Hawaii and Guam.
building a health care system for cancer: (system 1)
The costs of a health system to care for cancer patients are
dependent on the answer to several questions which will determine the
system design.
1. What is standard of health care that we are trying to
provide? Are we building a U.S. level of health care system and
facility or designing a different type of system?
2. What standard of health care will be provided to cancer
patients with other illnesses (diabetes, heart disease, high
blood pressure, asthma, complications from treatment)?
3. Can all services/ components be sustained in the RMI or
will some services/components to be provided at another center
or site?
4. How many cancer patients will be treated?
5. Should the patients deserve to have most of the cancer
care in their home environments?
6. Over what period of time will the system need to be
intact?
7. Is the objective to build the capacity of the RMI to care
for cancer patients?
The components of a comprehensive cancer care system are well
known.
Data tracking including a cancer registry, medical records
Screening (mammography, colonosocopy , colposcopy,
ultrasound)
Diagnostic testing (CT scanning, x-ray, laboratory tests)
Treatment (surgical intervention, chemotherapy,
pharmaceuticals, radio-therapy)
Medical support (intensive care, nursing, transfusion,
antibiotic support, pain management)
Prosthesis support
Social services and health education services
Administrative support
Comprehensive cancer care requires access to high functioning
primary, secondary and tertiary health systems.
Costs
Using the following assumptions:
1. That a U.S. Standard of care be provided for the cancer
patients because the USNWTP caused the excess cancer rates.
2. That the system is capable of providing a U.S. Standard of
health care for other health problems in cancer patients,
especially at the time of cancer treatment.
3. That the system will provide comprehensive cancer
services, with some specialized needs being met in Hawaii or
other tertiary health care sites.
4. That there will be a minimum of 265 (.5 times 530) cancers
resulting from nuclear testing and some 2800 (.5 times
background 5600 cancers) over the next 30 years as extrapolated
from the 2004 NCI report. The 265 excess cancers will be
indistinguishable from cancers which have occurred as part of
the background cancer rate.
5. That an appropriate system of cancer care would deliver as
much care as possible in Majuro and Ebeye.
6. That capacity building is the best approach as it is one
of the objectives of the amended Compact and makes the most
economic and developmental sense.
The comprehensive cancer care system requires an intact primary
care system, screening system, cancer registry, mammography,
colonoscopy, medical laboratory, pharmacy, surgical capabilities,
intensive medical care capabilities, supplies, prosthesis,
pharmaceutical, CT scanner, x-ray unit, ultrasound, and the medical
expertise to staff and run the system. A sophisticated hospital is
needed with these capabilities. In the RMI adequate screening should be
available to the people of the outer islands. They should be brought to
the urban hospitals to get recommended cancer screening.
The facilities, infrastructure, and manpower required to provide
comprehensive cancer care, and provide the medical care of cancer
patients who are suffering from other illnesses during times of cancer
care will be significant. The recurrent operations costs for such a 10
acute bed facility at the base cost of about $1300 / acute bed / day
would be about 5 million dollars annually. Kwajalein Military Hospital
(USAKA) has 11 acute beds and the annual budget is about $5.5 million.
The outer island screening and primary care as well as the
specialty referral services to Hawaii would be another 2.5 million
dollars in cost annually.
The total operations health care costs for a comprehensive cancer
system would be in the order of 8 million dollars annually. Capital
costs would be in the order of 6 million dollars. Notably, a separate
cancer facility and cancer system would have to be built to make this
system functional. Adding 8 million dollars to the existing RMI system
would dilute the effort and not allow the comprehensive cancer system
to reach a U.S. standard of health care.
177 health care system (system 2)
The 177 Health Care program serves about 14,000 Marshallese. The
177 Program was designed to provide primary (prevention), secondary
(hospital), and tertiary (referral) care for the program participants.
It is unfortunate that the level of funding did not support the program
design to any reasonable standard of care. Assuming a U.S. Standard of
Health Care System to provide primary, secondary, and tertiary care
would cost about 50 million dollars ($300 per person per month X 12
months x 14,000 participants) annually.
The four atoll membership bears the largest proportion of cancers
that was generated from the USNWTP. Except for the DOE subset of
patients (200 people), the remaining 14,000 program participants have
no better access to adequate cancer screening, treatment, and services
than the rest of the RMI patients. The 177 members should have U.S.
Standard cancer health services.
The 177 Program in particular suffers from the difficulty of
quantifying social, cultural and mental health impacts. Caring for the
participants with a 50 million dollar primary, secondary, and tertiary
health care system would address cancer and the other health
consequences for this population.
economy of scale (system 3)
Building a comprehensive cancer health system, providing a high
standard of health care for the 177 health care recipients, and
managing the DOE Medical Program can be done for an operations cost of
45 -50 million annually. The system and facilities that would be
constructed would have the absorptive capacity to provide a high level
of health care for the RMI, in general. The Common Wealth of the
Northern Marianas, which supports a similar population to the RMI
(55,000 people), has an annual operations budget of 45 million dollars
annually. Capital costs would be in the order of 50 million dollars.
Building such a system could provide comprehensive cancer care to
all Marshallese while meeting their comprehensive health care needs.
The NCI report suggests that the ionizing radiation which caused
cancers reached beyond the four atolls and even beyond the northern
atolls of the Marshall Islands. The lack of a defined boundary of who
was affected and who was not affected by nuclear fallout makes a
nation-wide system ideal.
A program which provides high standard comprehensive health care
for all Marshallese would address the health consequences of the USNWTP
in a cost effective, capacity building manner. This system would also
address the health care needs of over 300 Marshallese and other
indigenous Pacific islanders who participated in the clean-up of Bikini
and Enewetak atolls who live in the RMI. This subgroup has little
access to extra health care services.
conclusion
Developing a health care system to address the health consequences
of the USNWTP in the RMI is related to the illness(es) that must be
addressed, the burden of that illness, and the standard of care to be
applied for that illness.
The cancer burden has been clearly defined by the NCI. Other health
consequences are more difficult to quantify or have yet to show
themselves (genetic effects). All three systems of health above are
structured to address the cancer burden in the RMI. The 177 Program and
the economy of scale program, as defined above, are designed to address
the cancer burden and the other health effects of nuclear testing.
Senator Akaka. And now we will hear from Thomas Lum who is
a specialist in Asian Affairs, Congressional Research Service.
STATEMENT OF THOMAS LUM, SPECIALIST IN ASIAN AFFAIRS,
CONGRESSIONAL RESEARCH SERVICE
Mr. Lum. Senator Akaka and members of the committee, thank
you for the opportunity to represent the Congressional Research
Service at today's hearing.
In March of this year, a team of CRS analysts examined the
Marshall Islands changed circumstances petition in a report for
Congress. Today I will summarize some of the main issues and
findings discussed in our report. This statement and the CRS
report are submitted for the record.*
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* The report has been retained in committee files.
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According to some estimates, the United States has spent
between $520 and $550 million in the Republic of the Marshall
Islands nuclear test-related compensation. Some of these moneys
remain in trust funds in the nuclear test-affected atolls.
So far, the largest effort to settle claims was provided by
Section 177 of the Compact of Free Association enacted in 1986
which authorized the nuclear claims fund of $150 million for
nuclear test- related compensation.
The fund was expected to earn $270 million in investment
returns while the original $150 million would remain as
principal. However, by 2004, the fund was nearly depleted. The
RMI attributed this to unanticipated costs and to lower than
expected returns on investments.
In 2003, the ``Compact of Free Association Amendments Act''
authorized continued Marshall Islands' eligibility for many
U.S. Federal programs and services, including some health,
food, and agricultural programs for the atolls affected by the
nuclear weapons tests. However, negotiations to renew the
Compact did not include consideration of the changed
circumstances petition.
The Compact of Free Association established the Nuclear
Claims Tribunal or NCT to adjudicate personal injury and
property damages claims. The Compact allocated approximately
$45 million out of the nuclear claims fund for payment of
personal injury awards.
The tribunal's compensation system is based upon the ``U.S.
Radiation Exposure Compensation Act,'' also know as RECA, which
provides payments to U.S. individuals who lived downwind from
the Nevada nuclear test site.
As with RECA, the Nuclear Claims Tribunal does not require
the claimant to prove a causal link between his or her disease
and exposure to radiation. The claimant must simply provide
proof of residency in the Marshall Islands during the years of
nuclear testing and have one of the listed compensable diseases
or presumed illnesses.
As of June 2005, the NCT had granted personal injury awards
totaling $87 million and paid out $71 million to 1,941
individuals. Some analysts have suggested that the eligibility
pool, amounts of awards, and lists of conditions compensated
exceed those provided by RECA.
In April 2005, the National Research Council released a
report on the RECA program in which they recommended that
individual claims be based on the probability of causation.
In September 2004, the National Cancer Institute estimated
that nuclear testing raised the cancer rate in the Marshall
Islands by about 9 percent above the norm or baseline among the
population exposed to testing. This would translate to about
530 additional lifetime cancers above the baseline of 5,600.
The NCI report estimated that about half of the total
cancers projected were yet to develop or be diagnosed. Based on
the study, the RMI government projects an additional 100
million in future NCT personal injury awards.
The CRS report suggests that the NCT's application of the
methodology for calculating the loss of use of properties
resulted in claims that may be overstated. One possible factor,
for example, was the use of average rents per acre that largely
reflected government influenced prices rather than competitive
free market ones.
RMI representatives respond that real estate appraisals
adopted by the Nuclear Claims Tribunal reflected overall market
activity in the Marshall Islands and that government rental
rates were widely accepted in real estate transactions.
The RMI government argues that the 15 milligram annual dose
limit, which is used to estimate the degree and extent of
cleanup, is the same level of public protection that is
provided in the United States and that it therefore should be
applied to the cleanup of the Marshall Islands.
However, as explained in the CRS report, the 15 milligram
standard is not an enforceable Federal regulation. Rather, the
15 milligram limit is an EPA recommended guideline that is
applied on a case-by-case basis depending on the feasibility of
attaining it at a particular site.
Consequently, it is uncertain whether the 15 milligram
standard would be applied if the Marshall Islands were located
in the United States.
The CRS report also discussed the debate regarding the
extent of contamination. In 1989, the RMI government
commissioned a nationwide radiological survey, a comprehensive
effort to determine levels of radioactivity in the soil on
islands potentially affected by fallout.
Completed in 1994, the survey's results suggested that
unsafe levels of radiation existed primarily in four northern
atolls. These atolls would require limited remediation and/or
the dietary restrictions.
The RMI disagreed with these findings and claimed that the
extent of contamination and health risks were understated.
Finally, the CRS report identifies four broad policy
options for Congress; one, grant or reject the changed
circumstances petition's request in whole or in part on the
basis of changed circumstances; two, provide assistance through
ex gratia congressional appropriations measures; three, enact
legislation that would provide for a full and final settlement
of claims; and, four, through an amendment to the Compact of
Free Association, turn jurisdiction over the petition's claims
to the U.S. Federal Courts.
My colleagues and I can respond to specific questions
related to our report. Thank you.
Senator Akaka. Thank you.
[The prepared statement of Mr. Lum follows:]
Prepared Statement of Thomas Lum, Specialist in Asian Affairs,
Congressional Research Service
Mr. Chairman, Members of the Committee, thank you for the
opportunity to represent the Congressional Research Service (CRS) at
today's hearing. In March of this year, a team of CRS analysts from
four divisions examined the Marshall Islands' Changed Circumstances
Petition in a report for Congress. Today I will summarize some of the
main issues and findings discussed in our report. This statement and
the CRS report are submitted for the record.
According to various estimates, the United States has spent between
$520 million and $550 million in the Republic of the Marshall Islands
(RMI) on nuclear test-related compensation. This funding has been used
for health care, environmental monitoring, cleanup of contaminated
sites, and resettlement efforts. Some of these monies remain in trust
funds of the nuclear test-affected atolls. So far, the largest effort
to settle claims was provided by Section 177 of the Compact of Free
Association and the Agreement for the Implementation of Section 177.
The Compact, authorized by the Compact of Free Association Act (P.L.
99-239) and enacted in 1986, established the Marshall Islands as a
``freely associated state'' with special economic and security ties to
the United States.
Section 177 authorized $150 million for nuclear test-related
compensation. The agreement, as stated, constituted ``the full
settlement of all claims, past, present and future,'' including claims
by inhabitants of Bikini, Enewetak, and other atolls pending in the
United States Court of Claims. The investment returns on the Fund were
expected to generate $270 million between 1986 and 2001 while the
original $150 million would remain as principal. However, in 2005, the
Fund is nearly depleted, which the RMI attributes to unanticipated
costs and lower than expected returns on investments. Section 177
stipulated that additional compensation may be requested by the RMI if
the following conditions were met: loss or damages to persons or
property arose or were discovered that could not reasonably have been
identified as of the effective date of the Compact; and such injuries
rendered the provisions of the Compact ``manifestly inadequate.'' In
September 2000, the Marshall Islands government submitted to the United
States Congress a Changed Circumstances Petition pursuant to the
Compact. In 2003, the Compact of Free Association Amendments Act (P.L.
108- 188) authorized continued Marshall Islands eligibility for many
U.S. federal programs and services. These included some health, food,
and agricultural programs for nuclear test-affected atolls. However,
negotiations to renew the Compact and to extend economic and other
assistance did not include consideration of the Changed Circumstances
Petition.
The Petition justifies its claims of ``changed circumstances''
largely upon ``new and additional" information since the Compact's
enactment. The RMI refers to more stringent U.S. radiation protection
standards, issued in 1997 and 1999, and to Department of Energy
records, declassified in the early 1990s, that indicate a wider extent
of radioactive fallout than previously known or disclosed. The RMI
contends that this new information warrants further cleanup of
contaminated soil as well as cleanup over a wider area. Furthermore,
Marshall Islands representatives assert that the Nuclear Claims Fund
constituted a provisional, ``political settlement'' rather than a final
determination based upon a conclusive, scientific assessment of costs.
The Petition originally requested a total of $3.3 billion
including:
unpaid Nuclear Claims Tribunal (NCT) personal injury awards
of $15.7 million
unpaid NCT property damages awards to Enewetak Atoll and
Bikini Atoll totaling $949 million
$50 million for medical services infrastructure
$45 million annually for 50 years for a health care program
for those exposed to radiation
In November 2004, the U.S. Department of State released a report
compiled by an interagency group evaluating the legal and scientific
bases of the Petition.\1\ The report concluded that ``the Marshall
Islands' request does not qualify as changed circumstances' within the
meaning of the Compact.'' The report also disputed some of the main
scientific claims of the Petition regarding the geographical extent of
radioactive fallout, radiation dose estimates, and the applicability of
U.S. standards to conditions in the RMI.
---------------------------------------------------------------------------
\1\ U.S. Department of State, Report Evaluating the Request of the
Government of the Republic of the Marshall Islands Presented to the
Congress of the United States of America, November 2004.
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The CRS report on the Changed Circumstances Petition analyzes
issues related to the Petition's requests.\2\ The report examines
nuclear test compensation programs in the United States, the health
effects of ionizing radiation in the Marshall Islands, the Petition's
property damages claims, and the possibility of further action in U.S.
courts. Today, I would like to touch briefly upon them. Another
question, which has yet to be analyzed in depth, is how to assess and
fund nuclear test-related health care needs in the Marshall Islands.
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\2\ CRS Report RL32811, Republic of the Marshall Islands Changed
Circumstances Petition to Congress.
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The Compact of Free Association established the Nuclear Claims
Tribunal (NCT) to adjudicate personal injury and property damages
claims. The Compact provided $45.75 million out of the $150 million
Nuclear Claims Fund for payment of personal injury awards. The
Tribunal's system of personal injury compensation is based upon the
U.S. Radiation Exposure Compensation Act, also known as RECA. RECA
provides payments to U.S. individuals who lived in a specified area
"downwind'' from the Nevada test site and who have contracted certain
cancers that are presumed to be the result of their exposure to
radioactive fallout. As with RECA, the Nuclear Claims Tribunal does not
require the claimant to prove a causal link between his or her disease
and exposure to radiation. The claimant must simply provide proof of
residency in the Marshall Islands during the years of nuclear testing
(1946 to 1958) and have one of the listed compensable diseases. As of
June 2005, the NCT had granted personal injury awards totaling $87.3
million and paid out $71.6 million to 1,941 individuals. Some analysts
have argued that the eligibility pool, amounts of awards, and list of
conditions compensated, exceed those provided by RECA.
In September 2004, the National Cancer Institute (NCI) estimated
that nuclear testing raised the cancer rate in the Marshall islands by
about 9% above the norm or baseline among the population exposed to the
testing. This would translate to about 530 additional lifetime cancers
above the baseline of 5,600. The NCI report estimated that about half
of the total cancers projected were yet to develop or be diagnosed, so
additional compensation claims were likely.\3\ Based upon this study,
the RMI government projects an additional $100 million in future NCT
awards.
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\3\ U.S. Dept. of Health and Human Services, National Institutes of
Health, National Cancer Institute, Estimation of the Baseline Number of
Cancers Among Marshallese and the Number of Cancers Attributable to
Exposure to Fallout from Nuclear Weapons Testing Conducted in the
Marshall Islands, September 2004.
---------------------------------------------------------------------------
On April 28, 2005, the National Research Council (NRC) released a
report on the RECA program, in which it recommended against adding any
additional diseases to the list of cancers for which downwinders and
on-site participants may be compensated. The NRC also recommended that
individual claims be based on probability of causation. This method
employs a formula to determine whether an individual's estimated
radiation exposure is likely the cause of his or her specific cancer.
The NRC report may provide alternative models for the Nuclear Claims
Tribunal's system of compensation.\4\
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\4\ National Research Council, Assessment of the Scientific
Information for the Radiation Screening and Education Program
(Washington, DC: National Academy Press, 2005).
---------------------------------------------------------------------------
The CRS report states that the methodology used by the Nuclear
Claims Tribunal to estimate the value of the lost use of claimants'
properties is viewed as reasonable and appropriate. However, the report
suggests that the application of the methodology resulted in loss-of-
use calculations that may be overstated. One possible factor, for
example, was the use of average rents per acre that largely reflected
inflated, government-influenced prices rather than competitive, free-
market ones. RMI experts counter that real estate appraisals adopted by
the Nuclear Claims Tribunal were representative of overall market
activity in the Marshall Islands and that government rental rates were
widely accepted in real estate transactions.
The RMI government argues that the 15 millirem annual dose limit,
which it used to estimate the degree and extent of cleanup, is the same
level of public protection that is provided in the United States and
that it therefore should be applied to the cleanup of the Marshall
Islands. However, as explained in the CRS report, the 15 millirem
standard is not an enforceable federal regulation. Rather, the 15
millirem limit is an EPA recommended guideline that is applied on a
case-by-case basis, depending on the feasibility of attaining it at a
particular site. Consequently, it is uncertain whether the 15 millirem
standard would be applied if the Marshall Islands were located in the
United States.
The CRS report also discusses the debate regarding the extent of
contamination. In 1989, the RMI government commissioned the Nationwide
Radiological Survey, a comprehensive effort to determine levels of
radioactivity in the soil on islands potentially affected by fallout.
The study was funded by the U.S. government and completed in 1994. The
Survey results suggested that unsafe levels of radiation existed
primarily in the four northern atolls of Bikini, Enewetak, Rongelap,
and, to a lesser extent, Rongerik. These atolls would require limited
remediation and/or dietary restrictions.\5\ The RMI disagreed with
these findings and claimed that the extent of contamination and health
risks were understated.
---------------------------------------------------------------------------
\5\ Steven L. Simon and James C. Graham, ``Findings of the
Nationwide Radiological Study,'' 1994.3
---------------------------------------------------------------------------
The CRS report identifies four broad policy options in considering
whether to provide additional financial compensation to the Marshall
Islands. These options include:
Grant or reject the Changed Circumstances Petition's
requests, in whole or in part, on the basis of changed
circumstances;
Provide assistance through ex gratia congressional
appropriations measures (primarily through the Department of
the Interior);
Enact legislation that would provide for a ``full and final
settlement'' of claims;
Through an amendment to the Compact of Free Association,
turn jurisdiction over the Petition's claims to the U.S.
federal courts.
My colleagues and I can respond to specific questions related to
our report. Thank you.
Senator Akaka. Now I will call upon Dr. Steven Simon.
STATEMENT OF STEVEN L. SIMON, Ph.D., SCIENTIST
Dr. Simon. Thank you, Mr. Chairman, and honored members of
this committee for your invitation to speak today. I am Steven
Simon. I am presently employed by the National Cancer
Institute, National Institutes of Health.
But I am here today solely in a personal capacity. I am
only representing myself. My statement has not been prepared or
influenced by my present employer nor has it been reviewed at
the NIH. Hence, it does not represent their opinion.
I would first like to present my credentials today relevant
to this hearing, Mr. Chairman, not to impress you, but because
I am the only independent scientist here without an
institutional reference.
In addition to a Ph.D. in radiological health sciences, I
have approximately 28 years in the field of radiation
epidemiology, radiation treatment of cancer, and radiation
protection.
I was employed by the government of the Marshall Islands
from early 1990 through mid 1995 as the sole radiation
scientist in residence. In that position, I directed the
Marshall Islands Nationwide Radiological Study funded under
Section 177 of the Compact of Free Association from its
inception through its completion. And I designed and oversaw
the construction of the first permanently based radiological
measurements laboratory in the Marshall Islands.
During that time, I was a member of the three-man
scientific management team for the Rongelap resettlement
project and was director of the Nationwide Thyroid Disease
Study.
I have an extensive publication resume and I have authored
18 peer-reviewed papers, 19 reports or book chapters and one
book, all on issues related to radiation in the Marshall
Islands.
The primary purpose of my testimony is to provide this
committee with accurate and unbiased scientific and technical
information related to the effects of nuclear testing. My
purpose does not include taking a side in the discussion for
the need or for the justification for additional compensation.
It is my goal to provide information so that neither incorrect
nor incomplete information is used to make such decisions.
There are three subject areas that I primarily want to
convey information to this committee about. These are the
Nationwide Radiological Study, the Nationwide Thyroid Disease
Study, and to correct various testimonies provided by others at
the House hearing in May 2005 that I personally thought were
lacking in accuracy, completeness, or transparency.
The findings of the Nationwide Radiology Study are
relevant, I believe, to a discussion about nuclear testing in
the Marshall Islands. Though they are not the only data
available on the levels of contamination, they are the most
complete in terms of geographic coverage.
As you might imagine, I am gratified to see some
recognition of this data, though I personally find it
disconcerting that still more than 10 years after the study was
completed, the RMI government has not publicly acknowledged the
study or its findings.
I have to say I find that to be disingenuous considering
that government sponsored the research and the findings
subsequently met all levels of peer review.
The primary goal of the Nationwide Radiology Study was to
document the geographic distribution of residual radioactivity
from nuclear testing and to assess the present and future
levels of that activity. The study was designed to be
scientific, objective, and was designed and conducted without
political purpose.
The Nationwide Radiological Study was extremely successful
in documenting the radiological conditions over the entire
nation. In addition to being published in the scientific peer-
reviewed literature, the data were judged to be valid by three
international expert panels, including one appointed by the RMI
government.
Any claim today that there might still be unidentified hot
spots unfound by that study is unlikely to be true due to
comprehensive sampling. I believe that if one could find a
location with higher radiation levels than was recorded by the
Nationwide Radiological Study, it would be of inconsequentially
small size.
One of our areas of emphasis was measurement of cesium 137
in the terrestrial environment. That means soil and locally
grown foods. Cesium has been measured worldwide as a marker of
fallout contamination. We found it to be detectable at all
atolls. But this is hardly surprising since it is detectable
virtually everywhere on the planet earth as a consequence of
nuclear testing conducted worldwide, even outside this very
building.
We compared the levels of cesium at each atoll to that from
global fallout in the mid Pacific to discern those atolls where
there was evidence that locally produced fallout was in excess
of the background.
At this point, I would like to now refer to figure 1 of my
statement. I see that there is a poster of this figure which
presents our measurements of cesium in soil ordered from left
to right by increasing latitude.
The light gray horizontal band represents the amount of
cesium, at least as of 1994, deposited in the mid Pacific from
global fallout, and it is provided as a basis for comparison.
The Nationwide Radiological Study found that atolls located
south of 9 degrees north latitude, that is south of Kwajalein,
had nearly equal levels of residual radioactivity and that it
was at a level indistinguishable from that from global fallout.
In the study's summary report to the RMI government, I
reported that there were ten atolls for which the study could
not conclusively determine whether any local fallout had been
received there. I later learned from a public statement from
the claims tribunal that they interpreted that to be a failing
of the study as a result of inadequate funding.
That is not the interpretation that was intended nor was it
a failing. The intended interpretation was the following. If
there is any locally produced fallout contamination at those
locations today, it is very, very small, so small, in fact,
that it is indistinguishable from global fallout that
originated from tests conducted worldwide.
At locations north of 9 degrees north latitude, that is
north of Kwajalein atoll, we observed an increase in the level
of cesium at each atoll and it reached its greatest value on
the northern end of Rongelap, on Bikini atoll, and the north
end of Enewetak atoll.
Our measurements did not appreciably differ from those of
Department of Energy, at least where the two studies
overlapped. Hence, I have to say there was not a great deal of
new information obtained for the northern atolls except we did
validate DOE measurements and we obtained much more detail
about Rongelap, the contamination there, that is, during the
course of the Rongelap resettlement project.
These findings have implications for future radiation
protection requirements. But due to time constraints, I refer
you here to my written statement.
I would like to briefly turn quickly to the Nationwide
Thyroid Disease Study that I conducted in collaboration with
medical specialists from England and Japan. Part of the
motivation for that study stems from the well-known sensitivity
of the thyroid gland of young children to ionizing radiation.
In addition to providing a public health service by free
examinations and followup medical care, we set out to examine
the hypothesis of Hamilton, et al. concerning the prevalence of
thyroid nodules among those born before the infamous 1954 BRAVO
test.
His finding was that the prevalence of nodules decreased
with increasing distance from Bikini. His interpretation was
that exposure to radio-iodines in fallout was likely much
broader than believed prior to his publication of 1987.
Our study examined about twice as many people as did
Hamilton and it used high-resolution ultrasound whereas the
Hamilton study only used palpation, which is a feeling of the
neck with the fingers.
Of relevance here is that the observations of the
Nationwide Thyroid Disease Study did not confirm the hypothesis
of Hamilton, that is we did not find a significant decrease in
nodule prevalence with increasing distance.
I would like to note here that because our study did not
confirm Hamilton's study, it did not disprove it. However,
replication of scientific findings is considered part of the
gold standard in scientific research. And our study that was
larger and used more sensitive techniques to detect nodules
could not replicate his findings.
Now, following the main body of my statement, I provide an
appendix to you that addresses seven specific areas in which
others provided testimony at the House hearing. As I explained,
some testimony in my opinion appeared to be either incorrect or
incomplete.
The purpose of that appendix is to provide additional
information to you that should have been provided in that
testimony but was not.
Mr. Chairman, this concludes my statement. I hope you found
this information to be useful. And I would be pleased to answer
your questions.
Senator Akaka. Thank you. Thank you very much, Dr. Simon.
[The prepared statement of Dr. Simon follows:]
Prepared Statement of Steven L. Simon, Ph.D., Scientist
Thank you, Mr. Domenici, for your invitation to appear today before
the Senate Committee on Energy and Natural Resources. I am Steven L.
Simon, PhD. I am employed by the National Cancer Institute, National
Institutes of Health (NIH), but I am here today solely in a personal
capacity. I am only representing myself. My statement today has not
been prepared or influenced by my present employer, nor has it been
reviewed at the NIH. Hence, this statement does not necessarily
represent the opinion of the NIH. I request that my statement be
entered into the record.
I would first like to present my credentials relevant to this
hearing. In addition to a B.S. and M.S. degree in Physics and
Radiological Physics, respectively, and a Ph.D. in Radiological Health
Sciences, I have approximately 28 years experience in the field of
radiation epidemiology, radiation treatment of cancer, and radiation
protection. My primary fields of expertise are radiation measurement
and radiation dosimetry. I was employed by the Government of the
Marshall Islands from early 1990 through mid-1995 as the sole radiation
scientist in residence in the RMI. In that position, I directed the
Marshall Islands Nationwide Radiological Study from its inception
through its completion and designed and oversaw the construction of the
first permanently based radiological measurements laboratory in the
Marshall Islands. During that time, I was also a member of the 3-person
scientific management team for the U.S.-funded Rongelap Resettlement
Project and was director of the Nationwide Thyroid Disease Study. Since
leaving the RMI, I directed the radiological survey of Johnston Island,
another U.S. Pacific nuclear test site. I was a member of the
International Atomic Energy Agency (IAEA) survey teams of the French
nuclear test sites in Algeria and in French Polynesia. I was the lead
dosimetrist in the well known epidemiologic studies of downwinders
conducted by the University of Utah and am presently the lead
dosimetrist in the NCI's current study of thyroid disease in areas
adjacent to the former Soviet nuclear test site in Kazakhstan. I
formerly have had research and academic faculty appointments at the
University of New Mexico, University of Utah, and University of North
Carolina at Chapel Hill. Presently, I hold adjunct faculty appointments
at Colorado State University and Baylor College of Medicine. I am an
elected member of the National Council on Radiation Protection and
Measurements. I am a member of the editorial board of Health Physics,
the most prestigious journal in this country in the field of radiation
protection and have been on that editorial board for the last 13 years.
I have an extensive publication resume and have authored 18 peer-
reviewed papers, 19 reports or book chapters and 1 book, all on issues
related to radiation in the Marshall Islands.
The primary purpose of my testimony is to provide this committee
with accurate and unbiased scientific and technical information related
to the effects of nuclear testing in the Marshall Islands. My purpose
does not include taking a side in the discussion for the need or
justification for additional compensation. In my view, that is a
political decision that should consider sound scientific data. It is my
goal to provide information so that neither incorrect nor incomplete
information is used to make such decisions.
There are three subject areas that I primarily want to convey
information to this committee about. These are: (1) The Nationwide
Radiological Study that I directed, (2) Nationwide Thyroid Disease
Study that I also directed, and (3) to correct various testimonies
provided by others at the House hearing in May 2005 that I thought were
lacking in accuracy, completeness, or transparency.
The findings of the Nationwide Radiological Study (NWRS) are
relevant to this discussion about the effects of nuclear testing in the
Marshall Islands. Though they are not the only data available on levels
of contamination, they are the most complete in terms of geographic
coverage. Other data and information collected for many years under
sponsorship of the Dept. of Energy is also highly valuable and
credible. See the website of the Dept. of Energy Marshall Islands
Program [1] for a wealth of data and publications. In particular, the
Dept. of Energy sponsored a radiological survey of the northern
Marshall Islands in 1978 [2] that included an aerial survey [3] as well
as ground sampling. The measurements of Cs-137 (cesium-137) in the
environment from the DOE sponsored survey agreed well with measurements
made by the NWRS many years later [4].
Despite my gratification at seeing the recognition of the NWRS
data, I find it disconcerting that more than 10 years after the study
was completed, the RMI Government has not publicly acknowledged it or
its findings. This curious situation stems back to events in early 1995
following the completion of the NWRS. After the study report was
delivered to the NCT, the Nitijela (parliament) of the Marshall Islands
invited me to present the findings to them while they were in session,
but upon arriving at their chambers on more than one occasion, they
never actually allowed me to make the presentation. Near to that time,
Mr. Bill Graham of the Nuclear Claims Tribunal provided in-person oral
testimony to the Nitijela to discredit the study. Whether that
testimony was a legitimate undertaking for an official of the NCT seems
relevant to this discussion, though it is of little personal concern to
me at this late date. Following Mr. Graham's testimony, the Nitijela
enacted a resolution to formally reject the findings of the NWRS.
Neither the Nuclear Claims Tribunal website nor the RMI Embassy website
acknowledges the study or has made its findings available.
Findings of publicly funded scientific investigations should be
published and the information made available. To that end, I went to
great effort to publish the findings of the NWRS without any salary or
financial support. In 1997, I was one of two appointed editors of a
special issue of the journal, Health Physics, completely devoted to the
radiological consequences in the Marshall Islands. The issue included
23 papers by 60 authors in addition to me. The Marshall Islands
Government, for reasons never apparent to me, tried to stop publication
of that issue. This issue has been available in its entirety on the
internet [5] since a short time after publication, courtesy of Health
Physics and the Department of Energy. In addition, I have made the
summary report of the NWRS available for the last 8 years online [6],
courtesy of the Baylor College of Medicine that maintains the website.
The primary goal of the NWRS was to document the geographic
distribution of residual radioactivity from the nuclear testing
conducted in Bikini and Enewetak and to assess the present and future
levels of residual radioactivity. The study was designed to be
scientific in nature, objective in its conclusions, and was designed
and conducted without any political purposes in mind. The NWRS was
extremely successful in documenting the radiological conditions over
the entire nation [7,8]. In addition to being published in the
scientific peer reviewed literature, the data was reviewed either in
its entirety or in parts, by three expert international groups,
including the RMI Government appointed Scientific Advisory Panel and
the IAEA panel to review the radiological situation of Bikini atoll.
There has not been a single scientifically based challenge to its
quantitative findings or to its degree of comprehensiveness. Despite
that there are over 1,000 islands of varying size in the RMI; there is
not a single island larger than a bare sandbar where at least one
radiation measurement was not made. Moreover, the largest and most
important islands in the 29 atolls were the sites of dozens of
radiation measurements. Any claim made, that there might still be
unidentified hotspots, is unlikely to be true due to comprehensive
sampling based on the relative land area of each atoll and the typical
variability of measurements, and use of systematic grid-based sampling
plans. I make the claim, that if one could find a location with higher
radiation level than was recorded by the NWRS, it would be of
inconsequentially small size.
One of our areas of emphasis was measurement of Cesium-137 (Cs-137)
in the terrestrial environment, e.g. soil, fruits, etc. Cs-137 has been
measured worldwide as a marker of fallout contamination since it is
only produced by nuclear fission. It has a 30-year half-life and modern
instruments conveniently detect it. The NWRS documented the average as
well as the range of contamination at all atolls of the Marshall
Islands, even those islands and atolls traditionally uninhabited. We
measured all other detectable gamma emitting radionuclides as well,
though, in general, they are of low concentration and of little
interest from a dosimetric point of view. In addition, we measured
fallout plutonium in soil.
Cs-137 was detectable at all atolls, but this is hardly surprising
since it is detectable virtually anywhere in the world as a consequence
of fallout from atmospheric nuclear tests conducted throughout the
world. We compared the measured levels of Cs-137 to the value expected
in the mid-Pacific region from the deposition of global fallout to
discern the atolls where locally produced fallout was in excess of the
background from global fallout. At this point, I would now like to
refer to Fig. 1 which presents the measurements of Cs-137 in soil from
the NWRS, ordered from left to right by the highest observed value at
each atoll. You will note that the vertical scale is logarithmic,
meaning that each major horizontal line is 10-fold greater than the
horizontal line below it. The light gray horizontal band represents the
range of values of Cs-137 (as of 1994) deposited in this region of the
Pacific from global fallout and is provided as a basis for comparison.
The NWRS study found that atolls located south of nine degrees
north latitude had nearly the same levels of residual fallout activity
and that it was at a level indistinguish-able from that expected from
global fallout. In the study's summary report to the RMI Government, I
reported that there were 10 atolls for which the study could not
conclusively determine whether they had received fallout from the tests
conducted in the Marshall Islands. I later learned from a public
statement by the now-deceased NCT Chairman, Oscar de Brum, that the NCT
interpreted that to be a failing of the study as a result of inadequate
funding. That is not the interpretation that was intended, nor was it a
failing of any kind. The intended interpretation was the following: if
there is any locally produced fallout contamination at those locations,
it is very, very small so small, in fact, that it is indistinguishable
from the global fallout that originated from nuclear testing worldwide.
Our inability to detect any excess fallout was a result of the
diminutive amount of local fallout deposited there. Here, it should be
noted that we did not use crude instruments that lacked sensitivity.
Our measurements relied on gamma spectrometry with liquid-nitrogen
cooled high-purity germanium detectors. These devices represent, even
today, the state-of-the-art gamma radiation detection instrument.
At locations north of 9 north latitude, we observed a moderately
smooth increase in the average and maximum level of Cs-137 measured and
reached a maximum value on the northern end of Rongelap Atoll, on
Bikini Island, and the north end of Enewetak Atoll. That there was a
uniform degree of contamination at latitudes south of 9 N, and that it
was about the same magnitude as that from global fallout may not have
been a surprise to some knowledgeable scientists, though in all
honesty, I did not have preconceived expectations since there were few
historical measurements on which to base an a priori opinion.
The observable increase in residual fallout activity above the
global background level, at latitudes between 9 and 10 north (i.e.,
at Erikub [uninhabited] and at Wotje) can be considered to be new
information, though one could have deduced it from the 1955 AEC report
by Breslin and Cassidy [9] that followed the CASTLE series of tests.
Atolls located north of Wotje (latitude of 9.5 N) were included in the
1978 Department of Energy (DOE)-sponsored aerial radiological survey.
Since the NWRS measurements did not appreciably differ from the DOE
measurements (except at the lowest contamination levels where the NWRS
had somewhat greater sensitivity [4]), there was not a great deal of
new information for the northern atolls obtained, except that the DOE
measurements were validated, and much more detail about the
contamination at Rongelap was obtained during the course of the
Rongelap Resettlement Project. But the fact that residual fallout
contamination increased north of Wotho to a maximum at Bikini, northern
Enewetak and northern Rongelap, had been documented in the DOE survey
of 1978.
Before moving on, I would like to comment on the relationship of
the NWRS data to estimating past radiation doses, as well as the value
of dose estimation to the changed circumstance petition. In my view,
the data obtained in the NWRS, supplemented with other information, can
be used for estimating past radiation doses with the understanding that
individual estimation is highly uncertain. It is also my view, however,
that estimates of radiation dose, new or old, while not totally
irrelevant, are not terribly pertinent to the discussion of changed
circumstances. My reasoning is two-fold. First, the compensation plan,
as developed by the NCT, has no criterion for admissibility based on
radiation dose. That makes dose, largely irrelevant from their
standpoint. Second, the radiation-related cancer burden for the nation
as a whole is likely to be relatively small compared to that from
naturally occurring cancers. Hence, a well-budgeted compensation plan
of the sort implemented by the NCT primarily needs to plan to pay for
naturally occurring cancers. The number of radiation related cases,
which can only be predicted from estimates of radiation dose, adds only
a modest increment to the naturally occurring cases [10].
Now let me briefly address what the measurements of the NWRS imply
in terms of future radiation protection requirements. First, it should
be realized that measurement of any amount of fallout radioactivity
should not be cause for alarm; everyone in the world lives with it
today. As a comparison, here in Washington, DC, the amount of Cs-137
per unit area of ground that is attributed to global nuclear testing,
is about five-times that in the Marshall Islands [11].
The data of the NWRS was translated into terms of annual whole-body
external effective dose and into annual external plus internal dose
assuming that Marshallese eat a diet of 75% locally grown food, a
scenario that is unlikely today for most Marshallese. The external dose
is received from gamma rays emitted from fallout that is still in the
soil, while the total dose calculation includes the dose from Cs-137
that would be ingested from fruits that can absorb Cs-137 from the soil
via plant roots.
According to the calculations of the NWRS in 1994, the external
annual effective dose might exceed 100 mrem per year at only a few
locations: on northern Enewetak Atoll, northern Rongelap Atoll, and on
some islands of Bikini Atoll. The value of 100 mrem per year is
accepted internationally as guidance for limiting exposure to the
public. It is about equal, for example, to the amount of radiation we
receive in the U.S. from natural terrestrial and cosmic ray radiation.
Those findings are not different than predicted from the 1978 DOE-
sponsored aerial survey of the Marshall Islands.
Including the dose contribution from ingestion of Cs-137 in locally
grown foods might lead to a total annual effective doses in 1994
(though would be 22% to 50% lower today due to radiological decay and
ecological elimination) in excess of 100 mrem per year on Rongerik,
Enjebi Island of Enewetak, northern Rongelap, and Bikini Island. These
findings do not differ from findings available from the 1978 DOE survey
except possibly in assuming a diet so highly reliant on local food.
These various findings are the basis of the statements by the NWRS and
its Scientific Advisory Panel that:
. . . the current levels of radioactive contamination of the
territory of the Marshall Islands pose no risk of adverse
health effects to the present generation. Similarly, on the
basis of current genetic knowledge, we judge the risk of
hereditary diseases to future generations of Marshallese to be
no greater than the background risk of such diseases
characteristic of any population.
Four atolls have been identified where exposure rates are
elevated to the extent that remedial actions are indicated for
some of the islands . . . [7].
Now, I would like to briefly turn to the Nationwide Thyroid Disease
Study (NWTDS) that I directed in collaboration with medical specialists
from England and Japan. Part of the motivation for that study stems
from the well-known sensitivity of the thyroid gland of young children
to ionizing radiation. Studies elsewhere indicate that exposure to
radioactive iodine released from nuclear tests might be responsible for
an increase in thyroid cancer. In addition to aiming to provide a
public health service by providing free examinations, we set out to
examine the hypothesis put forth by Hamilton et al. [12] concerning the
prevalence of thyroid nodules among 2273 inhabitants of 14 of the 24
inhabited atolls born before the 1954 BRAVO test. His finding was that
the prevalence of nodules decreased among that group with increasing
distance from Bikini. His interpretation was that exposure to
radioiodines was likely much broader than believed prior to his
publication of 1987. The NWTDS examined 4762 Marshallese born before
the end of nuclear testing in the Marshall Islands. Our examinations
used palpation (feeling of the neck), as did Hamilton, though we also
used high-resolution ultrasound that Hamilton did not. We found a
relatively high frequency of thyroid cancer and benign thyroid nodules
and we provided written medical evidence of each finding to each person
examined, the Majuro Hospital, and the Nuclear Claims Tribunal. The
high frequency of nodules and thyroid cancer is consistent with
observations by other investigators for island locations throughout the
Pacific where there is no evidence of exposure to radioactive iodine.
Of more relevance here, is that the observations of the NWTDS did not
confirm the hypothesis of Hamilton et al., i.e., we did not find a
significant decrease in nodule prevalence with increasing distance [13,
14]. Though our data suggested that the occurrence of thyroid cancer
might be related to our preliminary estimates of radiation dose, there
was no such evidence when the observations from Utrik atoll were
removed from the data set. I would like to note here that because our
study did not confirm Hamilton's hypothesis, it does not disprove it.
However, replication of scientific findings is considered part of the
gold standard in scientific research and our study that was larger and
used more sensitive techniques to detect nodules, did not replicate his
findings.
Following the main body of my statement, I provide an Appendix *
that addresses seven specific areas in which others provided testimony
at the House oversight hearing on March 19, 2005. As I explain in the
Appendix, some testimony provided to the House committee appeared to me
to be either incorrect and/or incomplete and hence, provided a biased
view. The purpose of the Appendix is to provide additional information
that should also have been provided by those testifying but was not.
---------------------------------------------------------------------------
* The appendix and figure 1 have been retained in committee files.
---------------------------------------------------------------------------
This concludes my statement. I hope you find this information to be
useful.
references
1. http://www.eh.doe.gov/health/marshall/env--docs.html
2. Robison W.L., Noshkin V.E., Conrado C.L., Eagle R.J., Brunk
J.L., Jokela T.A., Mount M.E., Phillips W.A., Stoker A.C., Stuart M.L.,
Wong K.M. The northern Marshall Islands radiological survey: data and
dose assessments. Health Physics 73(1):37-48, 1997.
3. Tipton W.J., Meibaum R.A. An aerial radiological photographic
survey of eleven atolls and two islands of the northern Marshall
Islands. Las Vegas, NV: EG&G, EG&G-1183-1758, 1981.
4. Simon, S.L, Graham J.C. A comparison of aerial and ground level
spectrometry measurements of 137Cs in the Marshall Islands.
Environmental Monitoring and Assessment--An International Journal
53(2): 363-377, 1998.
5. http://www.eh.doe.gov/health/marshall/marsh/journal/
6. http://radefx.bcm.tmc.edu/marshall--islands/
7. Simon SL, Graham JC. Findings of the Nationwide Radiological
Study: Summary Report, submitted to the Cabinet of the Government of
the Republic of the Marshall Islands. December 1994. Ministry of
Foreign Affairs, Government of the Republic of the Marshall Islands,
Majuro, Marshall Islands, 96960. 1994.
8. Simon SL, Graham, JC. Findings of the First Comprehensive
Radiological Monitoring Program of the Republic of the Marshall
Islands. Health Physics 73(1):66-85, 1997.
9. Breslin, AJ, Cassidy, ME. Radioactive debris from Operation
Castle, islands of the mid-Pacific. New York: New York Operations
Office, Health and Safety Laboratory, U.S. Atomic Energy Commission.
NYO-4623 (Del.), 1955.
10. Estimation of the Baseline Number of Cancers Among Marshallese
and the Number of Cancers Attributable to Exposure to Fallout from
Nuclear Weapons Testing Conducted in the Marshall Islands. National
Cancer Institute report to the Senate Committee on Energy and Natural
Resources, September 2004.
11. Beck HL, Bennett, BG. Historical overview of atmospheric
nuclear testing and estimates of fallout in the continental United
States. Health Physics. Health Physics 82(5):591-60885, 2002.
12. Hamilton TE, van Belle G, LoGerfo JP. Thyroid neoplasia in
Marshall Islanders exposed to nuclear fallout. JAMA 258:629-636, 1987.
13. Takahashi T, Trott, K, Fujimori K, Nakashima N, Ohtomo H,
Schoemaker MJ, Simon, SL. Thyroid Disease In The Marshall Islands,
Findings from 10 Years of Study. Tohoku University Press, Sendai,
Japan. 2001.
14. Gilbert E.S., Land C.E., Simon S.L. Health Effects from
Fallout. Health Phys 82(5): 727-735, 2002.
Senator Akaka. Foreign Minister Zackios, generally what is
it that you are asking the committee to do in response to your
nation's petition?
Mr. Zackios. Thank you, Mr. Chairman.
I think it is important that the committee works with the
Marshall Islands government and in particular with the U.S.
administration on issues relating to the nuclear testing
program.
I was saddened earlier today to hear the refusal of the
U.S. administration on your question to work together to find
resolution to the issues of the nuclear testing program.
But I request that your committee continue to seek the
assistance of the U.S. administration for us to work this very
important issue of the nuclear testing program.
In our negotiations with the U.S. Government, as I stated
in my testimony, there was a great refusal by the negotiators
to deal with the issue of the nuclear testing program.
Having said that, I hope that your committee--and I thank
you for the ex gratia method that your committee has been able
to provide in the past and currently in dealing with these
issues. But I truly hope that the committee can get the
administration and the Marshall Islands government working
together in addressing these issues.
I also think it is very important for your committee to
take oversight responsibility in our joint efforts to deal with
the issue of the nuclear testing program.
Thank you very much.
Senator Akaka. Well, I thank you Minister Zackios, for your
responses.
And to all of the witnesses, I want to thank you for your
testimonies. May I ask, Senator Murkowski, whether you have any
final questions or comments.
Senator Murkowski. Thank you. I have just one very quick
question that I would like to direct to Mr. Zackios.
You are here before this committee today basically to
petition your case. What is it specifically that you would like
this committee to do? What is it specifically that you would
like this Senate to do?
Mr. Zackios. Thank you, Senator Murkowski.
I have just tried to answer the question by Chairman Akaka.
But I think it is important for the committee to use its
authority to direct the administration to work with the
Marshall Islands government under the guidance of the committee
and without preconditions to deal with the issues that we have
identified in the changed circumstances petition in finding the
way forward with respect to resolutions of the nuclear testing
program.
Senator Murkowski. So you want everybody to sit down?
Mr. Zackios. I think that is the way forward.
Senator Murkowski. Okay. Thank you, Mr. Chairman.
Senator Akaka. I want to thank Senator Murkowski for your
comments and for your care of this region.
We do not have time to get to all of the questions that the
committee has, so we will submit those for the record. We look
forward to your responses so that the committee can consider
future action.
And I want to thank all of you witnesses for appearing here
and especially for those that traveled such a great distance to
talk with us. The committee will take your testimonies and deal
with that in our deliberations.
Again, thank you very much for coming. And the committee
stands adjourned.
[Whereupon, at 4:35 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Department of Energy,
Congressional and Intergovernmental Affairs,
Washington, DC, November 7, 2005.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: On July 19, 2005, a Department of Energy
official accompanied the State Department at this hearing to answer
questions regarding the effects of the U.S. nuclear testing program on
the Marshall Islands.
Enclosed are the answers to five questions that were submitted by
Senator Bingaman to complete the hearing record.
If we can be of further assistance, please have your staff contact
our Congressional Hearing Coordinator, Lillian Owen, at (202) 586-2031.
Sincerely,
Jill L. Sigal,
Assistant Secretary.
[Enclosures.]
Questions From Senator Bingaman
healthcare cost
Question 1. Under DOE's existing medical monitoring and treatment
program of the acutely exposed residents of Rongelap and Utrik, how
much is currently spent on healthcare (total and per patient), on
healthcare logistical support, and how do you expect costs to increase
or decrease in the future as this population ages?
Answer. In Fiscal Year 2004, the total cost of the two atoll
program was $2.2 million for 196 eligible persons; or an average cost
of $11,000 per patient. Of the $2.2 million, $1.3 million was spent on
logistical costs, including housing and per-diem in Honolulu for the
patient and a family member. As the population ages, although natural
mortality will reduce the number of patients, the average cost per
patient will increase.
healthcare assistance
Question 2. If Congress provides additional healthcare assistance
to the Marshall Islands, are you prepared to work with Congress and the
Marshall Islands in developing the most effective way to deliver that
assistance?
Answer. The Department of Energy (DOE) will continue to work as
part of the interagency working group (Department of State, the
Department of Health and Human Services, the Department of the
Interior), with Congress, and with the Marshall Islands to develop the
most effective way to deliver medical assistance. DOE has a long
history of working closely with other agencies to accomplish this goal
and working with the government of the Republic of the Marshall Islands
(RMI) and the two atoll governments to coordinate our program with the
RMI national health care program and the four atoll health care
program.
runit dome monitoring
Question 3. How often does DOE currently monitor the Runit dome; do
you have a regular schedule for such monitoring; and what is the cost
of such periodic monitoring?
Answer. While DOE is not assigned responsibility for monitoring
Runit dome, the DOE radiological monitoring program has conducted
periodic missions to Enewetak Atoll to collect and analyze water,
sediments, fish and biota from different locations around the lagoon,
including sites adjacent to the Runit dome. Since 2000, a DOE
contractor has conducted two site specific environmental missions to
Enewetak Atoll to survey both the terrestrial and marine environments
around Runit Island.
resettlement efforts
Question 4. Briefly describe what activities DOE has undertaken to
support resettlement at Enjebi, Bikini and Rongelap and what the
current status of those resettlement efforts are?
Answer. DOE provides individual radiation protection monitoring,
environmental characterization and dose assessment to establish
existing and potential future radiation related health risks to
selected populations of Bikini, Enewetakc, Rongelap and Utrok Atolls.
The core activity of resettlement support is providing whole body
counters and clean space for collecting bioassay samples from the
community members and temporary workers on the islands. The whole body
counting and plutonium bioassay program have been developed for the
Enewetak, Rongelap and Utrok communities.
potassium treatment
Question 5. Given the U.S. policy of reducing radiation to levels
that are ``as low as reasonably achievable (ALARA),'' are potassium
treatments of Utrok island reasonable? That is, what would the costs
and benefits be of such treatments?
Answer. ALARA is commonly used as a guiding principle in radiation
protection, particularly in the work place. Whole body counts of
Marshall Islanders indicate an already low level of exposure, less than
the 15 mrem per year criterion established by the Marshall Islands
Nuclear Claims Tribunal.
DOE has not conducted a cost estimate for spreading potassium
fertilizer on Utrok. The total cost for this soil treatment would
largely be driven by shipping charges and labor costs.
______
Responses of the Congressional Research Service to Questions From
Senator Bingaman
Question 1. On page 34 of its report on the Republic of the
Marshall Island (RMI)'s Changed Circumstances Petition, the
Administration suggests that the Tribunal overcompensated for personal
injuries due to factors such as: the inclusion of the entire 1958 RMI
population in the eligibility pool; inclusion of injuries not
recognized as radiogenic; and the inclusion of children of the 1958
population. Would you comment on whether these or other factors would
contribute to significantly greater compensation by the Tribunal as
compared to compensation under the U.S. Radiation Exposure Compensation
Act (RECA)?
Answer.\1\ The Nuclear Claims Tribunal has elected to provide more
generous compensation compared to that provided to downwinders (i.e.,
U.S. civilians who lived in specified counties downwind from the Nevada
Test Site during the 1950s and early 1960s) under RECA. Whereas RECA
pays the same amount ($50,000) for each of the 19 types of cancer for
which it provides compensation, the Tribunal awards varying and
typically larger amounts for a broader range of medical conditions (see
Table 1). For example, the Tribunal compensates individuals with non-
malignant thyroid conditions that are linked to ionizing radiation. In
expanding its list of compensable diseases beyond those covered under
RECA, the Tribunal also has chosen to include certain cancer types and
other medical conditions for which the evidence of a link with
radiation exposure is less well established. Moreover, the Tribunal has
made the decision to award the children of women present during the
testing 50% of the amounts paid to first-generation claimants. In its
most recent review of the biological effects of low-level ionizing
radiation, the National Research Council (NRC) noted that extensive
studies of atomic bomb survivors in Japan have shown no adverse effects
in their children that could be attributed to radiation exposure.
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\1\ Prepared by C. Stephen Redhead, Specialist in Life Sciences.
---------------------------------------------------------------------------
In comparing personal injury compensation under RECA and the
Nuclear Claims Tribunal, two additional points should be borne in mind.
First, Marshall Islanders inhabiting all but the southernmost atolls
were exposed to larger amounts of radiation than were the U.S.
civilians living downwind from the Nevada Test Site (NTS). The
inhabitants of Rongelap and Ailinginae, who were the most exposed,
received extremely high radiation doses for which there is little
experience in health risk assessment. Second, the Tribunal treats all
cases the same by including the entire 1958 RMI population in the
eligibility pool. In contrast, RECA is often criticized because it
arbitrarily limits compensation to individuals who lived in certain
specified counties in Arizona, Nevada, and Utah. The NRC recently
recommended establishing new scientific criteria for awarding
compensation under RECA, noting that fallout from the NTS above ground
tests covered a wide geographic area and that people living far beyond
the RECA-designated counties may have been exposed to higher levels of
radiation.
Table 1.--COMPARISON OF RADIATION COMPENSATION AMOUNTS
------------------------------------------------------------------------
RMI nuclear claims
Compensable disease RECA downwinders tribunal
------------------------------------------------------------------------
Leukemia (except chronic $50,000........... $125,000
lymphocytic leukemia).
Cancer of the lung.............. $50,000........... $37,500
Multiple myeloma................ $50,000........... $125,000
Lymphomas (except Hodgkin's $50,000........... $100,000
disease).
Cancer of the thyroid........... $50,000........... $75,000 (recurrent
$50,000 (non-
recurrent)
Cancer of the breast............ $50,000........... $100,000
(recurrent/
mastectomy)
$75,000
(nonrecurrent/
lumpectomy)
Cancer of the esophagus......... $50,000........... $125,000
Cancer of the stomach........... $50,000........... $125,000
Cancer of the pharynx........... $50,000........... $100,000
Cancer of the small intestine... $50,000........... $125,000
Cancer of the pancreas.......... $50,000........... $125,000
Cancer of the bile ducts........ $50,000........... $125,000
Cancer of the gall bladder...... $50,000........... $125,000
Cancer of the salivary gland.... $50,000........... $50,000
(malignant)
$37,500 (benign,
surgery)
$12,500 (benign,
no surgery)
Cancer of the urinary bladder... $50,000........... $75,000
Cancer of the brain............. $50,000........... $125,000
Cancer of the colon............. $50,000........... $75,000
Cancer of the ovary............. $50,000........... $125,000
Cancer of the liver (except if $50,000........... $125,000
cirrhosis or hepatitis B is
indicated).
Cancer of the central nervous not covered....... $125,000
system.
Cancer of the kidney............ not covered....... $75,000
Cancer of the rectum............ not covered....... $75,000
Cancer of the cecum............. not covered....... $75,000
Cancer of the bone.............. not covered....... $125,000
Tumors of the parathyroid gland. not covered....... $50,000
(malignant)
$37,500 (benign,
surgery)
$12,500 (benign,
no surgery)
Meningioma...................... not covered....... $100,000
Non-malignant thyroid nodular not covered....... $50,000 (total
disease. thyroidectomy)
$37,500 (partial
thyroidectomy)
$12,500 (no
thyroidectomy)
Unexplained hypothyroidism...... not covered....... $37,500
Severe growth retardation due to not covered....... $100,000
thyroid damage.
Autoimmune thyroiditis.......... not covered....... $12,500
Unexplained bone marrow failure. not covered....... $125,000
Radiation sickness diagnosed not covered....... $12,500
between June 30, 1946, and Aug.
18, 1958.
Beta bums diagnosed between June not covered....... $12,500
30, 1946, and Aug. 18, 1958.
Severe mental retardation not covered....... $100,000
(provided born between May and
Sept. 1954, and mother on
Rongelap or Utirik any time in
Mar. 1954.
Unexplained hyperparathryoidism. not covered....... $12,500
Non-melanoma skin cancer in not covered....... $37,500
individuals diagnosed with beta
burns (see above).
------------------------------------------------------------------------
Question 2. Page 4 of the CRS report \2\ states that the data,
assumptions and some statistical procedures applied by the Tribunal in
its calculations of loss-of-use ``result in past and future loss-of-use
estimates that appear to be overstated, which leads to possibly
excessive total damages claimed and awarded by the Tribunal.'' Can you
quantify or estimate a range of the Tribunal's overstatement of land
values?
---------------------------------------------------------------------------
\2\ CRS Report for Congress #RL32811, republic of the Marshall
Islands `Changed Circumstances Petition' to Congress.
---------------------------------------------------------------------------
Answer.\3\ In September 2000, the RMI submitted its CCP to the U.S.
Congress requesting $3,300 million in additional compensation for U.S.
nuclear testing on Enewetak and Bikini atolls during the 1940s and
1950s. In 2000 and 2001, the Nuclear Claims Tribunal (NCT), which
adjudicates damage claims filed by RMI citizens, awarded the claimants
that amount as judgment for personal injury and property damages. The
$3,300 million judgment includes unpaid property damages awards for the
atolls of Enewetak and Bikini totaling $949 million, of which $522
million is for the lost use of property ($278 million for Bikini and
$244 million for Enewetak) from the date of evacuation in the 1940s to
the date of return, which is projected to be in 2026 (for Enewetak) and
2027 (for Bikini). The remaining $427 million ($949 million less $522
million) is for other property damages: soil remediation and land
restoration, and hardship. \4\ The award for $522 million, which is
15.8% of the total judgment, is in addition to amounts already paid for
loss-of-use, which, through the year 2000, the NCT reports as about
$129 million for both atolls.
---------------------------------------------------------------------------
\3\ Prepared by Salvatore Lazzari, Specialist in Public Finance.
\4\ The CCP petition considers the personal hardships endured by
the affected RMI population--famine, near starvation, and death--part
of the property damages because they were caused by the severe
limitations of the resources available on alternate habitation atolls.
---------------------------------------------------------------------------
Based on the economic model that CRS \5\ developed, it appears that
the $522 million awarded by the NCT for loss-of-use of Enewetak and
Bikini but unpaid due to lack of funds, may be significantly
overstated.\6\ The primary source of this overstatement is that the
NCT's estimation methodology--the sample rent data, assumptions, and
statistical procedures (i.e., the sampling technique and the use of the
exponential regression model)--are likely to overestimate the per-acre
rental rate for land on Enewetak and Bikini, the key variable in the
loss-of-use calculation.
---------------------------------------------------------------------------
\5\ CRS Report for Congress #RL33029, Loss of Use Damages from U.S.
Nuclear Testing in the Marshall Islands: Technical Analysis of the
Nuclear Claims Tribunal's Methodology and Alternative Estimates, by
Salvatore Lazzari.
\6\ According to one estimate, since 1954, the United States has
provided $531 million to the Marshall Islands for nuclear test damages,
including compensation payments, environmental cleanup and restoration,
and resettlement programs. This total also includes an estimated $138
million in Department of Energy (DOE) radiological and health
monitoring in the four affected atolls and medical programs for the
residents of Rongelap and Utrik through 2002. The Compact of Free
Association established a Nuclear Claims Fund (NCF) of $150 million for
personal injury and property damages claims, health care, medical
surveillance and radiological monitoring, trust funds for the four
atolls, and quarterly distributions to the peoples of the four atolls
for hardships suffered. Beyond the broad guidelines under the Compact,
there are no specific rules on how the $150 million was to be spent. A
U.S. State Department report suggests that lack of funds is due to
excessive damage awards by, for example, awarding damages to citizens
throughout the RMI although the incidence of nuclear damages appear to
be more limited. See: U.S. Department of State, Report Evaluating the
Request of the Government of the Republic of the Marshall Islands
Presented to the Congress of the United States of America. November
2004.
---------------------------------------------------------------------------
The CRS \7\ calculation indicates that the appraisers' analysis
done for the NCT appears to have overestimated rents on Enewetak and
Bikini because Enewetak and Bikini are non-urban and land was used
largely for agricultural purposes. The analysts applied an exponential
regression model to rents established not in a competitive, free market
for agricultural land on Enewetak and Bikini, but rather to government-
established, and predominantly commercial, rents on the more urbanized,
and densely populated, Majuro and Kwajalein atolls. Most land in the
RMI is leased at ``the official government rate'' established by the
RMI cabinet. This rate, which was set by the RMI government at $2,500/
acre on January 1, 1979, and increased to $3,000/acre on October 1,
1989, serves as the benchmark for all lease transactions.
---------------------------------------------------------------------------
\7\ CRS Report for Congress #RL33029, op. cit.
---------------------------------------------------------------------------
The RMI government is not only the lessee in over 40% of the leases
and a major source of the demand for RMI land. In many of the sample
leases cited in the analysis, key government officials are also
effectively the landlords of much of the land, which means they are
also a supply source. The applicability of the resultant estimated
average rentals from Majuro and Kwajalein to the distant, more
agrarian, and less populated atolls of Enewetak and Bikini is open to
question. Applying an exponential regression model to noncomparable and
unrepresentative sample rent data leads to projected rents of $112,995/
acre for the year 2027, which is equivalent to land value of nearly
$1,774,024/acre.
The appraiser's methodology also assumes that more land is lost to
use, and for longer periods, than is actually the case (such as when
vaporized islands are treated as not having been vaporized). The NCT's
justification for making this assumption was twofold. First, it argued
that Enewetak and Bikini are ``part of the environmental whole'' and
should not be separated into islets. However, this assumption results
in an inconsistency: Enewetak and Bikini atolls are treated as
individual land masses for purposes of 1) calculating the annual rental
values on unvaporized portions of the atolls, 2) adjusting for
alternative habitation, and 3) adjusting for prior loss-of-use
compensation already paid by the U.S. government. But, Enewetak and
Bikini atolls are treated as collective land masses for the purposes of
excluding the vaporized portions of the atolls.
The second reason given for including the vaporized land portions
in the loss-of-use calculation is that there are problems in
determining the value of the vaporized and otherwise unusable portions
of Enewetak and Bikini. There should be no more problems in valuing
vaporized land than in valuing unvaporized land. Given the equivalency
between the value of land and the rentals earned on that land, an
appropriate methodology would consider the vaporized land areas as
being tantamount to a permanent taking of property, and estimate the
capitalized land value based on the projected streams of rentals, using
the estimated rentals from the time of pulverization. In this way, past
loss-of-use estimates would include the rental value of the vaporized
portions up to the time of pulverization, and thereafter based on the
capitalized value of these portions of the land as assets, with
interest. This is the same as calculating future rents foregone, but it
does so at the time of the destruction of the land, whether from
vaporization or any other cause.\8\ The NCT methodology also may
undervalue the rentals on alternative atoll habitation, and assumes
that recipients of rental proceeds, as consumers and savers, would have
saved 100% of the rental proceeds.
---------------------------------------------------------------------------
\8\ Another illustration is the case of Runit Island of Enewetak
atoll. This island has been indefinitely quarantined because it is used
to store nuclear waste, and should thus be compensated based on its
value at the time it was rendered unusable (plus interest).
---------------------------------------------------------------------------
The NCT's estimated average rents/acre used in the loss-of-use
calculation--$4,105/acre in 1996--also appears high when compared to
average agricultural rents in the United States: $17.50/acre in
Montana, $115/acre in Oregon, $210/acre in California, $ 88/acre in New
Mexico (1995), and $66.50/acre for the United States generally (1998).
Using an alternative economic methodology, and applying it to RMI's
national income and product accounts data, CRS has calculated
alternative estimates of agricultural land rents for Enewetak and
Bikini for the period 1982-1990, which are more consistent with the
underlying real (agricultural) use of the two atolls (and the RMI
economy), as well as with agricultural rents observed in the United
States and in regions in the Pacific.\9\ The methodology is founded on
a neoclassical microeconomic model that assumes that land values, and
therefore land rents, derive primarily from agricultural productivity,
but also from proximity to the major urban areas (Majuro).\10\ The
value of agricultural land, and equivalently, the rental price of that
land, reflects the value of the crops produced.
---------------------------------------------------------------------------
\9\ The NCT's estimated 1997 rental of $4,167/acre, discounted at
8% for 30 years, is equivalent to land valued at $46,911/acre, which is
nearly 2,000% greater than the $2,405/acre average price for Hawaiian
land, and 5,000% more than the $926/acre average price of farmland in
the continental United States generally. In 1997 the U.S. Fish and
Wildlife Service purchased 5,300 acres of land in the South Kona
district of the Hawaiian Islands at a total cost of $7.78 million, or
$1,468/acre, which translates into an estimated annual rent per acre of
$130. In June 2002, the average price of crop-land in Brazil was
reported at $355/acre. In April 2005, 100,725 acres of New Zealand
forest land went on sale for $42/acre in New Zealand dollars (which, at
the April 2005 exchange rate, converts to about $30/acre in U.S.
dollars).
\10\ Uncertainty would make many of the determining variables in
the model random, which, although it would add realism, it would also
add an unnecessary level of complication and, in any event, is beyond
the scope of this memorandum.
---------------------------------------------------------------------------
Based on this model, CRS \11\ estimates rents/acre at $115/acre for
the year 1982 rising to $258/acre for 1990, as compared with the NCT's
estimates of $1,902 for 1982 rising to $2,939 for 1990. Based on these
rental rates, CRS estimates gross loss-of-use rentals for 1982-1990
(before adjustments and interest) of $6.4 million, about 10% of the $64
million estimated by the NCT for the 1982-90 period. Note that these
are gross rentals, unadjusted for the value of alternative lands
provided as habitation, prior loss-of-use compensation already provided
by the U.S. Government, and interest. CRS estimates also exclude the
value of environmental amenities (as do the NCT estimates) of the non-
usable ecosystem.
---------------------------------------------------------------------------
\11\ CRS Report for Congress #RL33029, op. cit.
---------------------------------------------------------------------------
Thus, in conclusion, based on 1) an analysis of the NCT's loss-of-
use methodology, 2) empirical evidence of agricultural land rents in
the continental United States, Hawaii, and selected areas of the
Pacific, and 3) estimates based on an alternative economic
methodology--one consistent with the real underlying productivity of
agricultural lands on Enewetak and Bikini--the $522 million figure
appears to be overstated, perhaps significantly.
Question 3. In it's Petition for additional compensation from the
United States, the Marshall Islands contends that the safety standard
for cleanup has become more stringent since the 1986 settlement
agreement was concluded--that the safety standard has been reduced from
100 millirem to the 15 millirem now used at such U.S. sites as Hanford,
Washington and Rocky Flats, Colorado. Do you agree or disagree that
U.S. cleanup standards have changed?
Answer.\12\ U.S. standards for the cleanup of radioactive
contamination at certain types of sites have changed since 1986.
However, whether these standards would be applied to the cleanup of the
Marshall Islands if it were in the United States is uncertain. In 1986,
the Nuclear Regulatory Commission (NRC) proposed a standard to protect
the general public from annual exposure to radiation in excess of 100
millirems above the natural background level.\13\ The NRC promulgated
this standard in federal regulation in 1991.\14\ This standard applies
to the operation of facilities licensed by the NRC, such as civilian
nuclear power plants, but not to cleanup. In 1990, the Department of
Energy (DOE) adopted this same standard for the cleanup of radioactive
contamination at former nuclear weapons production and testing sites,
and civilian nuclear energy research sites, in the United States. DOE
adopted this standard in a department ``order.'' \15\ As such, it is an
internal administrative directive, rather than an enforceable federal
regulation.
---------------------------------------------------------------------------
\12\ Prepared by David Bearden, Analyst in Environmental Policy.
\13\ Federal Register 1092, January 9, 1986.
\14\ 56 Federal Register 23360, May 21, 1991, codified at 10 C.F.R.
20.1301.
\15\ Department of Energy. Office of Environment, Safety, and
Health. Radiation Protection of the Public and the Environment. DOE
Order 5400.5. February 8, 1990, amended January 7, 1993.
---------------------------------------------------------------------------
In 1997, the NRC promulgated a stricter standard of 25 millirems in
federal regulation that applies to the cleanup of radioactive
contamination at facilities that the NRC licenses for operation.\16\ It
does not apply to DOE nuclear weapons production and testing sites,
which are not under the jurisdiction of the NRC. Subsequently that same
year, the Environmental Protection Agency (EPA) issued non-binding
guidance for the cleanup of Superfund sites in the United States that
specifies a stricter standard of 15 millirems, differing from the NRC
as to how stringent an exposure standard should be to protect human
health.\17\ Unlike the NRC standard, the EPA standard is not an
enforceable federal regulation. However, EPA did promulgate an
enforceable drinking water standard of 4 millirems in 2000 that applies
to the cleanup of radioactivity in groundwater that is a current or
potential source of drinking water.\18\
---------------------------------------------------------------------------
\16\ 62 Federal Register 39088, July 21, 1997, codified at 10
C.F.R. 20.1402.
\17\ Environmental Protection Agency. Office of Emergency and
Remedial Response, and Office of Radiation and Indoor Air. Memorandum:
Establishment of Cleanup Levels for CERCLA Sites with Radioactive
Contamination. OSWER No. 9200.4-18. August 22, 1997. CERCLA is the
Comprehensive Environmental Response, Compensation, and Liability Act,
which authorized EPA to establish the Superfund program to respond to
releases of hazardous substances in the United States to protect human
health and the environment. CERCLA also authorized EPA to develop a
National Priorities List (NFL) of the nation's most hazardous sites,
commonly referred to as Superfund sites. Many former nuclear weapons
sites in the United States are listed on the NPL.
\18\ 65 Federal Register 76748, December 7, 2000, codified at 40
C.F.R. 141.66.
---------------------------------------------------------------------------
The Republic of the Marshall Islands argues that the same level of
public protection in the United States should be provided in the
Marshall Islands, and that EPA's more stringent standard of 15
millirems would be applied to the cleanup of contaminated soil in the
Marshall Islands if it were in the United States. However, this
standard is not an enforceable regulation applied uniformly at all
contaminated sites. Rather, it is a recommended guideline applied on a
case-by-case basis, depending on the economic and technological
feasibility of attaining it at a particular site. Therefore, it is
uncertain whether the 15-millirem standard would be applied to the
cleanup of the Marshall Islands if it were in the United States.
Although there is precedent for the application of EPA's standard at
Hanford and Rocky Flats, other nuclear weapons production and testing
sites in the United States typically are cleaned up according to DOE's
less stringent standard of 100 millirems.
Question 4. For contaminated areas in the U.S. or its territories,
how are decisions made about what areas are to be cleaned-up, for what
uses, to what standard, and what are some typical outcomes? For
example, are there situations in the U.S. similar to the situation on
Runit Island in Enewetak Atoll?
Answer.\19\ Two federal laws govern the cleanup of environmental
contamination in the United States: the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) \20\ and the
Resource Conservation and Recovery Act (RCRA).\21\ Neither statute
indicates the degree of cleanup that is required at individual sites
nor the specific actions that must be taken to remediate contamination.
Rather, CERCLA identifies numerous factors that must be considered in
the selection of remedial actions, including cost-effectiveness, and
requires that actions to protect human health and the environment
comply with any applicable, relevant, or appropriate requirements in
federal or state law.\22\ RCRA more generally specifies that
``corrective action'' must be taken to clean up contamination that is
needed to protect human health and the environment.\23\
---------------------------------------------------------------------------
\19\ Prepared by David Bearden, Analyst in Environmental Policy.
\20\ 42 U.S.C. 9601 et seq.
\21\ RCRA amended the Solid Waste Disposal Act. The amendments were
so comprehensive that the statute is commonly referred to as RCRA. As
amended, the Solid Waste Disposal Act is codified at 42 U.S.C. 6901 et
seq.
\22\ 42 U.S.C. 9621.
\23\ 42 U.S.C. 6924(v).
---------------------------------------------------------------------------
Under both statutes, decisions regarding which areas are in need of
environmental remediation, and to what standard the remediation will be
performed, are made on a site-specific basis. EPA and the state in
which the site is located are responsible for determining what cleanup
standards are used and for overseeing and approving specific remedial
actions. Cleanup decisions primarily depend on the risk of human
exposure to contamination that could occur as a result of how the land
is used and whether there is the potential for contamination to
migrate, through groundwater for example, and present a risk of human
exposure in other locations. Land uses involving a greater human
presence, such as residential purposes, generally require a greater
degree of cleanup than land uses involving less human presence, such as
industrial purposes.
At privately owned sites where contamination is present, the owner
of the land primarily determines how the land is used. In the case of
abandoned sites, EPA and the state consider the preferences of the
local community in deciding the reasonably anticipated land uses. At
publicly owned sites, the agency with jurisdiction over the
contaminated land determines the use. Federal agencies consider the
preferences of communities in deciding how contaminated land would be
used if it is slated for transfer out of federal ownership, such as
lands on a closed military base. Whether a site is privately or
publicly owned, land use maybe restricted if there are economic or
technological limitations to cleaning up the land to make it safe for
certain uses, or if certain types of waste may remain present on the
site as a result of containing, rather than removing, the waste to
prevent human exposure.
The outcomes of cleanup decisions vary among individual sites.
Complete removal of contamination to allow unrestricted use of the land
maybe economically and technologically feasible at some sites, whereas
containment of waste and restrictions on land use maybe the only
feasible option at others. Applicable cleanup standards also can vary
among sites due to differing circumstances. For example, federal
drinking water standards apply to the cleanup of contamination of
groundwater only if the groundwater is a current or potential source of
drinking water. A state standard also maybe used in the absence of a
federal standard, or a site-specific standard maybe developed if one
does not exist. The selection of specific remedial actions to attain an
applicable standard also may vary among individual sites due to
differing geophysical characteristics. For example, containment of
surface waste maybe deemed sufficiently protective in areas where
groundwater contamination is unlikely, because of the depth of the
aquifer, porosity of the soil, and annual rainfall. If there is
disagreement among the parties involved, reaching a consensus on the
degree and type of remediation may be difficult and result in delaying
the cleanup for a significant amount of time, especially if litigation
is involved.\24\
---------------------------------------------------------------------------
\24\ Authority for citizen suits against any person, including
federal agencies, for violation of cleanup requirements is provided in
CERCLA [42 U.S.C. 9659] and RCRA [42 U.S.C. 6972].
---------------------------------------------------------------------------
According to DOE, past cleanup decisions in the Marshall Islands
resulted in the removal of over 100,000 cubic yards of surface soil
from six islands of Enewetak Atoll in the late 1970s. The soil had been
contaminated from radioactive fallout from U.S. nuclear weapons tests.
There were no waste disposal facilities located in the Marshall Islands
to receive the contaminated soil. Filling a detonation crater on Runit
Island with the removed soil, and other radioactive debris, was deemed
a more economically feasible option than shipping it for disposal
elsewhere. This disposal method also avoided the potential risk of an
accidental release of contaminated material into the ocean during
transit. The crater was capped with a cement dome to contain the waste
and to prevent human intrusion. The contained soil covers a substantial
portion of the island, making that area unsuitable for other uses for
the foreseeable future.
Nuclear detonation craters also are being used as waste disposal
sites in the United States. DOE is disposing of certain types of
radioactive waste in craters formed as a result of underground nuclear
weapons tests at the Nevada Test Site. The waste disposed of in craters
at the Nevada Test Site is primarily a by-product of nuclear weapons
production, rather than soil contaminated from radioactive fallout from
weapons tests. Relatively little removal of soil is planned at the
Nevada Test Site. Rather, restrictions on the use of the majority of
the land will be used to prevent human exposure. Similar types of
radioactive wastes are also disposed of through shallow land burial and
containment with concrete caps at commercial waste disposal facilities
in the United States.\25\
---------------------------------------------------------------------------
\25\ Federal regulations for the land disposal of radioactive waste
are codified at 10 C.F.R. 61.
---------------------------------------------------------------------------
Although shallow land burial of certain types of radioactive waste
is permitted in the United States, it is not commonly practiced in
ocean settings similar to Runit Island. Residents of the Marshall
Islands have expressed concern about the potential aquatic impacts of
the radionuclides entombed in the crater on Runit, and the possibility
of the release of contaminated material into the surrounding ocean if
the concrete structure were to decay or be damaged. Some scientists
have estimated that the concrete dome should remain structurally sound
for approximately 300 years. However, the material contained in it will
continue to be radioactive for thousands of years because of the long
half-lives \26\ of the radionuclides. Consequently, the long-term
effectiveness of the concrete cap to safely contain the radioactive
material is uncertain. There are similar concerns about the burial of
some of the radioactive soil and debris at Johnston Atoll, located
several hundred miles southwest of Hawaii, where aborted missile
launches used in atomospheric nuclear tests by the United States in the
1960s resulted in radioactive contamination.\27\
---------------------------------------------------------------------------
\26\ A half-life is the time in which one half of the atoms of a
radioactive substance disintegrate into another nuclear form, or the
time to halve its radioactive strength.
\27\ The Defense Threat Reduction Agency of the Department of
Defense is responsible for administering the cleanup of radioactive
contamination on Johnston Atoll. Some of the contaminated soil and
debris has been removed off-site, but the remainder is slated for
disposal in an on-site capped landfill. The decision document is
available online at: [http://www.dtra.mil/about/media/historical--
documents/environmental/j a--decision.cfm#dec].
---------------------------------------------------------------------------
If the Marshall Islands were in the United States, the outcome of
decisions to perform further cleanup of contamination remaining in the
soil is uncertain, as the residential and agricultural land uses that
the government of the Marshall Islands has proposed are less
restrictive than at other sites in the United States with similar
contamination. As noted above, the use of the majority of the land at
the Nevada Test Site will be restricted to prevent human exposure,
resulting in relatively little removal of soil. Although the exposure
standard of 15 millirems that the Marshall Islands has selected to
govern further cleanup also has been applied at Hanford and Rocky
Flats, the land uses at these two latter sites are significantly more
restrictive than that proposed in the Marshall Islands.
Rocky Flats will serve as a National Wildlife Refuge with human
access limited to refuge personnel and visitors in certain areas.
Hanford is not planned for unrestricted use, but will continue its
function as a waste treatment and disposal facility into the
foreseeable future, even after cleanup is complete. Residential and
agricultural land uses in the Marshall Islands would necessitate a
significantly greater degree of cleanup than is planned at Hanford and
Rocky Flats to attain the same exposure standard. For example, the soil
concentration standards for cesium at Hanford, a radionuclide common to
both Hanford and the Marshall Islands, are significantly less stringent
than the standards proposed by the Marshall Islands, despite the
application of the same exposure standard. The soil concentration
standard at Hanford is 6 picocuries per gram (pCi/gm) at the ``100
Area'' located adjacent to the Columbia River where the potential
migration of contamination in groundwater is of particular concern, and
is 25 pCi/gm at the ``300 Area'' located further from the river and
intended for industrial use.\28\ The Marshall Islands has proposed
substantially stricter soil concentration standards ranging from 0.32
\29\ to 0.71 pCi/gm \30\ depending on whether only locally grown foods,
or a mix of locally grown and imported foods, are consumed. Due to the
more extensive remediation that would be required on a proportional
basis in the Marshall Islands, it is uncertain whether the same
decision would be made to apply the 15-millirem standard to the
Marshall Islands if it were in the United States.
---------------------------------------------------------------------------
\28\ Department of Energy, Remedial Design Report/Remedial Action
Work Plan for the 100 Area, June 2002, p. 2-41, and Remedial Design
Report/Remedial Action Work Plan for the 300 Area, April 2003, p. 2-20.
\29\ Sanford Cohen & Associates, Inc. (SCA), Statement before the
Nuclear Claims Tribunal Regarding the Potential Radiation Doses and
Health Risks to a Resettled Population of Enewetak Atoll and an
Evaluation of the Costs and Effectiveness of Alternative Strategies for
Reducing the Doses and Risks, March 23, 1999, p. ii. SCA recommended a
single soil concentration standard of 0.32 pCi/gm that it argued would
attain a 15-millirem exposure standard.
\30\ Enviropro, Inc., Cleanup Standards and Conceptual Remediation
Alternatives of Nuclear Waste at Enewetak Atoll the Republic of the
Marshall Islands, March 30, 1999, p. 1. Enviropro recommended two soil
concentration standards: 0.35 pCi/gm in areas where only locally grown
food is consumed, and 0.71 pCi/gm in areas where a mixed diet of
locally grown and imported foods are consumed, which it argued would
attain a 15-millirem exposure standard.
---------------------------------------------------------------------------
Responses of the Congressional Research Service to Questions From
Senator Salazar
Question 1. Who bears responsibility for deciding if the changed
circumstances have been met? Is that spelled out in the Compact (of
Free Association)?
Answer.\31\ Congress bears responsibility for deciding if ``changed
circumstances'' have been met. The Compact of Free Association states:
---------------------------------------------------------------------------
\31\ Prepared by Thomas Lum, Specialist in Asian Affairs.
If loss or damage to property and person of the citizens of
the Marshall Islands, resulting from the Nuclear Testing
Program, arises or is discovered after the effective date of
this Agreement, and such injuries were not and could not
reasonably have been identified as of the effective date of
this Agreement, and if such injuries render the provisions of
this Agreement manifestly inadequate, the Government of the
Marshall Islands may request that the Government of the United
States provide for such injuries by submitting such a request
to the Congress of the United States for its consideration.\32\
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\32\ (italics mine) The Agreement Between the Government of the
United States and the Government of the Marshall Islands for the
Implementation of Section 177 of the Compact of Free Association,
Article IX.
Some experts state that when the Compact was being negotiated and
formulated, the congressional committees with jurisdiction over the
matter urged the Carter and Reagan administrations to formulate the
agreement so as to ``preserve the residual authority of Congress'' over
nuclear test damages claims.\33\ In addition, Congress has the possible
option of granting jurisdiction of some of the Petition's claims to the
U.S. Court of Claims.
---------------------------------------------------------------------------
\33\ Howard Hills, Attorney at Law, ``Historical Information
Regarding the Marshall Islands Nuclear Claims Settlement,'' Testimony
before the House Committee on Resources, May 11, 1999.
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Question 2. Why, as you understand it, has the Administration
already responded to the Petition?
Answer.\34\ The Bush Administration addressed the Petition in
response to a request from Congress. In March 2002, the Senate Energy
Committee and House Resources Committee requested that an interagency
group (Departments of State, Energy, and Defense) evaluate the Petition
and provide Congress with an assessment of its legal and scientific
merits. According to the Marshall Islands government, in December 2001,
the RMI had also requested that the Bush Administration prepare a
response to the Petition. The Bush Administration released its report
in November 2004.\35\
---------------------------------------------------------------------------
\34\ Prepared by Thomas Lum, Specialist in Asian Affairs.
\35\ United States Department of State, ``Report Evaluating the
Request of the Government of the Republic of the Marshall Islands
Presented to the Congress of the United States of America.'' November
2004.
---------------------------------------------------------------------------
During 2003, Congress considered the Amendments to the Compact of
Free Association, and passed the Compact of Free Association Amendments
Act in November 2003 (signed into law by President Bush in December
2003 (P.L. 108-188). The Compact, as amended, extended financial
assistance to the Republic of the Marshall Islands and the Federated
States of Micronesia but did not address the Changed Circumstances
Petition. Both Congress and the Bush Administration expected to review
the Petition following completion of bilateral negotiations on the
Compact amendments and passage of the authorizing legislation. The
report was intended to offer the Administration's position on the
Petition, based upon the knowledge and expertise of U.S. government
agencies who had long been involved in the U.S. nuclear testing, health
monitoring, and cleanup on the Marshall Islands. However, the
Administration, by making the report, did not supersede the principal
role of Congress in responding to the Petition. The RMI government
stated that the report was an ``advisory opinion'' and a ``preliminary
step in creation of a record that will enable Congress to make informed
decisions with respect to disposition of the petition.'' \36\
---------------------------------------------------------------------------
\36\ RMI letter to the Senate Energy Committee and House Committees
on Resources and International Relations, January 18, 2005.
---------------------------------------------------------------------------
______
Department of Health & Human Services,
Bethesda, MD, August 23, 2005.
Hon. Pete Domenici,
Chairman, Senate Committee on Energy and Natural Resources, U.S.
Senate, Washington, DC.
Dear Senator Domenici: Thank you for the opportunity to testify
before the Senate Committee on Natural Resources on July 19th and for
the opportunity to respond to Senator Salazar's question for the
record. Provided below is my response.
Senator Salazar has asked:
In your report you note that your estimate of additional
cancer illnesses of about 530 is an over-estimate. What is the
confidence level of that assessment? In other words, is this
the very upper bound, or is there potential for even higher
numbers?
We tried to avoid making assumptions that could lead to
underestimating the true risk of radiation-related cancer. 13y doing
so, we probably developed dose estimates that are too high. We also
assumed that risk is proportional to dose. This is a reasonable
assumption for exposures received on atolls other than Rongelap and
Ailinginae, but one that has not been tested before on people exposed
to the extremely high doses estimated for Rongelap and Ailinginae.
Thus, for both of these reasons, our overall risk estimate probably
errs on the high side.
Our estimate, however, is not a confidence bound. For example, if
we combined atolls other than Rongelap and Ailinginae, and assume that
the average doses are reasonably correct, a rough 95% upper confidence
bound of twice the central estimate in our report, or about 770 excess
lifetime cancers, is appropriate. Stated another way, we think there is
only a 1 in 20 chance that there could be more than 770 radiation-
related cancers among the approximately 14,000 exposed residents of
those atolls.
We can't give an upper confidence bound for risk to the populations
exposed on Rongelap and Ailinginae. Although we are reasonably sure the
exposure levels were very high, we don't have enough data on radiation-
related cancer risk in any populations with such high exposures. As a
practical matter, with such high estimated doses for thyroid, stomach,
and colon cancer, it would be difficult to argue that any of these
cancers occurring in a member of the small population (about 80
persons) exposed on Rongelap or Ailinginae was not radiation-related.
To a lesser extent, the same is true of leukemia and many other cancers
as well.
Please do not hesitate to contact NCI should you have any
additional follow-up questions.
Sincerely,
Kiyohiko Mabuchi, MD.
______
Responses of Steven Simon to Questions From Senator Bingaman
Question. The reports by NCI, DOE, and the Nationwide Radiology
Survey each found, generally, that there was a decrease in the amount
of radioactive contamination as you move south from the test sites. (a)
Was there a scientific basis for the Tribunal to reach this same
conclusion in 1987, and (b) analytical tools available to estimate
risks of illness on a regional basis among the nearly 14,000 people
living in the Marshall Islands in 1958?
Answer. (a) In 1987, there were various sources of data available
on the degree of contamination and/or exposure across the Marshall
Islands. None of the data sets were as comprehensive, in geographic
terms, as that that become available in 1994 upon completion of the
Nationwide Radiological Study. However, there were data available in
1987 and all showed lower levels of contamination both with increasing
distance and with more southerly location. In response to this
question, I will identify some of these publications and/or sources of
data. Since it has been several years since I have reviewed these
reports and due to time constraints in providing this testimony, I will
not summarize the quantity or quantity of information provided in each.
In 1952, the Health and Safety Laboratory (HASL) of the Atomic
Energy Commission (AEC) began conducting radiological monitoring
following nuclear tests conducted in the Marshall Islands. HASL issued
reports after the 1952 IVY series \1\ and a more comprehensive report
following the 1954 CASTLE series--the now well known report of Breslin
and Cassidy \2\ (see my statement of July 19, 2005 for evidence
concerning that report's availability). That report, in particular,
provided aerial monitoring data for 28 atolls as well as data at more
distant locations of Hawaii, Midway, Guam, and Palau. In 1957, the AEC
issued a summary of radiological data \3\ collected to that date.
---------------------------------------------------------------------------
\1\ Eisenbud, M. Radioactive debris from Operation IVY. New York:
New York Operations Office, Health and Safety Laboratory, U.S. Atomic
Energy Commission. NYO-4522 (Del.), 1953.
\2\ Breslin, AJ, Cassidy, ME. Radioactive debris from Operation
Castle, islands of the mid-Pacific. New York: New York Operations
Office, Health and Safety Laboratory, U.S. Atomic Energy Commission.
NYO-4623 (Del.), 1955.
\3\ Radioactive contamination of certain areas of the Pacific Ocean
from nuclear tests, a summary of the data from radiological surveys and
medical examinations. G.M. Dunning, ed. Washington, DC: U.S. Atomic
Energy Commission, 1957.
---------------------------------------------------------------------------
There were many reports issued in the early years following the
nuclear tests concerning surveys made of the nuclear test site atolls.
See Simon (1997) \4\ for a listing of many of those documents. Most, if
not all, of those can be found on the Dept. of Energy's archival
document website (http://worfeh.doe.gov/).
---------------------------------------------------------------------------
\4\ Simon, S.L. A brief history of people and events related to
atomic weapons testing in the Marshall Islands. Health Physics 73(1):5-
20, 1997.
---------------------------------------------------------------------------
During many of the years when nuclear testing was conducted, the
HASL monitored remote locations from the test sites through the use of
a collection device using gummed film (a type of sticky paper) that
would retain fallout deposited on it. The paper collection devices were
submitted to the HASL for laboratory analysis. That program was
extremely successful partly because of the numerous locations where the
collection devices were stationed. In addition, the gummed film was
changed and collected daily, thus allowing the temporal pattern of the
deposition to be observed at each site. From the daily measurements,
one could also develop an estimate of the monthly or annual deposition
of fallout by summing the daily values. During certain periods of the
testing program, gummed film was collected at Kwajalein and Majuro and
those data were reported in 1960.\5\
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\5\ Harley, J.H, Hallden, N.A., Ong, L.D. Summary of gummed film
results through December 1959. New York: U.S. Health and Safety
Laboratory, HASL-93, UC-41, TID-4500, 1960.
---------------------------------------------------------------------------
Focused on northern atolls of the Marshall Islands, but highly
detailed in their analysis of samples and with related dose
projections, were the reports on the DOE-sponsored Northern Marshall
Islands Radiological Survey conducted in 1978.6,7 That
survey included Rongelap, Taka, Utrik, Bikar, Rongerik, Ailinginae,
Likiep, Ailuk, Wotho, Jemo and Mejit Islands, Ujelang, Bikini, and
Enewetak.
---------------------------------------------------------------------------
\6\ Robison, W.L., Conrado, C.L., Eagle, R.J., Stuart, M.L., The
northern Marshall Islands radiological survey: sampling and analysis
summary. Livermore, CA: Lawrence Livermore National Laboratory, UCRL-
52853, Parts 1-4, 1982.
\7\ Tipton, W.J., Miebaum, R. An aerial radiological and
photographic survey of eleven atolls and two islands within the
northern Marshall Islands. Las Vegas, NV: EG&G, EGG-1183-1758, 1981.
---------------------------------------------------------------------------
Finally, the report of Hamilton et al.\8\ (1987), while not
reporting measurements of environmental contamination, made inferences
about the geographic distribution of exposure to Iodine-131 released by
the tests. The inferences made by Hamilton et al. were drawn from their
observation of the incidence of benign thyroid disease, i.e., nodules.
---------------------------------------------------------------------------
\8\ Hamilton, T.E., van Belle, G. LoGerfo, J.P. Thyroid neoplasia
in Marshall Islanders exposed to nuclear fallout. Journal of the
American Medical Association, 258:629-636, 1987.
---------------------------------------------------------------------------
[Note to Senator Bingaman: While the Nationwide Thyroid Disease
Study, conducted in the mid-1990s (as discussed in my statement of July
19, 2005) could not replicate the findings of the Hamilton study, the
Nationwide Thyroid Study did not disprove the Hamilton findings. The
Hamilton findings, though they have not been replicated, seem to be in
general agreement with the all other data that show that the radiation
exposures were much lower at southern atolls than at more northern
locations.]
The various reports and sets of data noted here are, at least,
qualitatively consistent in that all showed a much lower contamination
at atolls in the Marshall Islands that are distant from the test sites,
and/or that are located in more southerly locations. The contamination
at the most distant locations approached or were equal to background
levels. Given the short time frame for me to develop this response, I
cannot say if the above list is totally comprehensive, though assuredly
it contains the most important historical data sets relevant to the
question from Senator Bingaman.
(b) In response to the inquiry regarding the state of analytical
tools in 1987 to estimate risk of radiation related illnesses on a
regional basis in the Marshall Islands, I can only answer within the
limits of my expertise. Since I work in the field of radiation dose and
risk assessment, my answer is informed, though my individual expertise
is more in dosimetry than in risk estimation.
To the first approximation, the risk of developing radiation
related cancers in individual organs or tissues is linearly related to
the cumulative radiation dose received by those tissues. Similarly, the
total risk of developing cancer in any of the body's tissues is
linearly related to the whole-body dose received (assuming for
simplicity here, the body is exposed uniformly).\9\ Within those
approximations, it seems evident that the risks to Marshallese (at
least on a regional basis as the question was framed), could have been
estimated from estimates of the whole-body or organ-specific exposures
received by the average person living in those regions.\10\ The point
of these statements is the following: even with rough estimates of
doses received in regions of the Marshall Islands, as provided by data
available in 1987, it would have been possible to roughly estimate the
relative degree of risk of developing cancers among those exposed in
different regions of the Marshall Islands.
---------------------------------------------------------------------------
\9\ Though the risk of leukemia has a curvature in the dose-
response relationship, for the purposes of discussion here, the risk is
still proportional to the whole-body dose received.
\10\ Risks are generally higher when exposure occurs at young age,
but the average person could be defined in whatever age groups were
deemed of interest.
---------------------------------------------------------------------------
Without conducting any analysis here, but only relying on my recall
about the data revealed in the reports noted above, most experts would
have roughly categorized the Ailinginae and Rongelap experience as
unique, i.e., these atolls very highly exposed, but similarly high
exposures did not occur anywhere else in the Marshall Islands.
Furthermore, there is near universal agreement (based on several aerial
surveys) that the exposures at Utrik were about 10-20% of those
received at Rongelap--but were higher than those at any other northern
atolls. In a very rough estimation, the cancer risk at Utrik could have
been scaled down proportionately from that observed at Rongelap even
though the doses were so high at Rongelap that proportionality between
dose and risk would not be precisely valid.
Regarding the rest of the Marshall Islands, some scientists might
say that information was too sketchy to make dose or cancer risk
projections in 1987. Nevertheless, there would have been no reason to
assume that doses received at distant locations were as high as at
Utrik since fallout clouds inevitably broaden as they travel and become
more dilute. Moreover, the additional time required to travel greater
distances inevitably results in more radioactive decay. Hence, even in
1987, one could argue on fairly firm scientific grounds that the most
distant (and southerly) atolls would have received lower doses and
lower risks. It would have been hard to argue against that conclusion
for whole-body dose, but maybe less so, concerning exposure to
radioactive iodine (e.g., Iodine-131). Any conclusion other than lower
doses would have been received at distant and southern atolls seems
contradictory to physical principles.
Dose received at the mid-latitude atolls, roughly defined for this
discussion as those north of Majuro but south of Ailuk, would have been
more difficult to intuit in 1987, especially without some data
analysis. However, it seems possible that geographic partitioning of
the risks could have been as follows: Rongelap and Ailinginae, Utrik,
south of Utrik to Majuro, and south of Majuro. Finer distinctions might
have also been possible from the data of Hamilton et al. Given these
distinctions on dose, rough distinctions on risk could have been made
by assuming the cancer risk as proportional to dose. This might have
allowed, for example, a compensation scheme where the dollar amount of
the reward was related to the geographic area where the predominant
exposure (if there was any) took place.
More quantitative calculations that individual cancers that
developed were a result of the doses received could have been made
using the probability of causation tables developed by the NIH and
published in 1985. Admittedly, this might have been difficult without
some expertise and effort in estimating doses received in the regions,
though it would have been eminently possible to develop
``representative doses'' for the regions, to have interpreted the risk
to have been related to those representative doses, and to have
developed an award system that reflected the representative doses and
risks of those geographic regions.
Question. On March 18, 2005 the NCT presented material to Committee
staff in support of their contention that contamination from the tests
was more wide-spread than previously understood. Would you provide
comment on these additional materials to the extent that you have not
otherwise done so in your statement and appendix?
Answer. I have very briefly reviewed the materials submitted by the
NCT in March 2005 and I will attempt to briefly comment on them
relative to your question concerning the degree of evidence they
provide that contamination was more widespread than previously
understood.
Before responding to your question, I reiterate a main point I made
in the Appendix to my statement of July 19, 2005: the ability of the
NCT to successfully complete the compensation plan it implemented was
not negatively impacted by the quality of information on the geographic
extent of contamination. The financial commitment of the NCT's
compensation program is by and large to naturally occurring cancers.
The analysis of the NCI showed that the increase in the cancer rate
amongst 98% of the population alive at the time of testing, i.e., all
but the people of Rongelap, Ailinginae, and Utrik was about 5%. Hence,
outside of the cancers from those atolls, about 95% of the cancers from
which claims could arise would be naturally occurring, that is, they
would occur even in the absence of exposure to fallout.
A brief review of NCT materials submitted:
The document ``A Discussion of Relevant Information Regarding the
Personal Injury Compensation Program of the Marshall Islands Nuclear
Claims Tribunal'' covers many topics, some of which I have addressed in
my July statement.
In regards to the 1987 publication of Hamilton et al., the NCT did
not provide a complete portrayal of the findings of Hamilton et al. I
discussed this in the Appendix to my July statement. While Hamilton did
make the statement that exposure seemed broader than previously
believed, his data indicate that the incidence of thyroid nodules
decreased about 10-times from the value at Utrik to the most distant
atolls. This dramatic decrease hardly supports the presumption that
risk should be considered equal across the Marshall Islands and could
be viewed as a definitive argument against such a notion.
The well known report of Breslin and Cassidy (AEC 1955) is also
mentioned, however, here again, the data are viewed as confirmation of
extensive exposure at distant locations rather than correctly viewed as
diminishingly small at distance locations. For example, the NCT
correctly state that the report gave a dose of 594 mrem at Arno. That,
however, is only 0.3% of the value for Rongelap Island and is only
about two-times the annual background radiation dose in the Marshall
Islands. Here again, these data argue rather strongly against the
presumption of equal risk across the Marshall Islands.
I found the citation of the report of Noshkin et al. (1975) on
plutonium levels in fish to be interesting, but to have little if
anything to do with radiation risk. The measurements reported by
Noshkin are in units of femtocuries, which are extremely, extremely,
small units of radioactivity, equal to 0.0000000000000003 curies. Such
levels of radioactivity are too small to be of real consequences for
risk.
I cannot comment in detail on the dose and risk estimates of
Behling et al. that are referred to in the NCT paper, as I do not know
the details of the methods used in his estimation. I do note that the
excess number of cancers predicted by Dr. Behling for locations other
than Rongelap and Utrik is in fairly good agreement with the value
reported by the NCI.
______
Responses of Neal Palafax to Questions From Senator Bingaman
Question 1. On Page 8 of your testimony, you state ``The NCI report
suggests that the ionizing radiation which caused cancers reached
beyond the four atolls and even beyond the northern atolls of the
Marshall Islands. The lack of a defined boundary of who was affected
and who was not affected by fallout makes a nation-wide system ideal''.
However, NCI suggests a boundary. They estimated the likelihood of
excess cancer in the northern atolls to be up 20.6 percent and in the
southern atolls to be up to 0.6 percent. Assuming cost is a
consideration, isn't it reasonable to focus supplemental health care
effort on the populations at risk?
Answer. Yes, however there are several key points to consider in
this question.
1. Defined Boundaries
2. Supplemental Health Care Effort on the Populations at risk
3. Determining background cancers
defined boundaries
The NCI study does not suggest a boundary of who was affected and
not affected by nuclear fallout. The NCI was tasked by the Senate
Committee on Energy and Natural Resources to:
``1(a) Please provide an estimate(range) of the expected numbers of
cancers and radiogenic illnesses (both fatal and nonfatal cases)
expected among the people of the Marshall Islands as a result of their
exposure to radioactive fallout from U.S. weapons testing in the
Marshall Islands ''.
The NCI study limited the parameters of its study. The NCI study
only addressed radiogenic cancers and did not address other potential
radiogenic illnesses (heart disease, strokes, genetic effects,
hypothyroidism, etc). Also the NCI study limited its study to the
effects of radiation exposure to Marshallese living during 1946-1958.
It did not include the expected numbers of cases of cancer or other
radiogenic illness in Marshallese who were exposed after 1958.
Cancers that may be linked to agricultural land and food chains
contaminated by nuclear fallout after 1958 was not addressed in this
study. Marshallese who were moved back to Rongelap while it was still
contaminated with radioactive fallout and Micronesian workers who
worked on the nuclear waste clean up crews in Bikini and Enewetak are
examples of populations whose cancer risk (and other radiogenic
illnesses) is not quantified.
supplemental health care effort on the populations at risk
Cancers may be induced or caused by many factors. Each factor
places the individual or population at a particular statistical risk
for developing cancer. The NCI study determined the statistical risk of
Marshallese alive from between 1948-1958 who would develop cancer from
the U.S. Nuclear Weapons Testing. This type of study is a population
study of cancer risk. This type of study does not determine which
individuals in the population under study will develop cancer.
The patterns of nuclear fallout placed the Northern atolls at risk
for 87% of the 530 expected radiogenic cancers (461 cancers) and 13%
(69 cancers) would be generated from other parts of the RMI. From the
NCI study one cannot know which 461 individuals in the northern atolls
or 69 individuals in other atolls will develop cancer. For illustrative
purposes, if there were 21 radiogenic cancers out of 100 background
cancers in the Northern atolls, in most instances, there would be no
way to know which individuals in the Northern atolls would develop
radiogenic or background cancers. This would also be true in the other
atolls of the RMI.
Stomach, colon, and other radiogenic cancers cannot be
differentiated from nonradiogenic causes of these cancers. Individuals
who could have the potential of developing cancers from the nuclear
testing should be cared for. As a health issue, there is no other way
to justly rectify this situation.
It is reasonable to concentrate cancer prevention, screening,
treatment and quality of life issues in populations where there are
higher rates of cancer such as the Northern atolls. It is not
reasonable to neglect cancers caused by nuclear testing in other areas
such as the Southern atolls, no matter how few radiogenic cancers occur
in that population.
determining background cancers
The NCI study utilized Native Hawaiian seer data to determine the
background rate of cancers in the RMI between 1948 and 1958. The number
of cancers expected from the nuclear weapons program was compared to
the predicted background rate indicating there is an expected 9%
increase in the total number of cancers from nuclear testing. It is
probable that the magnitude radiogenic cancers from the nuclear weapons
testing program was far greater than 9%.
Cancer rates in developing nations are largely dependent on when
that nation enters the ``epidemiologic transition', i.e., the period of
time where mortality patterns shift from infectious diseases to non-
communicable diseases (cancer, heart disease, diabetes, strokes). The
shift through the epidemiologic transition is largely determined by
westernization. The Native Hawaiians westernized, went through the
epidemiologic transition, much earlier than Marshallese. The Marshall
Islanders during 1948-1958 were largely subsistence fisherman and
farmers, whereas a large proportion of Native Hawaiians were already
urbanized. This means that the actual background cancer rate during
1948 to 1958 in the Marshall Islands was probably much less than the
predicted cancer rate utilizing Native Hawaiian data. If this is true
the relative impact of 530 cancers would be greater than 9%.
This point is germane, as the impact of radiogenic cancers on the
Marshallese population was likely far greater than the NCI study
predicted.
Question 2. On Page 8 of your testimony, regarding ``System 2,''
you apparently calculated the $50 million annual cost for the RMI's
healthcare request by multiplying $300 per person per month, by 12
months, by the 14,000 persons enrolled in the Section 177 Healthcare
Program. However, the committee's understanding is that most of the
Section 177 enrollees are not members of the 1958 population, which the
Nuclear Claims tribunal considers the ``affected'' population. Is that
correct?
Answer. Many of the 177 enrollees are not members of the cohort of
Marshallese living before 1958 in the Marshall Islands. However, living
before 1958 in the Marshall Islands does not necessarily define whether
or not their health was affected by the U.S. nuclear testing program.
As mentioned in my written and oral testimony of July 19, 2005, the
health consequences of the nuclear testing program include many areas
of health which were not quantified by the NCI study. Many of the
negative health effects of the nuclear weapons testing program were
generated from disruption of land tenure systems, social structure,
dietary structure, and lifestyle changes--which is a basis for having
health monitoring and care.
The Nuclear Claims tribunal definition of the ``affected
population'' should be addressed by them. The knowledge and science of
radiation and health has significantly evolved since 1986, as
exemplified by the NCI report and BEIR VII report from the U.S.
National Academy of Sciences. Policy, health programs, and research
should adjust with the new information.
Question 3. On page 7 of your testimony, regarding ``System 1'',
you point out the need for a comprehensive cancer care system at an
estimated annual cost of $5 million, and outer island screening and
primary cost of $2.5 million? Are these estimates based on treatment
for the 1958 ``affected'' population, and if so, how is this estimate
reconciled with the $50 million estimate developed for System 2?
Answer. System 1 estimates are based on several assumptions of the
``affected'' population:
1. All Marshallese living in the RMI before 1958 have
potential risk to develop radiogenic cancers from the U.S.
Nuclear weapons testing program. These individuals should have
access to primary, secondary, and tertiary cancer care at U.S.
standards.
2. All Marshallese who lived and ate food produced by nuclear
contaminated environments after 1958 have a potential to
develop radiogenic cancer. These individuals should have access
to primary, secondary, and tertiary cancer care at U.S.
standards.
3. All Marshallese and Micronesian workers who participated
in nuclear waste cleanup of Enewetak and Bikini atolls have the
potential to develop radiogenic cancer. These individuals
should have access to primary, secondary, and tertiary cancer
care at U.S. standards.
4. Radiogenic and non-radiogenic cancers cannot be
differentiated in the Marshallese population.
5. System 1 is designed only to take care of cancer. It does
not deal with other radiogenic illnesses or health problems.
System 2 is a comprehensive health care system. It would be
designed for all radiogenic illnesses including comprehensive cancer
care for the people of the RMI and potential health consequences of
nuclear testing (cultural and social disruptions for the cancers). This
health care system would be able to deliver a U.S. level of health
care. If system 2 is built there would be no need for system 1. If
system 1 is built, system 2 would still require development.
Question 4. On page 8 you state, ``Capital costs would be in the
order of 6 million dollars'' Alternatively, couldn't it be more
efficient to provide certain secondary and tertiary care at the U.S.
Military healthcare facilities at Kwajelein and Hawaii?
Answer. There are several key elements in designing an efficient
health care system; Efficiency is often defined from a particular
perspective. In this case one may take a U.S. of RMI point of view, or
a point of view of how to deliver the best health care in a cost
effective manner.
As an example of U.S. perspective of efficient care, the Department
of Energy through its subcontractors spent $1.1 million annually in
medical care costs and another $800,000 annually in logistics cost for
the last 50 years. These expenditures were for the people of Rongelap
and Utirik who were exposed to the fallout of the Bravo 1954 hydrogen
bomb detonation. Much of the care provided was for cancer.
From an RMI perspective, after 50 years of DOE operations and close
to 100 million dollars expended, there is no cancer screening or
treatment infrastructure in the RMI that can be attributed to the DOE
operation. The DOE utilized Kwajelein and Hawaii; therefore, the system
was efficient for the DOE, however it was a tragedy for the RMI. $2
million annually would have gone a long way to build cancer care
infrastructure in the RMI. There are many unanswered question regarding
all the health consequences of the nuclear testing program in the RMI.
Building the capacity of the RMI to care for the present and future
effects of the U.S. Nuclear weapons testing program is the most
efficient and cost effective use of the money. Kwajelein and Hawaii
should be adjunctive health care sites, used in very specific and as
needed situations. The focus of health care dollars should be in
building the RMI infrastructure.
______
Responses of James Plasman to Questions From Senator Bingaman
Question 1. On page 8 of your testimony you state that the NCIs
estimate of excess cancers, ``presents a reasonable likelihood of harm
to the entire Marshall Islands.'' However, the NCI report states,
``Higher excess cancer rates are expected in the populations exposed to
the highest doses that lived in the northern atolls.'' More
specifically, NCI estimated the likelihood of excess cancers in the
1958 population at over 100 percent in Rongelap, 55 percent at Utrik,
11 percent at the six other northern atolls, and 0.6 percent in the
rest of the Marshall Islands. Do you agree with the NCI that the risk
of excess cancer is highest in the northern atolls and declines as you
move south?
Answer. As a general proposition, and based on our current
understanding, I would agree that the risk of excess cancer is higher
in the northern most atolls as compared to the southern most atolls of
the Marshall Islands. This pattern of risk (assuming a linear
relationship between dose and risk) is suggested independent of the NCI
report, in external dose estimates by Sanford Cohen and Associates
(SC&A) in a study commissioned by the Office of the Public Advocate of
the Nuclear Claims Tribunal, ``Radiation Exposures Associated with the
U.S. Nuclear Testing Program for 21 Atolls/Islands in the Republic of
the Marshall Islands'' (see Table 7-2, attached).*
---------------------------------------------------------------------------
* Table 7-2 and letters submitted by Judge Plasman have been
retained in committee files.
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However, I would also caution that there is the potential for risk
to vary for atolls at the same latitude and that some northerly atolls
probably exhibit lower risk than some to their south. For example,
Wotho Atoll, (Latitude 10 degrees, 1 minute to 10 degrees, 11 minutes)
is estimated by SC&A to have an average per capita total exposure (for
individuals present during the testing period to present) of 31.50
person-rems (derived from attached Table 7-2, by dividing final column,
``Total Doses'' by second column, ``Population Size.'') Kwajalein, to
the south of Wotho (Latitude 8 degrees, 48 minutes to 9 degrees, 22
minutes) is estimated by SC&A to have an average per capita total
exposure (for individuals present during the testing period to present)
of 40.92 person rems. This comparison is supported by the 1955 AEC
Breslin-Cassidy report (Radioactive Debris from Operation Castle,
Islands of the Mid-Pacific, Breslin, A.J.; Cassidy, M.E.; New York:
U.S. Atomic Energy Commission, New York Operations Office, Health and
Safety Laboratory; NYO-4623; 1955) which showed external exposures from
the CASTLE series for Wotho to be 784 mrem, compared to 1,235 mrem for
Kwajalein. Perhaps more striking, Lae Atoll (Latitude 8 degrees, 54
minutes to 9 degrees, 2 minutes) has a lower estimated average per
capita total exposure (8.83 person-rem) than each of the dozen or so
atolls south of it, including the southern most atoll of the Marshall
Islands, Ebon (Latitude 4 degrees, 34 minutes to 4 degrees, 42 minutes)
with an SC&A estimated average per capita total exposure of 17.71
person-rem. Breslin and Cassidy similarly report Ujae at 114 mrem
compared to Ebon at 353 mrem. NCI identifies Wotho as a ``northern
atoll,'' while it identifies Kwajalein as a ``low exposure atoll.''
Similarly, NCI identifies Lae as a ``low exposure'' atoll, while Ebon
is identified as a ``very low exposure atoll.''
These groupings of atolls are on the basis of estimated exposures,
which are based on very little direct data. The NCI acknowledges ``Even
though we made estimates for all inhabited atolls and all age groups,
it is important to keep in mind that the dose estimates are uncertain,
and in some cases, uncertain to a high degree.'' (p. 11.)
Further, within an individual atoll, there could be considerable
variation in dose. Breslin and Cassidy note differences in measurements
of radiation of four to ten times within a single atoll (p. 9-10):
At Rongelap, approximately ninety miles from ground zero, a
difference of an order of magnitude in gamma radiation was
noted between two opposite ends of the atoll, a distance of
about 20 miles. This evidence was substantiated by ABLE flights
repeated on B+3 and B+18 during which measurements were made
over several islands in each of eight atolls. Tenfold
differences between island intensities were measured at
Rongelap and four-fold differences at several other atolls.
These gradients were not anticipated prior to BRAVO and
scintameter operators had not been cautioned to identify the
individual island surveyed within each atoll.
To standardize subsequent aerial surveys, a specific island
in each atoll was selected for measurement. All radiation
reports beginning with ROMEO are in reference to the same
island in each atoll.
The report does not indicate if the specific island selected in
each atoll was at the high end or low end of spectrum of radiation
intensity for that atoll. Consequently, additional uncertainty is
introduced into the dose estimates, as the Breslin-Cassidy report is
one of the sources of information utilized to derive these NCI
estimates (NCI, p. 7). NCI acknowledges (p. 9-10) ``the assignment of
atolls to the two groups most distant from the Bikini test site is
uncertain, as are the estimated doses at any individual atoll.''
Because differences in weather patterns, nature of detonation (over
land/water, height), yield and other variables can affect the pattern
of fallout deposition significantly, a gradient based on north south
latitude or based upon distance from the test site provides only a
crude approximation of the relative excess risk of cancer resulting
from radiation exposure from the tests.
In any case, based on the precedent set by the Downwinders Program
under the Radiation Exposure Compensation Act, the Tribunal generally
utilizes a presumption of causation approach to compensation, which
does not incorporate the relative level of risk based upon highly
uncertain dose estimates.
Question 2. Article IV of the Section 177 Agreement states that
``the Claims Tribunal shall be independent of the Legislative and
Executive powers of the Government of the Marshall Islands.''
Nevertheless, the RMI Legislature passed several laws and resolutions
including Resolution 151 and P.L. 1995-141 that had an impact on the
Tribunal's processes and decisions. Do you believe that passage of
these laws and resolutions was consistent with Article N of the 177
Agreement?
Did any members of the Tribunal or its staff testify against, or
for, passage of these or other laws and resolutions that affected the
Tribunal's independence?
Answer. In January 2003, former U.S. Attorney General Dick
Thornburgh released a report commissioned by the RMI government
entitled ``The Nuclear Claims Tribunal of the Republic of the Marshall
Islands: An Independent Examination of its Decision-making Processes.''
That report concluded ``The Tribunal's Independence Has Not Been
Compromised.'' Neither Resolution 151 nor P.L. 1995-141 had an impact
on the Tribunal's processes and decisions.
Resolution 151. This resolution, ``To declare formally that the
Republic does not accept as valid or accurate the findings of the
Nationwide Radiological Study as contained in the study's Summary
Report presented to the President and the Cabinet in December 1994,''
was adopted in 1995. Funding for this study was made available under
the Section 177 Agreement, Article II, Section 1(e), which provided
money for ``medical surveillance and radiological monitoring
activities.'' The results of ``such medical surveillance and
radiological monitoring activities shall be filed with the Claims
Tribunal.'' The Summary Report was presented to the Tribunal on
December 1, 1994. Furthermore, the data developed by the Study was
utilized by experts for both claimants and the Defender of the Fund in
the presentation of claims before the Tribunal. The conclusions of the
Tribunal with regard to radiological conditions in the subject claims
are based on the facts and law established in the case at issue, as
documented in the Tribunal's decisions. The Tribunal's decisions are
not inconsistent with the levels of Cesium found by the Nationwide
Radiological Study. The Tribunal was under no obligation to accept or
reject the findings of the study in its adjudications, either before or
after the passage of the resolution.
While this resolution had no effect on the Tribunal's independence,
no member of the Tribunal testified either for or against this
resolution. By a memorandum dated 22 September 1995, the Chairman of
the Nitijela Committee on Health, Education and Social Affairs
requested the Chairman of the Nuclear Claims Tribunal to appear before
the committee at a public hearing that day to testify on Resolutions
No. 151 and 156. During the hearing, Tribunal Chairman Oscar deBrum
declined to comment on Resolution No. 151. However, he did read for the
record a prepared statement in Marshallese opposing Resolution No. 156,
which requested the Tribunal to issue new regulations to include all
types of cancer as presumed medical conditions.
At the same hearing, Public Advocate Bill Graham was asked for his
comments on Resolution No. 151. He testified in support of certain
``Whereas'' statements in the resolution, including those relating to
the focus of the study on the present extent of radiological
contamination in the Marshall Islands and of the dose reconstruction on
the period from 1959 until the present rather than during the 1946-58
period of testing. In part, his comments were based on a report on the
Nationwide Radiological Study (NWRS) prepared by an independent
radiation protection consultant retained by his office. Graham also
offered his own perspective that the hundreds of thyroid nodules
diagnosed by the Nationwide Thyroid Study carried out in 1993 and 1994
appeared to contradict the statement in the NWRS Summary Report that
``Radiation illness is actually very rare, even among Marshallese.''
P.L. 95-141. The Thornburgh report documents the enactment of P.L.
94-78 in 1994 by the Nitijela. This law extended the presumption of
causation to those born after the period of nuclear testing. The
Chairman and officers of the Tribunal testified in opposition to the
bill in more than one hearing, arguing there was insufficient
scientific basis to extend the presumption in the manner proposed. When
P.L. 94-78 became law, the Tribunal adopted regulations reducing the
award to these ``underage'' claimants by fifty percent, reflecting the
reduced probability that the conditions of such claimants were caused
by the testing program. Subsequently, P.L. 95-141 was adopted by the
Nitijela, with no public hearing and no opportunity for Tribunal
testimony, and amended the Nuclear Claims Tribunal Act to provide at
Section 23(19):
For any eligible claimant who was physically present
(including in utero) in the Marshall Islands at any time after
June 30, 1946, or who is the biological child of a mother who
was physically present (including in utero) in the Marshall
Islands at any time after June 30, 1946, a causal relationship
between a presumed medical condition and the United States
Nuclear Testing Program will be presumed, and the presumed
medical condition shall be treated equally in all respects,
including compensation.
Because of Tribunal concerns with the new law, as noted in the 1995
Annual Report to the Nitijela, no action was taken to implement the law
and the fifty percent reduction of awards to ``underage'' awardees
remained in place. Consequently, it cannot be said that the passage of
the law impacted Tribunal processes and decisions. Prior to the passage
of P.L. 95-141, the Tribunal's policy and process was to reduce awards
to underage claimants. After the passage of the law, the Tribunal's
policy and process remained unchanged.
Question 3. The Tribunal's 1991 Annual Report states: ``1990 proved
to be a difficult year, with much of the Tribunal's energies expended
on dealing with the consequences of several disputes concerning its
independence.'' Page 26 of the Thornburgh report notes that this
initial period of conflict between the Tribunal and the Nitijela
resulted in the resignations of Chairman Piggott and Tribunal Member
Paul Devens. Please provide copies of their resignation letters or
other records that would help the Committee understand the reasons for
their resignations.
Answer. The resignation letters of Tribunal Member Paul Devens are
provided. The resignation letter of Chairman Piggott is not in the
files of the Tribunal. Additionally, copies of the legislation
referenced in the NCT 1991 Annual Report (Nitijela Bills 108, 114 and
132, and Resolutions 61 and 71) are attached and a brief legislative
history of each is provided.
Bill No. 108. This bill was prefiled on December 29, 1989. It was
introduced, passed on first reading and referred to the Committee on
Judiciary and Governmental Relations on January 3, 1990. The Tribunal
submitted a written statement on this and Bill No. 114 asserting the
principle of Tribunal independence. The committee held a hearing on
January 4; and on January 5 issued Standing Committee Report No. 133
recommending that the bill be amended. The bill came up for second
reading on January 12 and was recommitted to the committee, which was
the last action on record.
Bill No. 114. This bill was prefiled on January 5, 1990. It was
introduced, passed on first reading and referred to the Committee on
Judiciary and Governmental Relations on January 8. A committee report
was issued and the bill came up for second reading on January 12 at
which time it was ``filed,'' the last action on record.
Bill No. 132. This bill was prefiled on February 1. It was
introduced, passed on first reading and referred to the Committee on
Judiciary and Governmental Relations on February 2. That was the last
action on record.
Resolution No. 61. This resolution was prefiled on December 29,
1989. It was introduced and assigned to the Committee on Judiciary and
Governmental Relations on January 4. A public hearing was conducted on
January 10 and on January 19 the Nitijela accepted Standing Committee
report #145 and adopted the Resolution on second and final reading.
Resolution No. 71. This resolution was prefiled on January 17,
1990. It was introduced, passed on first reading and assigned to the
Committee on Judiciary and Governmental Relations on January 18. On
that same date, the procedural rules were suspended and the Resolution
was adopted on second and final reading.
Question 4. On page seven of your testimony you state that ''. . .
there is simply insufficient information to recreate individual doses
for people in the Marshall Islands for the purposes of a probability of
causation analysis. However, did the Tribunal consider estimating doses
on a regional basis, as the NCI has done?
Answer. The Tribunal has not considered estimating doses on a
regional basis, as the NCI has done, but has received atoll-by-atoll
dose estimates from SC&A. As presented in written and oral testimony to
this Committee, the Tribunal adopted a presumption of causation for the
entire Marshall Islands, following the precedent set by RECA for
Downwinders. Just as there are variations in exposure for claimants in
the Marshall Islands, there are likewise such variations in the
Downwinder population. These ``gradients'' for Downwinders are revealed
in a chart contained in an article in the 1990 issue of the Journal of
Health Physics. (Anspaugh, et al., ``Historical Estimates of External y
Exposure and Collective y Exposure from Testing at the Nevada Test
Site. II Test Series After HARDTACK II, 1958, and Summary,'' Health
Physics Vol. 59, No. 5, pp. 525-532, 1990 See attachment.) It shows a
wide variation of external exposures for the Downwind population and
groups them by the range of exposure. No adjustment is made to payments
or to eligibility for an award based upon the level of exposure for
Downwinders. Nor has the Tribunal considered such for claimants in the
Marshall Islands.
Question 5. Please comment on the fact that the more rigorous 2001
study of thyroid nodules was unable to replicate the findings of the
1987 Hamilton study, and what impact the 2001 study had on Tribunal
policies and decisions?
Answer. A report on the findings of the Marshall Islands Nationwide
Thyroid Study, Thyroid Disease in the Marshall Islands: Finding from 10
Years of Study by Takahashi, et al., was published in 2001. It reported
the findings ``do not provide support for an inverse relationship of
the prevalence of benign nodules with increasing distance from Bikini,
as found by Hamilton, et al. (1987).'' This conclusion must be taken in
the context of the position of this report in the development of
knowledge about the effects of radiation on the thyroid gland and the
self-acknowledged shortcomings of the report itself. As noted in the
title, this report covers ten years of study by the Marshall Islands
Nationwide Thyroid Disease Study. A previous report of the study in
1997 found ``The results of statistical analysis and hypothesis testing
for the population in this study are suggestive of relationships
similar to that observed by Hamilton et al. (1987)'' (p. 212) and
suggested the desirability of further study (Takahashi, T., et al.;
``An Investigation into the Prevalence of Thyroid Disease on Kwajalein
Atoll, Marshall Islands,'' Health Phys. 73:199-213; 1997.)
The 2001 Takahashi report, although not finding support for the
Hamilton study, notes, ``More than any other component of the
Nationwide Thyroid Disease Study, the dosimetry requires improvement''
(p. 87.) In the final chapter, ``Summary Statement and Planned Future
Investigation,'' the report specifically notes the need for, and
intention to devote, further attention to dose reconstruction issues.
Because dosimetry and resultant dose reconstructions are at the heart
of the report's findings on the Hamilton thesis, these findings deserve
to be subjected to continued review. The findings of the 2001 report
must be regarded as a step in the process of understanding the effects
of radiation on the thyroid in the Marshall Islands, not the final
statement.
Indeed, the 2004 NCI report provides considerable evidence that
more has been learned. The 2001 Takahashi report states: ``Therefore,
the lack of a dose-response relationship without Utrik seems to suggest
there is no evidence that thyroid cancer on other atolls is due to
radiation exposure.'' (p. 111) Three years later, the NCI report
estimates that there would be 173 radiation caused thyroid cancers
outside of Rongelap, Alinginae, and Utrik. Of these, 62% would have
occurred by the end of 2003 and fifteen are estimated to occur in the
atolls the NCI characterizes as ``very low exposure atolls.'' This
difference deserves further attention. The 2001 Takahashi report
suggests several areas where the study could be improved to ``draw a
more conclusive answer to the question of whether radiation-induced
thyroid cancers have occurred on other atolls.'' (p. 111) These areas
of concern presumably would also apply to the question of thyroid
nodules.
The finding that there seems to be no correlation between distance
from Bikini and incidence of thyroid nodules seems to be taken by the
2001 report authors as evidence that thyroid nodules are not due to
radiation. However, the reverse of this proposition could also be true,
that the levels of exposure from radioactive iodine are more uniform in
the Marshall Islands than we currently understand them to be. There is
ample evidence that exposure to radiation can cause thyroid nodules.
While the existing levels of cesium are indicative of past levels of
cesium fall-out, they are not necessarily indicative of radioactive
iodine deposition. The patterns of radioactive iodine fallout from the
Nevada Test Site in the U.S., as revealed by the NCI report published
in 1997, suggest that this is a possibility that cannot be dismissed
out of hand, although it is not consistent with our current
understanding of exposures in the Marshall Islands.
The 1997 report of the nationwide thyroid study suggested a
possible link between diet and thyroid nodules: ``Either iodine
deficiency or excess might be responsible for unusual thyroid responses
in island inhabitants.'' (p. 212.) However, the 2001 report found
``there was no difference in the frequency of iodine deficiency between
females with and without palpable nodules.'' (p. 68) Other researchers
(SC&A, ``Reassessment of Acute Radiation Doses Associated with BRAVO
Fallout at Utrik Atoll'') have suggested an iodine deficient diet could
affect the thyroid in two ways: 1) by stimulating the production of
excess thyroid stimulating hormone, it enhances the risk of thyroid
disease and 2) by causing a greater intake of radioactive iodine by the
thyroid, increasing the concentration of the radio-iodines in the
thyroid and thus increasing the risk of thyroid cancer and other
disease.
As noted above, the 2001 report is only the most recent report of
the Nationwide Thyroid Disease Study. This study originated in the
early 1990's and had an immediate impact on Tribunal policies and
decisions. Of concern to the Tribunal was that the ``more rigorous''
diagnostic methods utilized by the study, primarily the use of
ultrasound, would detect small, clinically insignificant ``occult''
nodules. The relationship observed by Hamilton between thyroid nodules
and distance from Bikini (as a proxy for exposure) was for non-occult,
``palpable'' nodules. Indeed the ultrasound used by the Nationwide
Thyroid Disease Study could detect nodules as small as 2 mm, while it
has been estimated that only about 50% of 1.0 cm nodules could be
palpated and 80-90% of 1.5 cm nodules could be palpated. These occult
nodules are relatively common, being found in as much as 40-50% of the
general population unexposed to radiation, the prevalence increasing
with age. The Tribunal, having recognized benign thyroid nodules as a
compensable medical condition (at the lowest award level of $12,500),
was faced with the question of how to address the additional benign
thyroid nodules, which would be detected by ultrasound. At issue was
whether the relationship to radiation accepted by the Tribunal for
``palpable'' nodules applied to these ``occult'' nodules and whether,
because of their size and general insignificance in the clinical sense,
such nodules should even be considered for compensation. The Tribunal
resolved these questions by limiting compensation to ``palpable''
nodules.
The Nationwide Thyroid Disease Study, and the 2001 report on the
progress of the study, have a valuable place in the development of
knowledge about radiation and thyroid disease in the Marshall Islands.
The report demonstrates the tremendous complexity and technical nature
of the issues involved in the continuing development of our
understanding of radiation effects on human health. However, the 2001
report is not the final word on these issues. The report itself
acknowledges the need for additional study and its shortcomings. The
2004 NCI report shows the state of knowledge in this area is continuing
to evolve.
______
Responses of Gerald Zackios to Questions From Senator Akaka
Question 1. You cite the NCI report at several points in your
testimony as supporting the Marshall Islands' contention that the
effects of the testing program are more widespread than had been
previously believed. That report also found that the likelihood of
excess cancer was concentrated in the north. Specifically, that 87
percent of the excess cancers are expected to occur in 16percent of the
population that was living on the eight northern-most atolls in 1958.
Does the RMI accept the NCI finding that there is a greater
likelihood of excess cancers in the north--and if so--is the RMI
prepared to work with the U.S. on an approach to healthcare that would
take into account the fact that the health effects of the tests are
concentrated in the north?
Answer. There is no question that the atolls in the northern part
of the Marshall Islands received higher doses of radiation from the
U.S. nuclear weapons tests than atolls further south. What is dramatic
about the findings of the NCI study, however, is the acknowledgment of
cancers beyond the 4 atolls. Article VIII of the Section 177 Agreement
refers to the 1978 Northern Marshall Islands Radiological Survey as
``the best effort'' of the U.S. to evaluate radiological conditions and
says that the survey can be used for ``estimating radiation-related
health consequences of residing in the Northern Marshall Islands after
1978.'' A bilingual book published by the U.S. Department of Energy
(DOE) in 1982 (The Meaning of Radiation for Those Atolls in the
Northern Part of the Marshall Islands That Were Surveyed in 1978)
``explains the results of the 1978 measurements'' for 12 atolls and
gives scientists' estimates as to the number of people at each of those
atolls who ``may die in the future from cancers caused by radiation
received in the coming 30 years from the atomic bomb tests.'' By adding
up the high-end fractional potential for each of those 12 atolls, a
total high-end estimate of 2.06 such ``future'' cancers was derived.
The NCI prediction of cancers beyond the 4 atolls represents a
changed circumstance. Table 3 of the NCI report indicates that most
(297) of the 532 estimated excess cancers will occur in populations
other than those who were on Rongelap, Ailinginae or Utrik in 1954.
We believe that assigning dose and health consequences on a north-
south gradient oversimplifies an extremely complex issue because this
distinction artificially confines the radiation burden to specific
space and time parameters. Most Marshallese retain land rights on
several atolls in the Marshall Islands and it is customary for people
to move from island to island depending on family and cultivation
needs. People moved throughout the Marshall Islands during and after
the testing period. Assigning a north-south distinction at a given
point in time (1954 for the Bravo test or 1958 as the end of the
testing period) is inappropriate because it does not include individual
residential histories. Similarly, we believe that U.S. policy should
not artificially limit the time of exposure. For example, current U.S.
programs to address the needs of communities affected by the testing
program are limited to exposures between the years of 1946-1958. This
qualification of time fails to consider that populations were exposed
to radiation released by those tests in subsequent years. Radiation
contamination continues for thousands of years; human exposure to
radiation did not take place just during the detonations. For instance,
radiation produced by the testing between 1946-1958 exposed Marshallese
laborers employed by the U.S. Department of Energy to clean-up Bikini
and Enewetak. However, because their exposure was environmental
exposure rather than exposure to fallout these workers are not eligible
for any U.S.-provided healthcare monitoring or care programs. We also
have people who were born on or prematurely resettled on Rongelap and
Bikini atolls--populations that were exposed to dangerous levels of
residual contamination. Yet because their exposure occurred after the
1958 cut-off period they are not eligible for the healthcare programs
they need, or able to apply for a claim with the Nuclear Claims
Tribunal.
We believe that the NCI report justifies the urgent establishment
of a medical monitoring program to detect cancers at an early stage so
there will be hope of treating the illnesses, and reducing patient
suffering. Any medical monitoring program should consider that
exposures to significant radiation took place beyond the confines of
the 4 atoll and 1946-1958 boundaries. It is also important to take into
consideration the recent National Academy of Science Biological Effects
of Ionizing Radiation (BEIR) VII report concluding that the lowest
doses of radiation exposure can cause health risks. With these points
in mind, we are prepared to work with the U.S. to formulate a program
to address the health consequences of the U.S. nuclear weapons testing
program taking into account the findings of the NCI Study and the NAS
BEIR VII report.
Question 2. In its views, the Administration expressed its concern
regarding over-enrollment in the 177 program. I understand that
exposure to radiation is not a consideration for enrollment in the 177
Programs. Is that correct, and is over-enrollment a concern shared by
the RMI?
Answer. The Section 177 Agreement provides that the healthcare
program be ``related to the consequences of the Nuclear Testing Program
and contemplated in United States Public Law 95-134 and 96-205.'' Those
laws specifically identified the four atolls as well as others affected
by the testing program as the beneficiaries for these programs.
Approximately two years prior to the effective date of the Compact,
the U.S. Government implemented what is referred to as the Burton
Health Care Bill where a U.S. contractor under the supervision of the
U.S. Government set up a healthcare program which allowed each of the
four atolls to make their own determinations as to eligibility for
healthcare under the program. The U.S. Government did not impose any
requirement that the individuals enrolled in the program demonstrate
that they were ``exposed'' to radiation, nor would such a requirement
have been realistic as a prerequisite to delivering healthcare. The
atoll leadership concludes that the nuclear weapons testing program
created a web of health-related issues for the community including, but
not limited to, those resulting directly from radiation exposure.
When the Compact came into effect, Section 177 healthcare funding
was administered on the same basis. That is, the RMI Government allowed
each of the four atolls to identify members of their community for
eligibility in the program under the management of a reputable medical
provider. This is consistent with prior legislation that remains in
effect and identifies the four atolls as communities that were
``affected by the Nuclear Testing Program.''
Specific radiation doses (which the RMI lacks the capacity to
obtain) were never a basis for enrollment in the Section 177 healthcare
program, nor was it required in the law. The RMI Government is
concerned about the numbers currently enrolled in the program, but
believes that this issue needs to be resolved in the context of
addressing the overall health consequences of the U.S. nuclear weapons
testing program.
It is also important to note that there are both direct and
indirect healthcare consequences of the U.S. nuclear weapons testing
program as Dr. Neal Palafox (from the University of Hawai'i, John Burns
School of Medicine) testified. The detonations themselves exposed many
people to radioactive fallout from the tests, but this is not the only
way that people are exposed to radiation or experience healthcare
issues related to the testing program. The 4 atolls communities have
also been resettled on atolls with residual radiation from the testing
program. The BEIR Committee of the National Academy of Sciences now
states that even the lowest levels of radiation exposure may cause
adverse health conditions. Beyond the exposure during the testing
program and during resettlement, there are numerous indirect
consequences of the testing program that affect the health and well-
being of the people of the 4 atolls. For example, communities that
cannot live on their home islands because of lingering contamination do
not have the same rights to cultivate resources on other peoples' land
where they are forced to live. This causes dietary changes and a
reduction in the consumption of local foods, and an increase in
imported foods that are higher in fat and salt. Dr. Palafox also
testified about the psychological effects of living in an environment
with lingering radiation--a poison that people fear because they know
that it causes illness, but one that they cannot see and remain
constantly afraid of. These psychological burdens have healthcare
consequences as documented in the survivors of Hiroshima and Nagasaki.
The RMI government wants the 177 HCP to be an effective program
that can meet the needs of its target population. If, as the 177
Agreement states, the purpose of the program is to provide healthcare
for needs related to the testing program, then the program must
acknowledge the full range of healthcare needs related to the testing
program, not just those that derive from direct exposure to radioactive
fallout. Taking into account the findings of the NCI study and the NAS
BEIR VII report, there is an urgent need to expand and restructure the
177 healthcare program or implement a healthcare program that will
address the healthcare needs of all populations who have been directly
and indirectly affected by the U.S. nuclear weapons testing program.
Question 3. In your testimony you request $45 million per year for
50 years ``to deliver healthcare for patients exposed to radiation.''
How does the RMI define ``patients exposed to radiation''--is this the
1958 population of the RMI of 13,940 assumed by the Tribunal as
eligible for compensation?
The RMI government would like to work with the U.S. government to
define the parameters of the populations exposed to radiation in the
Marshall Islands. We believe that the following populations have
healthcare needs related to the U.S. nuclear weapons testing program:
the people who resided on Rongelap, Rongerik, Ailinginae and
Utrik on March 1, 1954;
the people of other atolls exposed to significant levels of
radiation on March 1, 1954, such as the people of Ailuk,
Likiep, Kwajalein and other mid-range atolls;
the people exposed to significant levels of radiation from
the cumulative impacts of all 67 tests, and not just the one
test on March 1, 1954;
the people who resettled on Rongelap and Bikini when those
atolls still contained high levels of radiation--both of these
communities had to relocate a second time from their home
islands because they ingested dangerous amounts of radiation
from their environments. The Rongelap population that resettled
its home islands prematurely is not the same population that
was exposed to the Bravo test although there is some overlap;
the ``control'' group that was placed in Project 4.1 to
understand the effects of radiation on human beings (including
those acknowledged by the White House Advisory Committee on
Human Radiation Experiments to have taken part in U.S.
government-sponsored human radiation experiments);
referrals from the Nuclear Claims Tribunal with radiogenic
illnesses;
the populations of Enewetak and Utrik who need assurances
their health is not compromised by their decision to return to
previously contaminated locations, and particularly the people
who live adjacent to the Runit Dome on Enewetak;
workers employed by DOE to assist with the clean-up of
Bikini and Enewetak after the testing activities commenced;
Marshallese working for DOE who collected soil, plant and
animal samples from highly contaminated areas for U.S.
government researchers;
special needs situations that arise for individuals, such as
a Reverend and his wife who are from Arno but resettled with
the Rongelapese and were exposed to high levels of radiation,
or the families that accompanied their spouses to Bikini and
Enewetak during the clean-up effort on those atolls (in both of
these examples people died from cancer but were ineligible to
participate in healthcare programs for people affected by the
testing program because they are not from the 4 atolls);
Question 4. Would you please provide the RMI's 1958 population,
broken down by atoll.
Answer. I believe the RMI's total population for 1958 was 14,163.
Please see the attached PDF file and specifically the 1958 atoll by
atoll numbers in Table 3 on page 4.*
---------------------------------------------------------------------------
* The file has been retained in committee files.
---------------------------------------------------------------------------
Again, the 1958 population is a starting point for considering
which people were exposed to radiation from the testing program, but in
the years after 1958 many people were exposed to radiation released by
those tests.
Question 5. You cite the report by Richard Thornburgh in support of
the RMI position that the 177 settlement is ``manifestly inadequate.''
However, that report states, on page 66, ``we are not qualified to
review or critique the appraisal methods used by the Hallstrom Group or
Lesher, or the results of their analysis . . .'' In addition, the
Thornburg report did not review or critique the critical issue of how
the Tribunal determined the extent of the area ``affected'' by the
tests. How do you believe these omissions affect the conclusions of the
Thornburgh report?
Answer. Former U.S. Attorney General Richard Thornburgh was
commissioned to provide an independent assessment of the Nuclear Claims
Tribunal, in order to ascertain whether the Tribunal's procedures and
decisions were fair, reasonable, and consistent with its mandate under
the Section 177 Agreement. In this respect, Attorney General Thornburgh
concluded at page 77 of his Report: ``However, based on our examination
and assessment, it is our view that the personal injury and property
damage awards rendered thus far by the Nuclear Claims Tribunal were the
result of reasonable, fair and orderly processes that are entitled to
respect.''
With regard to the quote from the Report pertaining to appraisal
methodologies, the entire sentence reads: ``We are not qualified to
review or critique the appraisal methods used by the Hallstrom Group or
Lescher, or the results of their analysis, but observe that their joint
report appears to be the kind of thorough and professional work product
we would expect from well-qualified experts asked to calculate damages
in a matter of significant importance.''
In connection with the appraisal methodology issue, we understand
that the Defender of the Fund from the Nuclear Claims Tribunal has
provided the Committee with a response to the report of the
Congressional Research Service (CRS) explaining how experts who have
appeared before the Tribunal conducted their analysis and responding to
some of the statements made by the CRS on this issue. Under the
circumstances, we believe that it would be inappropriate for the RMI
Government to express any views of its own, as we believe that the
record speaks for itself.
The Thornburgh Report takes into account the Tribunal's presumption
of exposure throughout the Marshall Islands with respect to its
personal injury compensation program. It also notes that in addition to
seeking expert advice and examining radiological studies, ``[t]he
Tribunal also looked to other countries compensation systems that might
be appropriate to the Marshall Islands (p. 28).'' This process led the
Tribunal to consider and pattern its program after the regime
established by the U.S. Congress in the Radiation Exposure Compensation
Act, also known as the ``Downwinders' Act.'' In comparing the affected
areas, the Thornburgh Report notes in footnote number 109, ``[t]he
`affected area' in the Marshall islands was much larger than that
defined in the Downwinders' Act. Moreover, the total yield of the tests
in the Marshall Islands (108,496 kilotons) was approximately 99 times
that of the atmospheric tests in Nevada (1,096 kilotons).'' Although
the Thornburgh report does not specifically critique this issue in
great detail, the RMI believes that the Report's conclusion that awards
made by the Tribunal ``were the result of reasonable, fair and orderly
processes that are entitled to respect'' supports the validity of the
Tribunal's program for personal injury awards and the presumption of
exposure throughout the Marshall Islands.
Appendix II
Additional Material Submitted for the Record
----------
July 19, 2005.
Hon. Pete V. Domenici,
Chairman, Senate Energy and Natural Resources Committee, 364 Dirksen,
Washington, DC.
Dear Chairman Domenici: Thank you for convening the hearing today
about needs related to the U.S. nuclear weapons testing in the Republic
of the Marshall Islands (RMI). Although we are not testifying today, we
will be in attendance at the hearing and want to thank you in advance
for your leadership in supporting a discussion of needs beyond the 4
atolls.
We are greatly appreciative that your Committee requested the
National Cancer Institute report regarding cancer incidence in the RMI
related to the U.S. nuclear weapons testing program. We are concerned
that our populations--as well as other atolls beyond the 4 atolls that
are not present today--are in need of medical monitoring to detect
cancers and other radiation-related illnesses that the NCI tells us to
expect. Medical monitoring is critical so our people can identify their
illnesses before they become untreatable. Most of our people live on
the outer islands where they do not have access to medical monitoring
and treatment.
Our communities also have property claims pending with the Nuclear
Claims Tribunal. We are concerned that if the Tribunal makes awards
there are insufficient funds to pay for our claims. We hope that if
Congress identifies a mechanism to address the property claims for the
4 atoll communities that have already received awards that Congress
will extend these same rights to other atolls in the RMI.
We have many documents in our possession about radiation exposure
to our atolls and other atolls outside of the 4 atolls that we would be
happy to share with you if you are interested. The RMI national
governnment's Changed Circumstances Petition includes a significant
discussion of radiation exposure to Kwajalein and Ailuk atolls.
Minister Gerald M. Zackios' statement to you today also acknowledges
the needs of the atolls beyond the 4 atolls, particularly with regard
to healthcare. We look forward to continuing to work with the RMI
national government and with your Committee to address these needs and
to provide appropriate services to the populations beyond the 4 atolls
that we now know are exposed to radiation levels sufficient to warrant
attention.
Alvin T. Jacklick, Minister of Health (Jaluit
Atoll); Donald F. Chapel, Minister of
Justice (Likiep Atoll); Michael Kabus,
Senato (Kwajalei Atoll); Christopher Loeak,
Senator (Ailinglaplap Atoll); and Maynard
Alfred, Senator(Ailuk Atoll)
______
Embassy of the
Fedeerated States of Micronesia,
Washington, DC, August 10, 2005.
Hon. Pete V. Domenici,
Chairman, Senate Committee on Energy and Resources, SH-328 Hart Senate
Office Building, Washington, DC.
Dear Mr. Chairman: In light of the Committee's hearing focusing on
the inadequacies of the United States Government's response to the
nuclear legacy in the Republic of the Marshall Islands (RMI), the
Government of the Federated States of Micronesia (FSM) wishes to call
attention to the residual effects of the nuclear testing on our islands
and people as well. Evidence disclosed since 1986 reveals that
radioactive fallout from the testing also reached most, if not all of
the FSM. In addition, many FSM citizens were recruited to assist in the
cleanup efforts on the Bikini and Enewetak atolls. Many of them later
have developed cancer.
A recent study published by the National Academy of Sciences
confirmed that the effects of prolonged exposure to relatively low-
level amounts of radiation are more severe than was generally believed
at the time of the original Compact negotiations. New research has
shown that with exposure to as little as 0.1 sieverts of radiation, the
rough equivalent of 10 CT scans, one out of a hundred people will
likely develop some form of cancer. To this day, the level of radiation
in the RMI and FSM is exponentially greater than this baseline cancer-
causing amount. Such recent findings underscore our concern that the
harmful effects of the nuclear testing program were not confined to the
RMI.
In Section 177(a) of the Compact of Free Association the Government
of the United States ``accepts the responsibility for compensation
owing'' to citizens of the FSM as well as to those of the RMI and Palau
for damage or injury resulting from the nuclear testing program. This
responsibility was not changed or diminished by the recent Compact
amendments. Lacking adequate information, the FSM has not previously
sought to assert a claim under Section 177 on behalf of its citizens.
At this time we seek only to initiate a dialogue with the United
States Government to begin addressing our concerns. We believe that
through such a constructive process the necessary channels can be
opened to move toward resolving this matter of growing urgency.
Mr. Chairman, we extend our thanks to you and to the Committee
Members for the recent hearing on this grave issue. We respectfully
request that this letter be included in the hearing Record.
Sincerely yours,
James A. Naich,
Charge d'Affaires, ad interim.
______
Statement of U. Hans Behling, Ph.D., MPH, Senior Health Physicist,
S. Cohen & Associates
statement of purpose
The enclosed response addresses specific statements presented by
Steven L. Simon, PhD, in oral and written testimony to the Senate
Energy and Natural Resources Committee Hearing on July 19, 2005.
Response to Dr. Simon's Testimony to the Senate Energy and Natural
Resources Committee
For ease of verification, each statement made by Dr. Simon is first
identified by page and quoted then followed by a response, as presented
in the written testimony below.
Statement #1 (page 3):
The primary purpose of my testimony is to provide this committee
with accurate and unbiased scientific and technical information related
to the effects of nuclear testing in the Marshall Islands. My purpose
does not include taking a side in the discussion for the need or
justification for additional compensation. [Emphasis added.]
Response to Statement #1.
Although scientists are expected to be objective, we scientists are
also mere humans and subject to the same emotional influences as
others. Thus, the degree to which Dr. Simon can truly render unbiased
scientific and technical information pertaining to issues addressed in
the Changed Circumstance Petition must be viewed in context with Dr.
Simon's personal feelings as openly acknowledged in the following
statements contained in page 3-4 of his testimony:
Despite my gratification at seeing the recognition of the NWRS
data, I find it disconcerting that more than 10 years after the study
was completed, the RMI Government has not publicly acknowledged it or
its findings. This curious situation stems back to events in early 1995
following the completion of the NWRS. After the study report was
delivered to the NCT, the Nitijela (parliament) of the Marshall Islands
invited me to present the findings to them while they were in session,
but upon arriving at their chambers on more than one occasion, they
never actually allowed me to make the presentation. Near to that time,
Mr. Bill Graham of the Nuclear Claims Tribunal provided in person oral
testimony to the Nitijela to discredit the study. Whether that
testimony was a legitimate undertaking for an official of the NCT seems
relevant to this discussion, though it is of little personal concern to
me at this late date. Following Mr. Graham 's testimony, the Nitijela
enacted a resolution to formally reject the findings of the NWRS.
Neither the Nuclear Claims Tribunal website nor the RMI Embassy website
acknowledges the study or has made its findings available. [Emphasis
added.]
Statement #2 (page 3 as already quoted above and repeated below):
. . . the RMI Government has not publicly acknowledged it [i.e.,
the NWRS data] or its findings.
Response to Statement #2.
Between 1999 and 2002, Dr. John Mauro and I served as principal
investigators to the Local Governments of Enewetak, Bikini, Rongelap,
and Utrik Atolls, as well as the Nuclear Claims Tribunal's Public
Advocate in behalf of all other atolls. In total, five separate reports
were issued to the Nuclear Claims Tribunal, which assessed current-day
radiological conditions and remediation strategies (Mauro, Behling and
Anigstein 1999a; Mauro, Behling and Anigstein 1999b; Mauro and Behling
2000; Mauro and Behling 2002a; Mauro and Behling 2002b). The contents
of these reports were also presented in oral testimonies to the Nuclear
Claims Tribunal and are part of the public record. Of relevance here is
the fact that each of these reports made extensive use of and fully
acknowledged the scientific contribution of Dr. Simon's Nationwide
Radiological Study (NWRS). For example, the following acknowledgement
appears in Mauro and Behling (1999a):
Finally, this . . . [report] . . . would not have been possible
without the vast amount of radiological data, data analyses, and
reports prepared over the years by Dr. William Robison and his
associates at Lawrence Livermore Laboratory, and Dr. Steven Simon and
the researchers of the RMI Nationwide Radiological Study. [Emphasis
added.]
Statement(s) #3 (pages 5-7)
One of our areas of emphasis was measurement of Cesium-137 (Cs-137)
in the terrestrial environment, e.g. soil, fruits, etc. Cs-137 has been
measured worldwide as a marker of fallout contamination . . .
. . . At this point, I would now like to refer to Fig. 1 which
presents the measurements of Cs-137 in soil from the NWRS, ordered from
left to right by the highest observed value at each atoll.
Response to Statement #3.
By means of these statements, Dr. Simon implies that the NWRS Cs-
137 study data obtained in the 1990s (or 40 to 50 years after the 1946-
1958 testing period) provide accurate data on localized fallout
patterns in behalf of more than 100 radionuclides that would have
contributed to acute exposures following each of the 67 nuclear tests
of which 44 were conducted at or near Enewetak Atoll and 23 were
conducted at Bikini Atoll.
A thorough discussion that quantifies the limitations of using Cs-
137 as the ``indicator'' radionuclide for more than 100 other
radionuclides present in fallout is beyond the scope of this document
and at best can only be briefly summarized herein.
Radionuclide Heterogeneity. Nuclear fission of uranium or plutonium
creates more than 100 radionuclides that have the potential to be
present in local fallout that results in acute radiation exposures. Due
to the extreme high temperatures created at time of detonation,
essentially all radionuclides are initially vaporized as they are
carried upward by the suction of the fireball. Because these
radionuclides represent a wide range of elements, they differ
physically and chemically, which affect their distribution in the
mushroom cloud by a process known as fractionation. Radionuclides with
high vaporization temperatures will condense early and primarily
distribute themselves as fallout particles in the stem of the mushroom
cloud at lower altitudes. Such radionuclides will be the first to
descend to the surface as local fallout.
Conversely, radionuclides with low vaporization temperatures will
rise to much higher altitude within the mushroom cloud before
condensing onto particles that ultimately descend to the ground as
fallout. The longer time interval before condensing and higher initial
altitudes that the particles must descend allows these radionuclides to
travel longer distances before reaching the surface. Prominent among
this category of radionuclides are radioiodines, which can even exist
in vapor form at room temperatures. Lastly, a significant number of
radionuclides exist as radioactive gases of xenon and krypton, which
neither condense nor deposit on the ground but may, nevertheless, be
present in the traveling radioactive cloud that contributes to human
exposure.
Besides fractionation, the heterogeneity of these radionuclides in
local fallout is further enhanced by meteorological, radiological, and
chemical factors. Meteorological factors involve highly variable wind
directions and wind speeds at discrete altitudes (i.e., wind shear).
For example, radionuclides that may initially reach altitudes of 50,000
feet will descend through successive layers of air in which both the
wind direction and speed may vary drastically and affect their relative
distribution in local fallout. Equally, radiological properties affect
the distribution of individual radionuclides. For example, most of the
radionuclides in localized fallout have relatively short physical half-
lives that range from minutes to hours, to days and weeks and will,
therefore, decay more rapidly than those with longer half-lives. Thus,
with time, a traveling radioactive cloud will markedly change in
radionuclide composition.
Lastly, variations in chemical properties of fallout particles will
affect their rate of deposition onto ground surfaces that these
particles may encounter.
In summary, there are many complex variables that affect the
distribution of individual radionuclides in fresh local fallout that
gives rise to potentially large exposures. For this reason, residual
contamination levels for a single radionuclide (i.e., Cs-137) taken
several decades later, cannot be viewed as a reliable indicator for
evaluating the distribution and resultant radiation doses from a
complex and heterogeneous mixture of radionuclides.
To illustrate the limitations of Dr. Simon's assertion (i.e., that
present-day Cs-137 can serve as a reliable indicator for assessing the
potential of acute radiation exposures more than fifty years ago), I
would like to make reference to Figure 1 on page 10 of his written
testimony submitted to the Senate Committee. For convenience, this
figure is reproduced herein as Exhibit #1.* Figure 1 identifies maximum
Cs-137 levels as measured in the NWRS for 37 atolls/locations in the
Marshall Islands. The figure identifies locations #32, #34, and #35 as
having the highest present-day contamination levels of Cs-137 and
corresponding to Northern Rongelap Atoll, Bikini Atoll, and Northern
Enewetak Atoll, respectively. Because Cs-137 levels are presented on a
``log-scale,'' maximum contamination levels at #32, #34, and #35 are
fully one-thousand times higher than values at other locations in the
RMI where present-day levels are within the range of ``global fallout''
and are assumed to have been unaffected by fallout with no significant
radiation exposures.
---------------------------------------------------------------------------
* Exhibits 104 have been retained in committee files.
---------------------------------------------------------------------------
It should be noted that Figure 1 was taken directly from reference
8 cited in Dr. Simon's testimony. Reference 8 identifies Dr. Simon as
the principal author of a publication entitled ``Findings of the First
Comprehensive Radiological Monitoring Program of the Republic of the
Marshall Islands,'' in Health Physics Vol. 73(1): 66-85, 1997.
While the data shown in Figure 1 are not disputed, they are,
nevertheless, an incomplete and highly biased presentation of the
larger NWRS study data that is cited in the 1997 study (Simon and
Graham 1997). Concurrently with Figure 1 data, Simon and Graham in
their 1997 study also provided a more detailed evaluation of Cs-137 for
each of the three maximally contaminated atolls that include locations
identified in Figure 1 as #32, #34, and #35. These expanded assessments
are reproduced herein as Exhibits #2, #3, and #4 and show present-day
dose-rate levels (which are directly correlated to residual Cs-137
contamination levels) on an island-by-island basis. Of significant are
the following observations shown in Exhibits #2, #3, and #4.
1. Contamination levels among individual islands for a given atoll
varied by as much as ten-thousand-fold. For illustration, Exhibit #2
provides data for the island of Bokombako and the island of Ribewon of
Enewetak Atoll.
2. In spite of the fact that Enewetak Atoll and Bikini Atoll served
as ground zero for 66 nuclear tests and Rongelap Atoll was heavily
contaminated from BRAVO Shot, a significant number of islands at each
of the three atolls showed present-day contamination levels that were
only slightly above, within, and below the range of values judged as
unaffected/global fallout locations.
3. On Dr. Simon's premise that present-day Cs-137 levels can
reliably predict past radiation exposures, one would have to conclude
that a person could have lived at select locations on Enewetak, Bikini,
and Rongelap Atolls for the entire 12-year testing period without
having received any significant amount of radiation above that
contributed by global fallout. The fallacy of this premise needs no
additional explanation.
Statement #4 (page 7):
In my view, the data obtained in the NWRS, supplemented with other
information, can be used for estimating past radiation doses with the
understanding that individual estimation is highly uncertain. It is
also my view, however, that estimates of radiation dose, new or old,
while not totally irrelevant, are not terribly pertinent to the
discussion of changed circumstances. My reasoning is two fold. First,
the compensation plan, as developed by the NCT, has no criterion for
admissibility based on radiation dose. That makes dose, largely
irrelevant from their standpoint. Second, the radiation-related cancer
burden for the nation as a whole is likely to be relatively small
compared to that from naturally occurring cancers. Hence, a well-
budgeted compensation plan of the sort implemented by the NCT primarily
needs to plan to pay for naturally occurring cancers. The number of
radiation related cases, which can only be predicted from estimates of
radiation dose, adds only a modest increment to the naturally occurring
cases [10].
Response to Statement #4. To summarize, in this statement, Dr. Simon
implies the following:
1. that acute radiation doses received in the aftermath of 67
individual nuclear tests from fresh fallout between 1946 and 1958 can
be adequately quantified by means of his NWRS environmental survey
measurements involving Cs-137 levels in soils and plants taken in the
1990s;
2. that the compensation plan developed by the NCT has no criterion
for admissibility based on radiation dose; and
3. that the radiation related cancer burden for the nation as a
whole is likely to be relatively small compared to that of naturally
occurring cancers.
While the NWRS data provide valuable insight about present-day
radiological conditions throughout the RMI, they provide no credible
scientific basis for dose reconstruction when used in compensating
radiation injury claims. When used to adjudicate claims of radiation
injury, dose reconstruction requires comprehensive monitoring data and
their robust scientific analyses, as summarized below.
requirements for dose reconstruction in radiation claim compensation
The use of dose reconstruction in compensating claims of radiation
injury by means of showing a probability of causation in excess of 50%
requires that the individual claimant was monitored continuously for
all potential external and internal radiation exposures. Monitoring
requires that the individual was continuously assigned either a film
badge dosimeter or thermoluminescent dosimeter (TLD), which measures
all external radiation exposure. For internal exposures, monitoring is
considerably more complex and may involve routine bioassays, which
measure the amount and distribution of radionuclides within the body.
Acceptable bioassay techniques include routing whole-body counting and
laboratory analysis of urine and fecal samples for a given individual.
Even when an individual has been provided complete monitoring, dose
reconstruction for a specific tissue/organ that has become cancerous
is, nevertheless, scientifically complex, time consuming, and costly.
A current example of dose reconstruction for adjudicating radiation
injury claims involves the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA) of 2000 and Federal regulations
defined under Title 42 CFR Part 82, Methods for Radiation Dose
Reconstruction Under the Energy Employees Occupational Illness
Compensation Program Act of 2000.
In behalf of EEOICPA, dose reconstructions are currently only
performed for claimants whose personal external and internal monitoring
records are judged to be sufficiently complete and accurate.
Independent of whether the claim is compensated, such dose
reconstructions are very time consuming with cost estimates well in
excess of $10,000 per case. EEOICPA also makes provisions to compensate
workers who were either inadequately monitored or where dose
reconstruction yields estimates that lack scientific credibility or
suffer a high degree of uncertainty. Thus, under 42 CFR Part 83,
Procedures for Designating Classes of Employees as Members of the
Special Exposure Cohort Under the Energy Employees Occupational Illness
Compensation Program Act of 2000, claimants who worked at facilities
designated as Special Exposure Cohort (SEC) are afforded compensation
without a dose reconstruction.
With exception of a limited amount of group monitoring of
inhabitants exposed on Rongelap, Ailinginae, and Utrik Atolls following
exposure to BRAVO Shot fallout, there was no attempt to monitoring any
other inhabitants of the RMI during the 12-year period. Therefore, the
nearly total absence of individual monitoring data precludes any
likelihood of meaningful dose reconstruction, as suggested by Dr.
Simon.
understanding the nct compensation program
In order to understand the technical basis of the NCT compensation
program, it is important to understand the following facts and
associated difficulties:
1. Cancers (and nearly all other health effects) associated with
radiation exposure are not unique to radiation.
2. Even for a heavily exposed population, the vast majority of
cancers that will occur are admittedly not due to radiation but are the
result of ``natural''/other causes. This is due to the relatively high
natural incidence rate of cancer in the normal population.
Thus, as the recent NCI study (NCI 2004) correctly pointed out,
cancer is a ubiquitous disease that may have a baseline incidence rate
of up to 40% and involve cancers that are clinically indistinguishable
from cancers induced by radiation.
Also acknowledged in the recent NCI study of the exposed
Marshallese, estimates of population doses, (let alone doses for any
specific individual that address both internal and external exposures
over the 12-year period of time) were described as ``crude.''
In order to avoid the technical difficulties, limitation, and high
cost * of a risk-based (i.e., dosereconstruction-based) compensation
program, the NCT elected to employ a more achievable program that
closely paralleled the U.S. Downwinder Compensation Program. Under such
a program, it was understood (and accepted) that (1) a credible dose
reconstruction is not possible and (2) the number of claims/
compensations would clearly exceed the actual number of radiation-
induced health effects due to the simple fact that neither claimants
nor scientists could distinguish ``baseline'' cancers from radiation-
induced cancer.
---------------------------------------------------------------------------
* Under the current Energy Employee Occupational Illness
Compensation Program Act (EEOICPA), the average cost for a dose
reconstruction of an ``energy employee'' (who in most cases was
formally monitored for internal and external radiation and for whom all
monitoring records are available from the DOE), the average
administrative cost of a dose reconstruction is estimated at $10,000 to
$20,000 per case.
---------------------------------------------------------------------------
To illustrate the difficulty of dose reconstruction of an
unmonitored population group, a limited parallel can be drawn between
the exposed Japanese A-bomb survivor cohorts of Hiroshima and Nagasaki
and Marshall Islanders. Of relevance are the following observations as
reported in Radiation Research (Pierce et al. 1996), which may be
compared to the recent NCI Study (NCI 2004).
1. In the absence of monitoring data, scientists are still
debating/refining estimates of the exposed Japanese for a relatively
``simple event.'' This ``simplicity'' is represented by a single
detonation for which exposure occurred in a split-second of time and
was almost exclusively confined to external radiation with no
significant contribution from internal exposure. In contrast,
Marshallese were potentially exposed externally and internally to 67
nuclear tests conducted at Enewetak/Bikini Atolls.
2. Table 1 identifies the fact that, as of 1990, a total of 4,863
fatal cancers were observed in the exposed Japanese cohort.
3. Of the 4,863 observed fatal cancers, it is estimated that 428
fatal cancers were the result of radiation exposure. This implies that
4,435 or 91% of the fatal cancers were not the result of radiation
exposure. However, it would not be possible to identify the 428
cancers--thought to be radiation induced--from among 4,863 total
observed cancers.
4. Table 2 defines another critical parameter that correlates
distance from hypocenter with the relative risk that an observed cancer
among the exposed Japanese was due to radiation versus all other
factors: with increased distance, the likelihood that an observed
cancer was due to radiation (as opposed to other factors) diminishes.
This is to be expected since the radiation dose falls off as a function
of distance.
Consistent with this observation is the NCT's full understanding
that the magnitude of radiation doses varied substantially among RMI's
population groups; however, in the absence of monitoring data and due
to uncertainties about the true distribution of fallout, the NCT could
not exclude any population group from having received significant
exposures.
Table 1.--SUMMARY OF CANCER DEATHS IN ATOMIC-BOMB SURVIVORS, 1950-1990
------------------------------------------------------------------------
Estimated Percentage
Total number of of deaths
Cause of death number of deaths due to attributable
deaths radiation to radiation
------------------------------------------------------------------------
Leukemia...................... 176 89 51%
Other types of cancer *....... 4,687 339 7%
-----------------------------------------
Total....................... 4,863 428 9%
------------------------------------------------------------------------
* Solid cancers, such as stomach, lung, breast, and colorectal cancers.
Table 2.--CANCER DEATHS AMONG ATOMIC-BOMB SURVIVORS, 1950-1990, BY DISTANCE FROM HYPOCENTER
----------------------------------------------------------------------------------------------------------------
Leukemia Other cancers *
-------------------------------------------
No. of Percent Percent
Distance from hypocenter (km) persons No. of attributed No. of attributed
deaths to deaths to
radiation radiation
----------------------------------------------------------------------------------------------------------------
<1....................................................... 810 22 100% 128 42%
1 - 1.5.................................................. 10,590 79 64% 1156 18%
1.5 - 2.0................................................ 17,370 36 29% 1622 4%
2.0 - 2.5................................................ 21,343 39 4% 1781 0.5%
----------------------------------------------------------------------------------------------------------------
* Solid cancers, such as stomach, lung, breast, and colorectal cancers.
summary conclusions
The genesis and justification of the Tribunal's non-quantitative
approach have also been thoroughly described in Attachment IV of the
RMI's Changed Circumstance Petition and reflect the following
limitations/uncertainties, objectives, and legal precedents:
Data Limitations and Uncertainties. Traditional personal injury
claims (that are adjudicated on an individual adversarial basis)
require claimants to demonstrate that their injuries were the direct
result of an exposure in excess of a 50% probability of causation dose
value. Since no attempt was ever made to monitor RMI persons for
external and internal exposures for the 12-year period, there could be
no credible scientific basis for individuals to demonstrate the
magnitude of their exposure and the probable likelihood that radiation
was the etiologic agent of their medical condition/claim.
Program Objectives. It is a matter of record that the traditional
adversarial approach that employs quantitative dosimetry data and
probability of causation requires months to years of extensive research
and analysis even when the claimant has had the benefit of being
monitored. The required level of effort rises dramatically (1) for
incomplete monitoring data, (2) for long exposure periods, and (3) for
complex exposure conditions that include multiple pathways (external,
ingestion, inhalation) and potentially more that 100 radioactive
fission and activation products.
The objectives of the Tribunal's compensation program were to
resolve claims in a timely, efficient, and cost effective manner due to
the fact that decades had elapsed since the claimants' exposures and
many claimants were of advanced age or had already passed away.
A key scientific advisor to the Tribunal and architect of the NCT's
compensation program was Dr. Robert W. Miller. At the time, Dr. Miller
was Chief of Clinical Epidemiology at the National Cancer Institute. In
a paper he authored for the Tribunal (Radiation Effects Among the
Marshallese), Dr. Miller stated:
My objective is to advise on diseases that are known to be
related to radiation exposure. It is obvious that without
exposure, there can be no effect. One should err toward
leniency, but should not accept impossible claims of exposure.
[Emphasis added.]
He further stated that the list of radiogenic health impacts ``. .
. should apply to Marshallese who were on the Islands at some time
between July 1, 1946 and September 30, 1958, including those in utero
at the ending date.''
In adopting Dr. Miller's recommendations for a presumptive
administrative claims process, the Tribunal acknowledged the fact that
the U.S. had failed to monitor the Marshallese population who to
varying extent were exposed to nuclear fallout from 67 nuclear tests
whose combined explosive yield (and production of radioactive fission
products) was nearly 100 times that of all atmospheric tests conducted
at the Nevada Test Site.
Legal Precedents for a Presumptive Administrative Process.
Attachment IV of the CCP identifies the Radiation Exposed Veterans
Compensation Act of 1988 and the 1990 Radiation Exposure Compensation
Act, which among others compensates American civilians who were
physically present in any ``affected area'' downwind areas during the
periods of atmospheric testing at the NTS.
For purpose of comparison, external exposures to downwinders in the
most affected countries surrounding the Nevada Test Site have been
estimated for three time periods as summarized in Table 3 below:
Table 3.--AVERAGE CUMULATIVE EXTERNAL DOSES FOR THREE MAJOR TIME PERIODS
[Source: Anspaugh et al. 1990]
------------------------------------------------------------------------
Time period
-----------------------------------------
1951-1958 1961-LTBT* LTBT-1975
------------------------------------------------------------------------
Average individual** dose (R). 0.472 0.0034 0.0018
------------------------------------------------------------------------
* Limited Test Ban Treaty (LTBT) signed 5 August 1963.
** Exposed persons are those living in the counties of Clark, Lincoln,
Nye, and White Pine in Nevada and the counties of Iron and Washington
in Utah.
Inspection of Table 3 reveals that compensation was granted to
downwinders for doses that were extremely small. It is safe to say that
exposures even to the least affected population groups in the Marshall
Islands were likely to be many times higher than those experienced by
downwinders who were compensated under RECA.
references
Anspaugh, L.R., Y.E. Ricker, S.C. Black, R.F. Grossman, D.L.
Wheeler, B.W. Church, V.E. Quinn, 1990, ``Historical Estimates of
External Gamma Exposure and Collective External Gamma Exposure from
Testing at the Nevada Test Site. II. Test Series After Hardtack II,
1958, and Summary.'' Health Physics 59(5): 525-532.
Behling, U.H., J.J. Mauro, and K. Behling, 2002a, ``Reassessment of
Acute Radiation Doses Associated with BRAVO Fallout at Utrik Atoll,''
prepared for Utrik Local Government Council, Republic of the Marshall
Islands, Majuro, MH.
Behling, U.H. and J.J. Mauro, 2002b, ``Statement Before the Nuclear
Claims Tribunal Regarding the Potential Radiation Doses and Health
Risks to the Current and Future Population of Utirk, Taka, Bikar, and
Taongi Atolls and An Evaluation of the Costs and Effectiveness of
Alternative Strategies for Reducing the Doses and Risks,'' Majuro, MH.
Mauro, J.J., U.H. Behling, and R. Anigstein, 2000, ``Statement
Before the Nuclear Claims Tribunal Regarding the Potential Radiation
Doses and Health Risks to a Resettled Population on Rongelap Atoll,
Rongerik Atoll, and Ailinginae Atoll and An Evaluation of the Costs and
Effectiveness of Alternative Strategies for Reducing the Doses and
Risks,'' Majuro, MH.
Mauro, J.J., U.H. Behling, and R. Anigstein, 1999a, ``Statement
Before the Nuclear Claims Tribunal Regarding the Potential Radiation
Doses and Health Risks to a Resettled Population on Enewetak Atoll and
An Evaluation of the Costs and Effectiveness of Alternative Strategies
for Reducing the Doses and Risks,'' 2-volume Technical Background
Document prepared for the Enewetak/Ujeland Local Government Council,
Majuro, MH.
Mauro, J.J., U.H. Behling, and R. Anigstein, 1999b, ``Statement
Before the Nuclear Claims Tribunal Regarding the Potential Radiation
Doses and Health Risks to a Resettled Population on Bikini Atoll and An
Evaluation of the Costs and Effectiveness of Alternative Strategies for
Reducing the Doses and Risks,'' Majuro, MH.
National Cancer Institute (NCI), 2004, ``Estimation of the Baseline
Number of Cancers Among Marshallese and the Number of Cancers
Attributable to Exposure to Fallout from Nuclear Weapons Testing
Conducted in the Marshall Islands.'' National Cancer Institute Report
to the Senate Committee on Energy and Natural Resources.
Pierce, D.A., Y. Shimizu, D.L. Preston, M. Vaeth and K. Mabuchi,
1996, ``Studies of the Mortality of Atomic Bomb Survivors. Report 12,
Part I. Cancer: 1950-1990,'' Radiation Research 146(1): 1-27.
Simon, S.L. and J.C. Graham, 1997, ``Findings of the First
Comprehensive Radiological Monitoring Program of the Republic of the
Marshall Islands.'' Health Physics 73(1): 66-85.
______
Statement in Response of Philip A. Okney, Defender of the Fund, Nuclear
Claims Tribunal, Republic of the Marshall Islands
CRS Report for Congress March 14, 2005--Republic of the Marshall
Islands Changed Circumstances Petition to Congress
Congressional Research Service Memorandum May 16, 2005--Loss-of-use
Damage Estimates: Analysis of NCT Methodology and Comparison
with Alternative (CRS) Methodology
nct procedures
This discussion responds to the CRS loss of use report and
memorandum on the methodology for determination of the loss of use
dollar value of property damages resulting from the U.S. nuclear
testing program in the Republic of the Marshall Islands. Property
damage claims filed against the claims fund come before the NCT as a
class action by the respective atoll populations and the Defender of
the Fund argues against the claim in defense of the fund. Never is the
U.S. government a party to any matters adjudicated before the NCT.
The Defender takes issue with the assertion by the CRS that the
loss in use methodology ``was developed by a consulting firm under
contract for the NCT''. Enewetak Claimants and the Defender were the
parties in the Enewetak claim and likewise were are two parties in the
Bikini claim. The parties entered into contracts with their respective
expert appraisers while the NCT authorized payment of the expert fees
as a cost of proceedings. The NCT did not retain its own expert
appraiser nor did it consult with either of the experts for the parties
outside the proceeding of the claims. While the NCT reviews the
evidence reflecting the opinion of the appraisers, it is the work of
the appraiser and not the NCT that fashions the methodology for
arriving at the loss of use value.
consideration of methodology
While the appraisers applied an analysis of annual rental rates
from transactions within the Marshall Islands to calculate claimants'
damages for lost use, the Defender contests the CRS notion that the
appraisers failed to consider ``alternative methodologies'' and that
the NCT ``provided many of the estimation parameters and assumptions.''
In regard to the former, the Enewetak appraisers, both of whom were
experienced in appraisal work in the Pacific region of Micronesia, from
the beginning recognized the existence of ``several unique factors''
that served to cloud any attempt to ``superimpose traditional American-
based valuation theories on cultural landownership patterns in the
Marshall Islands.'' Prohibitions against the sale of land rights,
traditional land tenure attitudes and systems, along with ``concept[s]
of market value'', all served the ``absence of a real estate market''
as it is known in the U.S. Hallstrom-Lesher joint Appraisal Report
(1996) at p. 15. For these reasons the appraisers settled on leases and
use agreements as the basic comparable representing market value.
Additionally, the appraisers did consider ``capitaliz[ation] of a
`value' for the islands at the time of the U.S. intervention and then
bring that amount forward to a current date'' in response to a request
from the NCT. Hallstrom/Lesher letter to the NCT dated January 31,
1997, response number 5; letter dated March 28, 1997, response number
4; Hallstrom letter to Mr. Pevec and Mr. Weisgall dated May 20, 2005,
vaporized land discussion. (Mr. Lesher passed away in June 2000.) This
alternative methodology was rejected by the appraisers.
The CRS use of an income approach in its model of agricultural
rents is considered by the Defender to be inappropriate for the
Marshall Islands. Early in the proceedings the NCT rejected use of this
approach observing that the Marshall Islands is basically a subsistence
rather than a cash economy for most of the period of loss of use under
consideration. At best we could characterize the economy as an emerging
cash economy. As such the income methodology for valuing these atolls
does not historically fit in the Marshall Islands nor does the approach
reflect the reality of the economic picture. In its decision the NCT
noted that ``Mr. Hallstrom...testified at the loss of use hearing
that...while consideration was given to including values from outside
the Marshall islands, this approach was rejected because it would have
required a considerable degree of subjective adjustments for location.
Only Marshall Island transactions were considered as they were more
directly germane.'' In the Matter of the People of Enewetak, et al.,
NCT No. 23-0902, p. 8, lines 1-5 (April 13, 2000).
That the NCT influenced ``estimation parameters and assumptions''
applied by the appraisal methodology is misconstrued by the CRS in the
view of the Defender. It is important to understand that the Enewetak
appraisal report was offered into evidence prior to the completion of
the Bikini report. The Enewetak report discussed the sales comparison
approach, income capitalization use, extent of land transactions, size,
entirety of land and water, economic use, interest rates, and taking of
property (the so-called `8 points' in the Bikini appraisal) and their
application in the determination of loss of use value. At the
commencement of the Bikini appraisal work the NCT was familiar with the
discussion in the Enewetak report and for purposes of consistency
suggested to the parties that their appraisers use the same
methodology. Of the eight points the parties agreed on the use of six.
It is at that time that the NCT ordered use of the remaining two
points, after the parties had full opportunity to brief and present the
reasons for their positions.
reasonable application of the methodology
The Defender disagrees with the CRS that ``. . . specific
application of the methodology, . . . much of the critical data used,
some of the assumptions, and certain statistical procedures applied
(i.e., the sampling technique and the regression model)--produce
estimated rentals that appear to be significantly overstated . . .
[resulting in] excessive total damages claimed and awarded by the
NCT.'' Mr. Hallstrom's May 2005 letter responds with detailed reasons
for the data used, assumptions made, and statistical procedures applied
in the methodology. The Hallstrom/Lesher 1997 letters provide detailed
reasons for the choices made in these areas as well. Reflected in the
appraisers' reasoning are the distinguishing aspects of the Marshall
Islands property markets. Since there is a lack of sequential
transactions from year to year throughout the atolls, this trend
alerted the appraisers to be as objective in their final opinion as the
empirical data would permit. Obviously the lack of data would cause any
observer to make certain assumptions in the methodology that in
appraising other markets would not be necessary.
taking of vaporized islands
CRS concluded that there was a permanent taking of vaporized
islands by the U.S. government in these claims. In the opinion of the
Defender the given facts of the situation dictated the NCT finding of a
temporary taking of lands. To reach this conclusion considerable weight
was given to the U.S. government promise to the island populations at
the time of their evacuation from their homelands that the atolls would
be returned to them upon completion of the tests. Moreover the absence
of market data (no fee simple sales) for valuing the permanent taking
of land makes it inappropriate to use a capitalized value. Further
support for a temporary taking of land is found in the U.S. Supreme
Court decision Kimball Laundry Co. vs. United States (1949), 338 U.S.
1, 93 L.Ed. 1765, 69 S.Ct. 1434 (7 ALR2d 1280, 1287-8), where the
temporary taking of a laundry facility by the U.S. military during
wartime resulted in damages to the owner in that ``. . . the proper
measure of compensation is the rental that probably could have been
obtained. . . .'' Where there is a temporary taking of land, loss of
use damages are appropriate. It was the decision of the NCT that found
the vaporized lands to be a `temporary taking' and, thus, this approach
was incorporated in the appraisal methodology.
use of comparable property values
Liberal use of comparable property values in the U.S. and globally
to measure value of land in the Marshall Islands, as put forward by the
CRS, is rejected by the Defender. Use of comparable lease values
outside the Marshall Islands has been rejected by the NCT, observing
that land is unique in the Marshall Islands. The Marshall Islands
Constitution emphasizes this component of land mandating that ``a court
shall have due regard for the unique place of land rights in the life
and law of the Marshall Islands'', Article II, Section 5(9), and
further recites that ``Nothing in Article II shall be construed to
invalidate the customary law or any traditional practice concerning
land tenure or any related matter in any part of the Marshall Islands,
including, where applicable, the rights and obligations of the
Iroijlaplap, Iroijedrik, Alap and Dri Jerbal. Article X, Section 1 (1).
Due to the scarcity of land, prohibition against its sale (other than
between citizens) and ownership customs attached to the land, property
values of the islands cannot be meaningfully compared to land values in
other parts of the world. The appraisers elaborated on the wisdom of
using comparables from outside the Marshall Islands by expressing their
fear of being overly subjective in property transaction adjustments.
They concluded that to do so would introduce subjectivity into the
adjustment scheme for comparing transaction variables and the resulting
comparison would be meaningless.
defining period of loss of use
The belief by CRS that possession of Bikini from 1969-1978 by a
minority of the Bikinian population constituted use of the atoll is
false. Where the facts identified the return of the Bikinians to their
home islands (1969-1978) and the use had by their inhabitants, the NCT
was fully apprized of events before ruling that occupation of the lands
during this time frame did not amount to free and unrestricted use of
the property. In its decision the NCT considered that the U.S. removed
the island population (for a fourth time) observing that ``people
residing in Bikini were receiving excessive doses of cesium-137,
strontium-90, and plutonium which necessitated their immediate removal
. . . endangering the health and welfare of the Bikinians who returned
to Bikini.'' Hence the NCT concluded that ``mere physical presence on
land which remained highly contaminated does not result in a
restoration of use during this period.'' In the Matter of the People of
Bikini, NCT No. 23-04134, p. 11 lines 1-7, and 14-16.
Again the CRS view that the return of the Bikinians to their home
islands in the 1970's ``should not be counted as loss-of-use'' implies
that ``rentals on these two occupied islands . . . would be lower (or
zero) owing to this contamination and that the corresponding value of
their stay on alternative atolls should not be deducted from the
overall rental.'' In fact only a small minority of the islanders
returned to Bikini Atoll in the 1970's. The vast majority remained on
alternative lands and refused to return to their home islands until the
lands were declared safe for habitation by the U.S. government If the
state of contamination reduced the value of the islands to zero, then,
the NCT had no other choice than to award full loss of use value as
part of the damages, which it did. If the property value was simply
diminished by the contamination, then, the difference between fair
market value before the contamination and the value after contamination
would be the correct amount of the damages. Adjustment to the loss-in-
use value for use of alternative lands, being used by the majority of
the islanders, would be appropriate. This approach was used by the NCT
and acts to safeguard against inflation of the damage estimates.
accuracy of affected land areas
Coral atolls vary in size over the years due to tides, storms, and
other natural events as well as acts by mankind. While the parties to
the Bikini claim did not agree on the acreage of Bikini atoll, the
difference amounted to 41 acres out of a total of 1,800 plus acres. The
NCT found that ``[b]oth Claimants and Defender of the Fund provided a
credible basis for their acreage figures based on past surveys.'' But
due to the lack of direct testimony from the surveyors, those being the
AEC (1968), EG&G (1978), Holmes and Narver (various years) as amply
described in the legislatively enacted Bikini Atoll Rehabilitation
Committee (BARC) reports of the 1980's, and for purposes of
consistency, the NCT adopted the figures provided by the Bikinians. In
the Matter of the People of Bikini, NCT No. 23-04134, p. 17 lines 10-
20, March 5, 2001.
Attention has been drawn to the difference in acreage figures
applied in the Enewetak report and the NCT award concerning the
vaporized islands as well as the amount of acreage unavailable for use
as of 1980. Instructions were given to the appraisers after the filing
of their report to revise the acreage figures downward (lowering the
damage award) by agreement of the parties.
valuation of use of alternative lands
CRS suggests that the use value of alternative lands is best
determined by appraisal experts. The Defender points out that CRS
ignores the reality that the use value for alternative lands applied by
the NCT was the direct result of a stipulation between the contesting
parties regarding damages after the parties consulted with their
respective appraisal experts. In the Enewetak claim both appraisers
recognized that the per acre value of Ujelang Atoll was lower than
Enewetak Atoll because of vast physical disparities between the atolls,
the ability to sustain habitation, and the very limited resources and
remoteness of Ujelang Atoll, This stipulation is an agreement between
the parties to the claim and reflects their desire to settle their
differences on that particular subject. It is not a matter for
appraiser methodology. To accept the stipulation and approve its use as
part of the calculation of damages is entirely within the discretion
and authority of the NCT.
applicability of prior compensation
The CRS fails to understand that the deduction of prior
compensation received by claimants from any NCT award must (1) be part
of the original claim for damages and (2) require actual proof of
payment of a specific amount of such prior compensation. In response to
Appendix A., List of Major Compensation Programs and Authorizations,
1964-2004, CRS Memorandum pages 36-38, all items listed, but for the
following item below, were either deducted (to be deducted in the
claims of Rongelap and Utrik) from personal injury or property damage
awards, were not claimed as part of a damage award, or lacked
sufficient proof of payment of a specific amount so as to be
deductible. Item 3, 1976, Enewetak, radiological cleanup, $20M plus
military equipment and personnel, P.L. 94-367 was not claimed. The
Enewetak claim asked for damages in an amount to restore and
rehabilitate the land for any current contamination above and beyond
the DNA cleanup from 1972 to 1980. In response to Appendix B: Estimates
of U.S. Nuclear Testing-Related Assistance and Compensation, CRS
Memorandum page 15, fn. 29, all items listed, but for the following
items below, were either deducted (to be deducted in the claims of
Rongelap and Utrik) from personal injury or property damage awards,
were not claimed as part of a damage award, or lacked sufficient proof
of payment of a specific amount so as to be deductible. Bikni Project,
1964, $2M, Defense/Settlement for Use of Bikini; 1981, $400,000,
Energy/Health plan radiation exposure; and 1988, $2.3M, Interior/Bikini
conception plan were not made known to the Defender by the U.S.
government.
______
Republic of the Marshall Islands,
Ministry of Foreign Affairs,
Majuro, Marshall Islands, August 19, 2005.
Hon. Daniel Akaka,
U.S. Senate, 141 Hart Senate Office Building, Washington, DC.
Dear Senator Akaka: Once again, I would like to thank you for your
tremendous leadership on issues related to the legacy of the US,
nuclear weapons testing program in the Republic of the Marshall
Islands. The RMI's current Changed Circumstances petition to the U.S.
Congress is s. request for U.S. assistance to respond to the burdens of
the nuclear legacy that the RMI lacks the financial and human resources
to address.
It is my hope that the Petition will strengthen the enduring
friendship and close relationship between the Marshall Islands and the
State of Hawei'i. As you know, our Petition requests funding to build
the RMI's capacity to address those aspects of the nuclear legacy that
make sense to provide in-country. At the same time, it also requests
funds to purchase healthcare services from the State of Hawai'i when it
is not prudent for us to do so locally. I also believe that improving
the healthcare services for people most affected by the U,S. nuclear
weapons testing program will decrease the emigration of Marshallese to
your state as many people leaving the Marshall Islands are in search of
better healthcare.
Again, thank you for your continued commitment to assist the people
of the Marshall Islands with our efforts to address its problems
related to the U.S. nuclear weapons testing program. The answers to
your post-hearing questions follow.
Respectfully,
Gerald M. Zackios,
Minister of Foreign Affairs.
______
Statement of Bill Graham, Public Advocate, Marshall Islands Nuclear
Claims Tribunal
The purpose of this statement is to provide information which I
believe has relevance to the Committee's consideration of the written
testimony submitted by Dr. Steve Simon in connection with the formal
hearing conducted on July 19, 2005.
Dr. Simon states that the purpose of his testimony ``does not
include taking a side in the discussion for the need or justification
for additional compensation.'' That thought seems to contradict a
statement that he made in a letter dated 7 November 1999 and addressed
to the Chairman of the Nuclear Claims Tribunal:
I understand from Mr. Mauro that the NCT now wants to depend
on the data of the Nationwide Radiological Study for their use
in making additional claims to the U.S. Government. It is
nonsensical for the Marshall Islands Government to reject the
data on one hand, and on the other to use it as the basis for
additional compensation requests. If that were to happen, I
would have no misgivings about testifying to the U.S. Congress
against such a practice.
That communication from Dr. Simon was prompted by a call to him
from Dr. John Mauro of S. Cohen & Associates, who inquired about the
availability of the detailed measurements from the Nationwide
Radiological Study (NWRS). Dr. Mauro sought that data in order to
determine the need for and to estimate the cost of radiological cleanup
and remediation in connection with a claim before the Tribunal.
In earlier letters to the Tribunal Chairman dated 14 November 1995
and 30 April 1996, Dr. Simon had offered to provide a report containing
all of the radiological data collected by the Nationwide Radiological
Study. In both of those letters, he proposed that the Tribunal pay
$4,000 for the time spent by him and his assistant in producing the
report plus nominal printing costs. At those times, however, neither
the Tribunal itself nor any claimants before it had an immediate need
for the data so no further communication transpired until Dr. Mauro's
inquiry.
In response to that inquiry, Dr. Simon's November 1999 letter to
the Tribunal put forth the following demands in order to provide the
data:
1. The NCT petitions the RMI national government to formally
accept the findings of the Nationwide Radiological Study and
provides to me adequate written proof of its acceptance, and
2. the NCT provides payment to me in the amount of $25,000.
Those demands seem to contradict the comment in Dr. Simon's written
statement to the Committee that ``Findings of publicly funded
scientific investigations should be published and the information made
available.''
Dr. Simon is to be commended for the large body of data collected
by the Nationwide Radiological Study. He is also to be commended for
his altruism in going ``to great effort to publish the findings of the
NWRS without any salary or financial support'' in the July 1997 special
issue of the journal Health Physics devoted to the consequences of
nuclear testing in the Marshall Islands between 1946 and 1958.
To my understanding, however, he is misinformed when he states that
``The Marshall Islands Government, for reasons never apparent to me,
tried to stop publication of that issue.'' To my knowledge, the facts
regarding that special issue are as follow:
The U.S. Department of Energy contributed financial support
to get the issue published and/or disseminated on a wide basis.
The normal practice is for the author's organization to pay for
publication costs. However, given that Dr. Simon was no longer
affiliated with the RMI, it is understood that he sought
funding from DOE in order to publish his findings.
In late April 1997, the RMI embassy contacted the Health
Physics Journal and learned from Managing Editor Mr. Leland
Perry that the special issue had been sent to the printer and
that $10,000 had been contributed by DOE to finance the
publication and was ``looking for more funding'' to contribute.
When advised that there were ongoing contract and property
disputes between Dr. Simon and the RMI government, Mr. Leland
referred the call to his superior, Dr. Kenneth Miller. Dr.
Miller stated that he was also unaware of Dr. Simon's
controversial association with the Marshall Islands.
This unfortunate situation resulted in U.S. Representative
Robert Underwood writing a letter to then Secretary of Energy
Frederico Pena requesting that he consider withholding
publication of the special issue because Dr. Simon ``may not be
dispassionate in his research.''
Since Dr. Simon left the Marshall Islands in 1995, hundreds of
documents relating to the nuclear testing program have been
declassified. Review and analysis of many of those documents by
independent experts have raised serious questions regarding the
reliability of earlier dose reconstructions and, as an obvious
consequence, about the extent to which the damages caused by the
testing program had been understood previously. Much more remains to be
done.
______
Kirkpatrick & Lockhart Nicholson Graham,
Washington, DC, July 15, 2005.
Hon. Pete V. Domenici,
Chairman, Senate Committee on Energy and Natural Resources, Dirksen
Senate Office Building, Washington DC.
Dear Mr. Chairman: Enclosed please find a report I prepared and
submitted to the government of the Republic of the Marshall Islands
(``RMI'') in January of 2003, entitled ``The Nuclear Claims Tribunal of
the Republic of the Marshall Islands: An Independent Examination and
Assessment of Its Decision-Making Processes.'' * At that time I
provided copies of the report to congressional committees for general
informational purposes, but the RMI Embassy has requested that I submit
it to you specifically in connection with the hearing scheduled before
your Committee on July 19.
---------------------------------------------------------------------------
* Retained in committee files.
---------------------------------------------------------------------------
In June 2002, I agreed to undertake an evaluation of the Nuclear
Claims Tribunal (NCT), which the RMI legislature created pursuant to
the Section 177 Agreement between the RMI and the United States,
because I was convinced the RMI government sincerely wanted an
impartial and objective assessment of the NCT and its processes for
adjudicating claims seeking compensation for personal injuries and
property damages suffered as a consequence of the U.S. nuclear testing
program that took place in the Marshall Islands during the middle of
the twentieth century. In my meeting with RMI President Kesai Note
prior to accepting this project, it became clear to me that the RMI
wanted what amounted to a ``reality check'' on whether the NCT's awards
merited respect by the U.S. Congress. The report that I prepared, and
that I have enclosed, represents my best effort to provide an
independent examination and assessment for that purpose.
Consistent with the need for this to be commissioned as a truly
independent project, the fees and expenses incurred by my law firm in
connection with our research, analysis and preparation of the report
were paid before the contents, findings and conclusions of the report
were revealed to RMI officials.
My conclusions are set forth in the report's executive summary.
Simply stated, the report finds that the NCT fulfilled the basic
functions for which it was created in a reasonable, fair and orderly
manner, and with adequate independence, based on procedures, closely
resembling legal systems in the United States, that are entitled to
respect. Further, based on our examination and analysis' of the NCT's
processes, and our understanding of the dollar magnitude of the awards
that resulted from those processes, it is my judgment that the $150
million trust fund initially established in 1986.by Section 177 of the
Compact of Free Association between the RMI and the United States is
manifestly inadequate to fairly compensate the inhabitants of the
Marshall Islands for the damages they suffered as a result of the U.S.
nuclear tests that took place in their homeland.
In support of the Committee's oversight of these important issues,
I respectfully request that you include the executive summary from our
report and other relevant portions, as you deem appropriate, in the
record of the hearing and that the entire report be made available to
Committee Members and staff.
Sincerely,
Dick Thornburgh.
______
Stastement of Ismael John, Senator, Nitijela of the Marshall Islands
and Jackson Ading, Mayor of Enewetak Atoll
Mr. Chairman and distinguished members of this Committee:
Thank you for providing this opportunity to the people of Enewetak
to describe issues that relate to the challenges we face as the only
population ever resettled on a nuclear test site.
Our statement is intended to supplement the joint four atoll
statement submitted by Jonathan Weisgall on behalf of the four atolls
of Bikini, Enewetak, Rongelap and Utrok. We will not directly address
the issues described in that joint statement; rather, we offer a
perspective on our unique experiences which resulted from the use of
our land for nuclear testing and what needs to be done so that we
become once again self-reliant and self-sufficient.
As you know, our ancestral homeland, Enewetak Atoll, was the site
of forty-three of the sixty-six nuclear tests conducted by the United
States in the Marshall Islands between 1946 and 1958. One of the tests
at Enewetak was especially significant as it was the first test of a
hydrogen bomb. This test occurred on October 31, 1952 and was known as
the ``Mike'' test. The test had a yield of 10.4 megatons (750 times
greater than the Hiroshima bomb). The destructive power of the Mike
test was exceeded only by the Bravo test (15 megatons) in all the
nuclear tests conducted by the United States anywhere. The Mike test
vaporized an island, leaving a crater a mile in diameter and 200 feet
deep. The Mike test detonation and the detonation of the other 42
nuclear devices on our land resulted in the vaporization of over 8% of
our land and otherwise devastated our atoll. The devastation is so
severe that to this day, forty-seven years after the last nuclear
explosion, over half of our land and all of the lagoon remain
contaminated by radiation. The damage is so pervasive that we cannot
live on over 50% of our land. In fact, we can't even live on any part
of our land without the importation of food.
How was it that the most powerful country on earth used our land
for its nuclear weapons tests? Well, the United States had full control
over the Marshall Islands after World War II, and it decided that
Enewetak Atoll would be a better nuclear test site than Bikini Atoll.
There was a problem however; we lived on that land and we owned that
land. In fact, it was the only land we ever owned. Generations after
generations of our ancestors worked the land, planted food crops, built
homes, and otherwise made the land productive. So, how could we be
removed?
The Untied States removed us from our homeland because it had the
power to do so. But, the U.S. recognized that we had rights and it had
responsibilities and obligations to us as a result of that removal.
These rights, responsibilities and obligations were described in
the memorandum attached to the Directive of President Harry Truman
providing for our removal from our land. President Truman's Directive
to the Secretary of Defense, dated November 25, 1947, reads as follows:
Dear Mr. Secretary:
You are hereby directed to effect the evacuation of the
natives of Eniwetok Atoll preliminary to the carrying out of
tests of atomic weapons early in 1948, and in accordance with
the enclosed memorandum addressed to me by the Chairman of the
Atomic Energy Commission.
Sincerely yours, Harry S. Truman
The memorandum attached to President Truman's Directive described
the rights we had and the responsibilities and obligations to us
assumed by the United States. The memorandum reads in relevant part as
follows:
1. They will be accorded all rights which are the normal
constitutional rights of the citizens under the Constitution,
but will be dealt with as wards of the United States for whom
this country has special responsibilities.
2. The displacement of local inhabitants will be kept to a
minimum required for their own safety and well being and will
not be accomplished merely for considerations of convenience.
3. The displacement of local inhabitants will be effected by
agreements reached with them regarding resettlement, including
fully adequate provisions for their well being in their new
locations.
The Atomic Energy Commission and the Secretary of Defense
will undertake to supply to the State Department evidence
sufficient to demonstrate in an international forum that in
conducting such experimentation in Eniwetok, the United States
is not thereby subjecting the local inhabitants of the Trust
Territory of the Pacific to perceptibly greater danger than,
say, the people of the United States.
In a dispatch from Admiral Ramsey, the Chief of Naval Operations,
dated 5 December 1947, our rights and the responsibilities and
obligations of the United States were summarized as follows:
Pursuant to orders from the President the Secretary of
Defense has directed SECNAV to effect the evacuation of the
natives of Eniwetok.
In recommending this action the Atomic Energy Commission
stated that the inhabitants of the Atoll would be accorded the
normal constitutional rights accruing to U.S. citizens under
the Constitution and treated as wards of the United States; and
that adequate provision would be made for them in their new
location.
So, the U.S. recognized that we had constitutional rights. That
means that we, as the owners of property used by the U.S., were
entitled to just and adequate compensation for the use and damage of
our land.
In addition, we were promised that we would be taken care of while
exiled from Enewetak and that we would be placed in no greater danger
than the people of the U.S.
None of these promises were kept by the U.S.: We were not taken
care of during our 33 year exile from Enewetak; we were placed in
greater danger than people in the U.S.; and we have yet to receive the
just and adequate compensation to which we are entitled under the
Constitution.
To better understand these unkept promises, we believe that it is
useful to review the history of the use of Enewetak by the United
States, our experiences as a result that use, the effect of that use on
us and our land, and the unfinished obligations of the U.S.
u.s. use of enewetak from 1947 to 1980
The U.S. used Enewetak for a variety of purposes between 1947 and
1980. U.S. use consisted of nuclear weapons testing, intercontinental
ballistic missile testing, high energy rocket testing, cratering
experiments, the study of marine biology, and radiological remediation
and soil rehabilitation efforts.
Nuclear Weapons Testing. The U.S. Department of Energy described
the devastating effects of the 43 nuclear tests on Enewetak as follows:
The immense ball of flame, cloud of dark dust, evaporated
steel tower, melted sand for a thousand feet, 10 million tons
of water rising out of the lagoon, waves subsiding from a
height of eighty feet to seven feet in three miles were all
repeated, in various degrees, 43 times on Enewetak Atoll.
About 8% of the land mass of the atoll was vaporized, numerous
nuclear bomb craters doted the land mass, and much soil and most
vegetation was either removed or severely disturbed. In addition to
such physical damage, the testing left most of the atoll contaminated
by radiation.
Intercontinental Ballistic Missile Testing. During the 1960's,
Enewetak was the target and impact area for tests of Intercontinental
Ballistic Missiles fired from Vandenberg Air Force Base in California.
High Energy Upper Stage (HEUS) Rocket Tests. In 1968 and 1978, two
test firings of a developmental HEUS rocket motor were conducted on
Enjebi Island. The rocket motors tested each contained 2,500 pounds of
propellant of which 300 pounds was beryllium. Beryllium is toxic to man
when inhaled and lodged in the lungs. The first test, in April 1968,
resulted in an unexpected explosion which scattered propellant,
including beryllium, over the western tip of Enjebi. The second test in
January 1970 fired successfully scorching the land but did not result
in an explosion.
Pacific Cratering Experiments. This program occurred in the 1970's
and involved the detonation of charges of high explosives to provide a
means of predicting the impact of nuclear detonations upon strategic
defense installations. This resulted in twelve detonations of 1,000
pound charges, drilling of over 190 holes into various islands of the
atoll from 200 feet to 300 feet in depth, movement of 185,000 cubic
yards of soil, and the digging of 86 trenches on various islands each 7
feet deep.
Marine Biology Research Laboratory. The laboratory began operations
in 1954 under the auspices of the Division of Biology and Medicine of
the U.S. Atomic Energy Commission. Research supported by the laboratory
was chosen by an advisory committee which evaluated written proposals
concerning a broad spectrum of marine and terrestrial science. This
activity continued into the early 1980's.
Radiological Remediation and Resettlement Activities. The United
States undertook a radiological remediation and resettlement program
that took place from 1977 to 1980. Unfortunately, this effort left half
the atoll contaminated, left the habitable parts without vegetation or
topsoil, prevented the Enjebi island members of our community from
resettling on their land in the northern part of the atoll, left the
lagoon contaminated with plutonium, left a concrete waste storage site
filled contaminants radioactive for thousands of years, and left the
heavily contaminated island of Runit without any radiological
remediation whatsoever.
While this use of Enewetak was going on, we lived on Ujelang Atoll.
removal to ujelang atoll
A few days before Christmas in 1947, the U.S. removed us from
Enewetak to the much smaller, resource poor, and isolated atoll of
Ujelang. We were told by the U.S. that our removal would be for a short
time. In fact, Captain John P. W. Vest, the U.S. Military Governor for
the Marshall Islands told us that our removal from Enewetak would be
temporary and last no more than three to five years. Unfortunately, we
were exiled on Ujelang for a period of over thirty-three years.
hardship on ujelang
The exile on Ujelang was particularly difficult for us leading to
hopelessness and despair. During the 33 year exile on Ujelang we
endured the suffering of near starvation. We tried to provide food for
ourselves and our children, but one meal a day and constant hunger was
the norm. Malnutrition caused illness and disease. Children and the
elderly were particularly vulnerable. Health care was woefully
inadequate. In addition, our children went largely uneducated in the
struggle for survival. We became so desperate that in the late 1960's
we took over a visiting government field-trip ship, demanding that we
be taken off of Ujelang and returned to Enewetak.
Our suffering and hardship while on Ujelang was eventually
acknowledged by the US. The U.S. Department of Interior in a letter to
the President of the US Senate dated January 14, 1978 said in relevant
part:
The people of Enewetak Atoll were removed from their home
atoll in 1947 by the US. Government in order that their atoll
could be used in the atomic testing program. The people were
promised that they would be able to return home once the U.S.
Government no longer had need for their islands.
During the thirty years that the Enewetak people have been
displaced from their home atoll they have suffered grave
privations, including periods of near starvation, in their
temporary home on Ujelang Atoll. The people have cooperated
willingly with the US. Government and have made many sacrifices
to permit the United States to use their home islands for
atomic testing purposes.
The physical difficulties experienced on Ujelang were made more
difficult by the loss of our ancestral homeland. We have close ties to
our land. These close ties were forged by centuries of making a life on
our land. Our ancestors worked the soil and nurtured the plants. We
buried our dead on our land. We feel that we are a part of the land and
it is a part of us. Our connection with our land is spiritual in
nature. It is something of great meaning because it was the one place
in the world given to us by God. And this was taken away from us
causing us to live lives of hardship, neglect, and isolation on
Ujelang. It is no surprise that after years of hardship, neglect and
isolation we became increasingly insistent that we be returned home.
Eventually, the U.S. said it would attempt to make our homeland
habitable.
initial cleanup attempt of enewetak atoll
In 1972, the U.S. said that it would soon no longer require the use
of Enewetak. The U.S. recognized that the extensive damage and residual
radiation at Enewetak would require radiological cleanup, soil
rehabilitation, housing and basic infrastructure before we could
resettle Enewetak. An extensive cleanup, rehabilitation and
resettlement effort was undertaken between 1977 and 1980.
Unfortunately, the cleanup left over half of the land mass of the
atoll contaminated by radiation confining us to the southern half of
the atoll. This has prevented the Enjebi island members of our
community from resettling their home island, and has prevented us from
making full and unrestricted use of our atoll. In addition, the cleanup
and rehabilitation was not effective in rehabilitating the soil and
revegetating the islands. An extensive soil rehabilitation and
revegeatation effort is still required to permit the growing of food
crops. The cleanup also left us with a radioactive waste site on the
island of Runit. Over 110,000 cubic yards of radioactive waste, which
consist of radiation contaminated dirt scrapped off the islands, are
stored in a nuclear test-created crater on Runit Island.
enewetak claims in the u.s. claims court
When we resettled on the southern half of our atoll, we recognized
that the land required further restoration (radiological remediation,
soil rehabilitation, and revegetation), that the Enjebi island members
of the Enewetak community needed to be resettled on their home island,
and that we were never adequately compensated for the loss of use of
our land and the hardships we endured during our exile. To accomplish
restoration, resettlement of the northern islands, and to be justly
compensated for the 33 years we were denied use of our land, we filed
an action against the U.S. for damages in the U.S. Claims Court in
1982.
In addition to the Enewetak lawsuit, thirteen other lawsuits were
filed in the U.S. Claims Court by our fellow Marshall Islanders seeking
compensation from the U.S. for damages as a result of the nuclear
testing program.
After the Compact of Free Association went into effect, the U.S.
moved to dismiss our claims. We opposed dismissal on several grounds,
most notably on the ground that the compensation provided under the
Compact was inadequate and did not constitute just compensation under
the Constitution. In 1987, the Claims Court dismissed these cases
holding that it lacked subject matter jurisdiction over these claims
because the consent of the U.S. to be sued on those claims had been
withdrawn by Congress pursuant to the Compact and in conjunction with
the establishment of a Marshall Islands Claims Tribunal to provide just
compensation. The Claims Court recognized that the adequacy of the
amount provided to claimants under the Compact was yet to be determined
by the Claims Tribunal
enewetak claims in the marshall islands nuclear claims tribunal
After our claims were dismissed by the U.S. courts, the only forum
available to hear our just compensation claims was the Nuclear Claims
Tribunal. Our claims before the Tribunal were for the loss of use of
our land, for the costs to restore our land to a condition of full and
unrestricted use, and for the hardship and suffering we endured while
in exile on Ujelang. The evidence presented to the Tribunal on these
three categories of damages is summarized and briefly described below:
1. Loss of Use. Enewetak Atoll is private property. The use of such
private property by the United States was temporary. We are entitled to
compensation for the loss of use, occupancy and enjoyment of the entire
atoll from the period 1947 to 1980, plus loss of use, occupancy and
enjoyment of those portions of the atoll which remain unavailable from
1980 until the people once again have full use of those portions. Loss
of use was computed by two different appraisal firms in Honolulu,
Hawaii each of whom has substantial experience in valuations of Pacific
island properties. The appraisers utilized a market comparison
approach. Loss of use was computed on the basis of estimated historical
annual rents plus interest. Subtracted from this loss of use was the
prior compensation received by us under the Compact and other payments
received plus the use value of Ujelang for the period 1947 to 1980. The
net loss of use amounted to an award of $244 million.
2. Cost to restore. Over half the land area (approximately 1000
acres) of Enewetak atoll remains unavailable for full use because of
radiation contamination. In addition, all the land of the atoll was
severely damaged as a result of the weapons tests, bulldozing and
scrapping activities both before and after each of the tests, the
construction of support facilities (concrete building pads, asphalt
runways and roads), and the scrapping and soil removal activities of
partial cleanup that occurred between 1977 to 1980. Also, it must be
noted that our community consists of two groups. One group, the people
of Enjebi Island, has not been able to resettle their island because it
remains contaminated. We argued that the construction of housing and
necessary infrastructure is another element of the cost to restore
damages. Thus, we argued that cost to restore can be best described as
those costs necessary to accomplish three objectives: remediation of
radiologically contaminated land, soil and plant rehabilitation and
restoration, and resettlement of Enjebi Island.
a. Radiological remediation: The Nuclear Claims Tribunal of the
Republic of the Marshall Islands in its ruling of December 21, 1998
adopted the U.S. standard of 15 millirems per year for cleanup of
radiation contaminated land. The rationale for the adoption of the
standard was that the Marshallese people are entitled to the same level
of protection from radioactive contamination created by the U.S.
nuclear weapons and testing program as is provided to U.S. citizens.
This rationale is consistent with a guidance issued by the
International Atomic Energy Agency which states:
As a basic principle, policies and criteria for radiation
protection of populations outside national borders from
releases of radioactive substances should be at least as
stringent as those for the population within the country of
release.
The rationale is also consistent with the declaration of the U.S.
made in 1947, and contained in the memorandum described above, which
states:
[I]n conducting such experimentation in Eniwetok, the United
States is not thereby subjecting the local inhabitants of the
Trust Territory of the Pacific to perceptibly greater danger
than, say, the people of the United States.
Although the establishment of a cleanup standard is necessary, the
next question is how to effect the necessary radiological remediation.
To answer that question, we asked the firm of Sanford Cohen &
Associates, Inc. (SC&A) to research, evaluate and describe the
following: (1) the current radiological conditions at Enewetak, (2) the
current doses and health risks to the people of Enewetak if one were to
do no cleanup using U.S. methodologies, (3) collective health impacts
under various remedial alternatives, (4) cleanup alternatives to permit
full use of the land using U.S. standards, and (5) the costs of such
alternatives. SC&A provided a thorough two volume report addressing the
above. In addition, Dr. John Mauro and Dr. Hans Behling, the principal
authors of the SC&A report, testified before the Nuclear Claims
Tribunal addressing all aspects of the report. After analyzing 30
different cleanup options, Drs. Mauro and Behling recommended an
approach ``consisting of a combination of soil removal and application
of potassium to soil as an integral part of a self-sustaining,
agricultural rehabilitation program.'' The total cost of the
recommended remediation strategy was estimated at $100 million.
b. Soil and Plant Rehabilitation. All of the land of Enewetak was
severely damaged as a result of the nuclear testing program. What was
once a productive atoll providing food and sufficient surplus
production for export of coconut products, became a land with soil
devoid of any nutrients unable to support food bearing plants. This
removal of the rich atoll topsoil was the result of the nuclear tests,
the pre-test and post-test activities that involved the bulldozing and
clearing of land and laying of asphalt on the land; the construction of
support facilities to provide housing, infrastructure, runways, roads,
buildings, etc.; the bulldozing, clearing, scrapping and soil removal
activities of the 1977-80 partial cleanup. These activities devastated
the ecology of Enewetak Atoll. The dark rich organic matter that takes
centuries to build up to levels of two to four feet in depth was gone.
Food bearing plants could not survive in such an environment. An
agriculture program was initiated after the 1977-80 cleanup. However,
that program only recently initiated an effective soil and plant
rehabilitation method. The method requires the digging of ditches and
the placing of layers of organic matter in the ditches along with a
chicken manure and copra cake compost. This is followed by the planting
of both food bearing plants and salt and wind spray protecting plants.
This is a very labor intensive program. All of the land in the northern
part of the atoll requires such full rehabilitation, including long-
term monitoring, nurturing, and routine applications of potash, biomass
and manure. The cost of such full rehabilitation was estimated at
$29,000 per acre. The southern islands of the atoll require similar
although less intensive rehabilitation, because of some prior
rehabilitation and because of the recent implementation of a more
effective rehabilitation program on those islands. The total cost for
soil and plant rehabilitation of all the islands of the atoll was
estimated at $18 million.
c. Resettlement Costs. As described above, one group of our
community, the people of Enjebi Island have not been able to return to
their home island. Enjebi was ground zero for a number of tests. In
addition, it underwent bulldozing, scrapping and soil removal during
the 1977-80 partial cleanup activities. In order to make the island
habitable again, the radiological remediation and soil and plant
rehabilitation described above are required. In addition, the people
require the housing, infrastructure, and other buildings necessary to
permit them to live on the island while the rehabilitation is ongoing.
The housing, rehabilitation support buildings, infrastructure, and
community center, are consistent with resettlement housing, buildings,
and infrastructure currently underway for the communities of Bikini and
Rongelap. Enjebi Island was estimated at $30 million. In addition, the
housing on Enewetak, Medren, and Japtan islands constructed during the
1977-80 partial cleanup requires upgrades, and the islands require
infrastructure such as power and water, to make the living conditions
consistent with those currently underway for Bikini and Rongelap. The
cost for such upgrades was estimated at $20 million. The above-
described resettlement costs were developed by Mr. Earl Gilmore of
E.P.G. Corporation, a construction consultant, who has extensive
experience and expertise in construction costs in the Marshall Islands.
The Tribunal did not award any resettlement costs saying that such
costs should be paid from the loss of use portion of the award.
3. Consequential or Hardship Damages. As described above, we
suffered greatly during our exile on Ujelang atoll. From the very
beginning, we were told that our removal from Enewetak would be
temporary and that they would be taken care of on Ujelang.
Neither event occurred. The exile from Enewetak lasted for a period
of thirty-three years and the U.S. failed to take care of us while we
were on Ujelang.
Unfortunately, the hardships and sufferings did not end with our
return to Enewetak in 1980. The severe damage to the land, the residual
radiation contamination on over half the land of the Atoll, the
inability to resettle Enj ebi, the inability to grow adequate food
crops for local consumption, the inability to use our land for
productive economic purposes, the required reliance on canned imported
foods, all continued to cause difficulty and hardship.
We believe that these past and continuing hardships deserve
compensation in addition to compensation for loss of use and cost to
restore. This Congress has had occasion to address compensation for the
relocation of other peoples. For example, in 1988 the Congress enacted
the Civil Liberties Act, Pub. L. 100-383 to compensate (1) the persons
of Japanese ancestry living in the U.S. who were forcibly relocated to
internment camps from March 1942 to January 1946; and (2) the Aleutian
islanders who were relocated from their home islands during and after
World War II. The range of hardships damages per year can be calculated
as between $7,000 per year per person to $10,000 per year per person.
We argued that such and other comparisons demonstrate that the Enewetak
people should receive $10,000 per year for each of the years they lived
on Ujelang.
The Tribunal awarded $4,500 per year per person resident on Ujelang
for 16 of the most difficult years; and $3,000 per year per person
resident on Ujelang for the remaining 17 years.
nuclear claims tribunal award to the enewetak people
The Total award to for damages we suffered as a result of the
nuclear testing program is $386 million. This includes the original
award of $325 million plus an amendment to include $16 million for soil
rehabilitation and revegetation that was inadvertently omitted from the
original award, and a subsequent amendment to include $45 million for
interest at the rate of 7% per annum on the past loss of use portion of
the award to the date of the award.
To summarize, the Tribunal awarded the following as full and just
compensation:
Millions
1. Cost to restore:....................................... $108
2. Loss of Use:........................................... $244
3. Hardship:.............................................. $34
______
Total................................................... $386
Unfortunately, the Tribunal does not have the money to pay the
award.
conclusion
Although the $386 million award is a significant amount, it is only
a fraction of the amount that was expended to create the damage at
Enewetak. It is also a fraction of the amount necessary to cleanup
sites in the U.S. contaminated as a result of the nuclear weapons
testing program. The U.S. DOE recently revised its cleanup estimates
upwards to $168 billion to $212 billion for the cleanup of U.S. sites
contaminated as a result of the nuclear weapons testing program.
It is also noteworthy that a few years ago the U.S. Congress
appropriated over $400 million for the cleanup of Kahoolawe Island, yet
that site is affected by material that is non-nuclear and non-toxic.
The citizens of the U.S. benefited greatly by having the nuclear
testing conducted far from the U.S. mainland thereby avoiding the
damaging health and environmental consequences of radioactive fallout.
Enewetak's land, lagoon and reef were sacrificed for the benefit of the
people of the United States. We bore, and continue to bear, the burden
of a damaged and radiation-contaminated homeland. We also endured
suffering and hardship the consequences of which continue to affect our
community to this day. The U.S. accepted responsibility for the damages
it caused at Enewetak, and it agreed that the Tribunal was to determine
just compensation. It has done so. Now the award must be addressed.
Fairness and justice require that the Tribunal award of $386 million be
addressed by the U.S. Congress.
The award could be addressed by funding it through the Changed
Circumstances Petition process that has been presented to the Congress.
Alternatively, the Congress could direct the U.S. Court of Appeal for
the Federal Circuit to review and certify, or to reject in whole or in
part, the award of the Tribunal similar to an existing Congressional
provision that deals with judgments of the Marshall Islands courts
against the U.S. arising from its administration of the Marshall
Islands under the U.N. Trusteeship.
Funding of the award would permit us to rid our land of
radiological contamination, rehabilitate the soil, re-vegetate the
land, resettle the Enjebi people on their home island, and provide the
means by which we could establish a local economy in the fishing and
tourism sectors. The funding would permit us to once again become self-
reliant and self-sufficient.
It is only by addressing the award that the U.S. can satisfy its
obligations to us that were so clearly described in the memorandum
attached to President Truman's directive removing us from Enewetak and
causing use of our atoll for nuclear weapons testing.
Thank you for permitting us to submit this statement.
______
Statement of Jonathan M. Weisgall on Behalf of the Peoples of Bikini,
Enewetak, Rongelap and Utrok
i. introduction
Mr. Chairman, thank you for giving the peoples of the four atolls
of Bikini, Enewetak, Rongelap and Utrok the opportunity to testify on
issues relating to the changed circumstances petition contained in the
Compact of Free Association. I have served as legal counsel to the
people of Bikini Atoll since 1974, but I am submitting this joint
statement on behalf of the four atolls that were most directly affected
by the U.S. nuclear testing program in the Marshall Islands.
For decades, Congress has recognized and addressed the special
needs of the peoples of the four atolls, and we are pleased to submit
our written testimony to supplement the oral testimony of Utrok's
Senator Hiroshi Yamamura in order to make this hearing record more
complete, especially with respect to factual and legal issues involving
the Compact Section 177 Agreement.
Our issue is simple: We all filed lawsuits against the United
States in the 1980s for the property damage inflicted on our atolls
and, in some cases, for personal injuries as well. Those claims were
dismissed by U.S. courts as part of the overall Compact Section 177
Agreement, pursuant to which the United States and the Republic of the
Marshall Islands (RMI) governments established the Nuclear Claims
Tribunal to hear these claims. The Tribunal has made awards to the
peoples of Bikini and Enewetak, and will issue ones soon to Rongelap
and Utrok, but it lacks the funds to pay any of these awards.
Those lawsuits are property rights protected by the takings clause
of the Fifth Amendment to the U.S. Constitution, which has been found
to apply to the Marshall Islands. Under well established Supreme Court
decisions going back to 1890, Congress has every right to close the
doors of U.S. courts to lawsuits and take away those property rights as
long as it provided for an alternative method of compensation and
provided that at the time of the taking there is ``reasonable, certain
and adequate provision for obtaining compensation.'' \1\
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\1\ Blanchette v. Connecticut General Insurance Corp., 419 U.S.
102, 124-25 (1974), quoting Cherokee Nation v. Southern Kansas Railroad
Co., 135 U.S. 641, 659 (1890).
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The Tribunal has paid out less than one-half of one percent of
these judgments because it lacks the necessary funds. For the United
States to throw these lawsuits out of U.S. courts, to establish such a
Tribunal to resolve these claims, and then to fail to fund the Tribunal
adequately constitutes a taking under the Fifth Amendment of the
nuclear victims' property, makes the establishment of the Tribunal a
hoax, makes a mockery of the Compact, and arguably renders the Compact
null and void.
The executive branch of the U.S. Government refused to negotiate
with the RMI on this issue in the recent Compact talks. There is a
clear and simple solution to the problem if Congress is willing to
implement it. If not, the four atolls will have no choice but to return
to court to continue what in some cases has been more than a 30-year
history of suing the United States to force it to own up to the damage
it caused to the citizens of the Marshall Islands in the course of
spending trillions of dollars to win the Cold War.
ii. background on nuclear testing program in the marshall islands
In the 12-year period from 1946-1958, after moving the peoples of
Bikini and Enewetak off their atolls, the United States conducted 67
atomic and hydrogen atmospheric bomb tests there, with a total yield of
108 megatons. This is 98 times greater than the total yield of all the
U.S. tests in Nevada. Put another way, the total yield of the tests in
the Marshall Islands was equivalent to 7,200 Hiroshima bombs. That
works out to an average of more than 1.6 Hiroshima bombs per day for
the 12-year nuclear testing program in the Marshalls. During these
years, the Marshall Islands was a United Nations Trust Territory
administered by the United States, which had pledged to the United
Nations to ``protect the inhabitants against the loss of their land and
resources.'' \2\
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\2\ Trusteeship Agreement for the Former Japanese Mandated Islands,
61 Stat. 3301, 80th Cong., 1st Sess. (1947), Art. 6, Sec. 2.
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Radioactive fallout from one of those tests--the March 1, 1954
Bravo shot at Bikini--drifted in the wrong direction and irradiated the
236 inhabitants of Rongelap and Utrok Atolls as well as the crew of a
Japanese fishing vessel. Bravo, the largest U.S. nuclear test in
history with an explosive force equal to nearly 1,000 Hiroshima-type
atomic bombs, touched off a huge international controversy that
eventually led to the U.S. moratorium on atmospheric nuclear testing
and the U.S.-U.S.S.R. Limited Nuclear Test Ban Treaty.\3\ President
Eisenhower told a press conference that U.S. scientists were
``surprised and astonished'' at the test, and a year later the Atomic
Energy Commission (AEC) admitted that about 7,000 square miles downwind
of the shot ``was so contaminated that survival might have depended
upon prompt evacuation of the area. . . .'' \4\ Put another way, if
Bravo had been detonated in Washington, DC, and the fallout pattern had
headed in a northeast direction, it would have killed everyone from
Washington to New York, while near-lethal levels of fallout would
stretch from New England to the Canadian border.\5\
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\3\ See, e.g., Peter Pringle and James Spigelman, The Nuclear
Barons (Holt, Rinehart and Winston 1981) pp. 243-59.
\4\ New York Times, March 25, 1954, pp. 1, 18.
\5\ Jonathan M. Weisgall, Operation Crossroads: The Atomic Tests at
Bikini Atoll (Naval Institute Press 1994), pp. 304-05.
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The statistics 59 years after testing began:
The Bikinians have been exiled from their homeland since
1946, except for a brief period after President Johnson
announced in 1968 that Bikini was safe. Many of the islanders
returned and lived there until 1978, when medical tests by U.S.
doctors revealed that the people had ingested what may have
been the largest amounts of radioactive material of any known
population, and the people were moved off immediately. It
turned out that an AEC scientist made a careless mathematical
error, throwing off by a factor of 100 the radioactive dose the
returning Bikinians would receive. ``We just plain goofed,''
the scientist told the press.\6\
---------------------------------------------------------------------------
\6\ Los Angeles Times, July 23, 1978, p. 3.
---------------------------------------------------------------------------
Approximately half the Enewetak population cannot return to
their home islands in the northern part of the atoll, where
radiation still renders the islands too radioactive. The Runit
Dome, containing over 110,000 cubic yards of radioactive
contaminants, remains on Enewetak Atoll.
At least four islands at Bikini and five at Enewetak were
completely or partially vaporized during the testing program.
Although they were over 100 miles from Bikini, the people of
Rongelap received a radiation dose from Bravo equal to that
received by Japanese people less than two miles from ground
zero at Hiroshima and Nagasaki. They suffered from radiation
poisoning, all but two of the nineteen children who were under
ten at the time of Bravo developed abnormal thyroid nodules,
and there has been one leukemia death.\7\ The people were moved
off the islands for three years after the Bravo shot, and they
moved off again in 1985 amid concerns about radiation dangers.
---------------------------------------------------------------------------
\7\ Edwin J. Martin and Richard H. Rowland, Castle Series (Defense
Nuclear Agency Report No. 6035F 1954), pp. 3, 235; Robert A. Conard et
al., A Twenty-Year Review of Medical Findings in a Marshallese
Population Accidentally Exposed to Radioactive Fallout (Brookhaven
National Laboratory 1974), pp. 59-76, 81-86).
---------------------------------------------------------------------------
The people of Utrok were returned to their home atoll a mere
three months after Bravo and were exposed to high levels of
residual fallout in the ensuing years. This unnecessary
exposure led to thyroid problems and other cancers.
The inhabitants of Rongelap and Utrok were the subjects of a
medical research program designed to understand the effects of
ionizing radiation, and they continue to suffer from radiation-
related diseases. Indeed, recent Department of Energy whole
body counting data has shown that the people living on Utrok
are still exposed to radioactive cesium-137.
iii. 1980s court cases and the compact
In the 1980s, the peoples of the four atolls and other Marshall
Islanders brought lawsuits against the United States for property and
other damages totaling more than $5 billion. During the litigation, the
U.S. and RMI governments signed the Compact and the subsidiary Section
177 Agreement, which established a $150 million Nuclear Fund, income
from which was earmarked for the peoples of the four atolls ``as a
means to address past, present, and future consequences of the Nuclear
Testing Program.'' \8\ Income was also earmarked to fund a Nuclear
Claims Tribunal, which was established with ``jurisdiction to render
final determination upon all claims past, present and future, of the
Government, citizens, and nationals of the Marshall Islands which are
based on, arise out of, or are in any way related to the Nuclear
Testing Program.'' \9\
---------------------------------------------------------------------------
\8\ Compact Section 177 Agreement, Article I, Section 2.
\9\ Id., Article IV, Section 1(a).
---------------------------------------------------------------------------
The Section 177 Agreement also provides that it constitutes the
full settlement of all claims, ``past, present and future,'' of
Marshall Islanders and their government against the United States
arising out of the testing program, and another section provides that
all such claims pending in U.S. courts are to be dismissed.\10\
---------------------------------------------------------------------------
\10\ Id., Articles X and XII.
---------------------------------------------------------------------------
Faced with these provisions, Judge Harkins of the U.S. Claims Court
dismissed the nuclear cases after the Compact went into effect, but he
emphasized that ``in none of these cases has Congress abolished
plaintiffs' rights. The Compact recognizes the United States
obligations to compensate for damages from the nuclear testing program
and the Section 177 Agreement establishes an alternative tribunal [the
Nuclear Claims Tribunal] to provide such compensation.'' \11\ Judge
Harkins recognized the obvious point that Congress cannot close the
doors of U.S. courts to a constitutional taking claim unless it
provides for an alternative method of compensation.\12\ However, the
exercise of this power, as noted by the U.S. Supreme Court, is subject
to the overriding requirement that ``there must be at the time of
taking `reasonable, certain and adequate provision for obtaining
compensation.' '' \13\
---------------------------------------------------------------------------
\11\ Juda v. United States, 13 Cl.Ct. 667, 688 (1987). He repeated
this point later: ``Plaintiffs are not deprived of every forum. An
alternative tribunal to provide compensation has been provided.'' Id.
at 689.
\12\ As the noted constitutional scholar Gerald Gunther wrote,
``[A]ll agree that Congress cannot bar all remedies for enforcing
federal constitutional rights.'' Gunther, ``Congressional Power to
Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing
Debate,'' 36 Stan.L.Rev. 895, 921 n. 113 (1984).
\13\ Blanchette v. Connecticut General Insurance Corp., 419 U.S.
102, 124-25 (1974), quoting Cherokee Nation v. Southern Kansas Railroad
Co., 135 U.S. 641, 659 (1890).
---------------------------------------------------------------------------
A situation nearly identical to this one arose in Dames & Moore v.
Regan, in which the United States dismissed pending claims against Iran
under the agreement for the release of the U.S. hostages. The
plaintiff, which owned one of these claims, argued that the alternative
forum provided by that agreement, the U.S.-Iran Claims Tribunal, would
not provide ``reasonable, certain and adequate provision for obtaining
compensation,'' because its claim might not be paid in full. The
Supreme Court found that the Tribunal was an adequate alternative forum
and therefore upheld the agreement, noting, however, that the Claims
Court remained open ``to the extent petitioner believes it has suffered
an unconstitutional taking by the suspension of the claims.'' \14\
---------------------------------------------------------------------------
\14\ 453 U.S. 654, 689 (1981).
---------------------------------------------------------------------------
Applying this same standard, Judge Harkins found that the
``settlement procedure, as effectuated through the Section 177
Agreement, provides a `reasonable' and `certain' means for obtaining
compensation.'' However, he was not so sure about whether the procedure
would provide adequate funding: ``Whether the compensation in the
alternative procedures . . . is adequate is dependent upon the amount
and type of compensation that ultimately is provided through these
procedures.'' In essence, he imposed an ``exhaustion of remedies'' test
for the claimants: Because the Nuclear Claims Tribunal was not yet in
existence, he held that ``[w]hether the settlement provides `adequate'
compensation cannot be determined at this time. . . . This alternative
procedure for compensation cannot be challenged judicially until it has
run its course.'' \15\
---------------------------------------------------------------------------
\15\ Juda v. United States, supra, 13 C1.Ct. at 689.
---------------------------------------------------------------------------
On appeal, the U.S. Court of Appeals for the Federal Circuit
reached a similar conclusion: ``Congress intended the alternative
procedure [the Nuclear Claims Tribunal] to be utilized, and we are
unpersuaded that judicial intervention is appropriate at this time on
the mere speculation that the alternative remedy may prove to be
inadequate.'' \16\
---------------------------------------------------------------------------
\16\ People of Enewetak, Rongelap and other Marshall Islands Atolls
v. United States, 864 F.2d 134, 136 (Ct. App. Fed. Cir. 1988).
---------------------------------------------------------------------------
Seventeen years have passed since that court's decision, and
history has shown that the peoples of the four atolls were right: The
Nuclear Claims Tribunal has ``run its course,'' to use Judge Harkins'
phrase, and it cannot pay these claims. After lengthy trials, it
awarded $386 million to the people of Enewetak for loss of use,
restoration, and hardship, and $563 million to the people of Bikini,
but it has paid out less than one-half of one percent of these awards.
Unlike the Dames & Moore case, where the alternative system of relief--
the U.S.-Iran Claims Tribunal--was appropriate because it was ``capable
of providing meaningful relief,'' \17\ the remedy here was simply not
adequate.\18\
---------------------------------------------------------------------------
\17\ Dames & Moore, 453 U.S. at 687.
\18\ See also Justice Powell, concurring, id. at 691: ``The Court
holds that parties whose valid claims are not adjudicated or not fully
paid may bring a `taking' claim against the United States in the Court
of Claims, the jurisdiction of which this Court acknowledges. The
Government must pay just compensation when it furthers the Nation's
foreign policy goals by using as `bargaining chips' claims lawfully
held by a relatively few persons and subject to the jurisdiction of our
courts.''
---------------------------------------------------------------------------
iv. bona fides of the nuclear claims tribunal and size of its awards
Before discussing a possible Congressional solution to this
dilemma, it may be useful to address head-on two contentious questions:
First, was the Nuclear Claims Tribunal process valid or did the ``home
field'' advantage result in skewed and inflated awards? Second, how
should Congress deal with what some describe as the ``sticker shock''
of these awards?
As to the first question, we direct your attention to a May 20,
2005 letter to Chairman Pombo from former U.S. Attorney General Dick
Thornburgh, who conducted an independent investigation of the Nuclear
Claims Tribunal. ``Simply stated,'' Attorney General Thornburgh writes,
``the report finds that the [Nuclear Claims Tribunal] fulfilled the
basic functions for which it was created in a reasonable, fair and
orderly manner, and with adequate independence, based on procedures,
closely resembling legal systems in the United States, that are
entitled to respect.''
The Thornburgh report also concluded that property damage claims
before the Tribunal have been asserted through class action vehicles
similar to those used in the United States, with litigation
``characterized by the kind of legal briefing, expert reports, and
motion practice that would be found in many U.S. court proceedings,''
and hearing procedures and rules of evidence that resemble those used
in administrative proceedings in the United States.\19\
---------------------------------------------------------------------------
\19\ Dick Thornburgh et al., ``The Nuclear Claims Tribunal of the
Republic of the Marshall Islands: An Independent Examination and
Assessment of its Decision-Making Process'' (Kirkpatrick & Lockhart,
LLP 2003), p. 2.
---------------------------------------------------------------------------
As to the second issue--the amount of the Tribunal's awards--we
wish to bring the following points to the attention of this Committee:
The people of Bikini presented cleanup options that ranged
as high as $1 billion. The option selected by the Tribunal,
with a cost of just over $250 million, is the same cleanup
method recommended by the U.S. Department of Energy's
contractor, Lawrence Livermore National Laboratory.
These cleanup costs must be considered in the context of the
cost of the tests themselves. Defense Department costs for all
nuclear tests in the Marshall Islands exceeded $5.2
billion.\20\ Civilian costs are harder to calculate, but in
transferring its materials, facilities and properties to the
new AEC in 1946, the Manhattan Project spent $3.8 billion to
manufacture nine new atomic bombs and continue research.\21\
The AEC spent over $4.3 billion from July 1, 1946 through June
30, 1947,\22\ and from 1948-1958, the AEC spent nearly $130
billion on production research, development, and testing of
nuclear weapons.\23\
---------------------------------------------------------------------------
\20\ Stephen I. Schwartz, ed., Atomic Audit: The Costs and
Consequences of U.S. Nuclear Weapons Since 1940 (Brookings Institution
Press 1998), pp. 101-03. The dollar figures in this book, expressed in
1996 dollars, have been updated through 2004 using a cumulative
Consumer Price Index increase of 21.9% from 1996-2004. See http://
www.bls.gov/cpi/home.htm#tables.
\21\ Id. at 61-62.
\22\ Id. at 63.
\23\ Id. at 65-75.
---------------------------------------------------------------------------
The United States never questioned the cost or value of the
nuclear tests at Bikini and Enewetak, because they assured U.S.
nuclear superiority over the Soviet Union and led to immediate
savings of billions of dollars in the Defense Department budget
in the late 1940s and 1950s. As the AEC told Congress in 1953:
``Each of the tests involved a major expenditure of money,
manpower, scientific effort and time. Nevertheless, in
accelerating the rate of weapons development, they saved far
more than their cost.'' \24\
---------------------------------------------------------------------------
\24\ U.S. Atomic Energy Commission, Thirteenth Semiannual Report of
the Atomic Energy Commission (1953), p. 18.
---------------------------------------------------------------------------
Although the Compact Section 177 Agreement states that it
constitutes the full settlement of all claims arising out of
the nuclear testing program, other sections of the Compact make
clear that Congress intended to leave the door open for other
funding programs for the four atolls. For example:
Section 103(h)(2) of the Compact of Free Association Act
(Pub. L. 99-239) established the Enewetak Food and
Agriculture Program, which Congress has funded for 19 years
at an annual amount of between $1.1 and $1.8 million
because it recognized the challenge of providing food to
the Enewetak people.
Section 103 (i) authorized funding for the radiological
cleanup of Rongelap Island, and Congress subsequently
appropriated $45 million for a Rongelap resettlement trust
fund.
Article VI of the Section 177 Agreement ``reaffirms'' the
U.S. ``commitment to provide funds for the resettlement of
Bikini Atoll,'' and Section 103 (1) of the Compact declares
that ``it is the policy of the United States . . . that
because the United States . . . rendered Bikini Atoll
unsafe for habitation . . ., the United States will fulfill
its responsibility for restoring Bikini Atoll to
habitability. . . . Congress subsequently appropriated $90
million for the radiological cleanup of Bikini Atoll. See
Pub. L. No. 100-446.
The Department of Energy's budget for the cleanup of
radioactive, chemical and other hazardous waste at 53 U.S.
nuclear weapons production and development sites in 23 states
dwarfs the numbers under consideration here. That cleanup
program has been estimated to cost between $168-$212
billion.\25\ Congress appropriated an average of $5.75 billion
annually for the program in the late 1990s, and it is
anticipated that this funding level will continue at this rate
indefinitely.\26\
---------------------------------------------------------------------------
\25\ Status Report on Path to Closure (U.S. Department of Energy,
Office of Environmental Management) (March 2000) at 11 (http://
web.em.doe.gov/closure/fy2000/index.html); Closure Planning Guidance
(U.S. Department of Energy, Office of Environmental Management) (June
1, 2004) at 14; http://www.em.doe.gov/vgn/images/portal/cit_1819/26/34/
94385 Voll_Final_Printed_Version_Word4.pdf.
\26\ Accelerating Cleanup: Paths to Closure (U.S. Department of
Energy, Office of Environmental Management) (June 1998) at 2, 5-8. See
also Environmental Management: Program Budget Totals (FY 1998 - FY
2000) and Environmental Management's FY 2000 Congressional Budget
Request.
---------------------------------------------------------------------------
The U.S. Government spent more than $10 billion at the
Hanford, Washington nuclear weapons site without removing one
teaspoonful of contaminated soil.\27\ That is what DOE has
spent on studying radiation problems at an area exposed to a
miniscule percentage of the radiation that was unleashed in the
Marshall Islands.
---------------------------------------------------------------------------
\27\ Environmental Management: Progress & Plans of the
Environmental Management Program (November 1996) (DOE/EM-0317) at 120;
Closure Planning Guidance, supra n. 25, at 35, 65-66.
---------------------------------------------------------------------------
The U.S. Government has already approved compensation claims
of more than $917 million to claimants were on-site at Nevada
nuclear tests, those downwind from the testing, and those
working in radioactive mines.\28\ The nuclear tests in Nevada
were nearly 100 times smaller in magnitude that the tests
conducted in the Marshall Islands.\29\
---------------------------------------------------------------------------
\28\ See http://www.usdoj.gov/civil/omp/omi/
Tre_SysClaimsToDateSum.pdf.
\29\ Thornburgh Report, supra n. 17 at 3.
---------------------------------------------------------------------------
v. proposed legislative solution
As suggested by the March 14, 2005 Congressional Research Service
report on the changed circumstances petition listing Congress' policy
options, the RMI government and the four atolls urge you to adopt the
legislation to ``[a]llow the federal courts . . . to review the
judgments of the Nuclear Claims Tribunal and potentially to order the
United States to pay these awards, in whole or in part.'' \30\ The
legislation would read as follows:
---------------------------------------------------------------------------
\30\ Thomas Lum, et al., ``Republic of the Marshall Islands Changed
Circumstances Petition to Congress,'' Congressional Research Service
Report RL32811 (March 14, 2005) at 6 (hereinafter ``CRS report'').
Section 103(g) of United States Public Law 99-239 (99 Stat.
1775) is amended by adding a new paragraph (3) as follows:
Judgments of the Nuclear Claims Tribunal established pursuant
to Article IV of the Section 177 Agreement with respect to
claims for loss or damage to property or person that have not
been fully paid or otherwise satisfied may be presented for
review and certification to the United States Court of Appeals
for the Federal Circuit, or its successor court, which shall
have jurisdiction therefor, notwithstanding the provisions of
Article X, XI, and XII of the Section 177 Agreement or 28
U.S.C. 1502, for the limited purposes set forth in this
paragraph only, and which court's decisions shall be reviewable
as provided by the laws of the United States. The United States
Court of Appeals for the Federal Circuit shall review such
judgments, certify them and order payment thereof pursuant to
28 U.S.C. 1304, unless such court finds, after a hearing, that
any such judgment is manifestly erroneous as to law or fact, or
manifestly excessive. In either of such cases, the United
States Court of Appeals for the Federal Circuit shall have
jurisdiction to modify such judgment. In ordering payment, the
Court shall take into account any prior compensation made by
the Nuclear Claims Tribunal as a result of such judgment. In
any such certification proceeding the Government of the United
States shall stand in the place of the Defender of the Fund and
shall be a party to and may oppose certification or payment of
judgments of the Nuclear Claims Tribunal.
This legislation would:
Put the major component of the ``changed circumstances''
petition--property claims--back where they started, in the
courts, which, on a daily basis, deal with factual and legal
issues concerning damage claims.
Resolve the outstanding legal flaw in the Compact 177 scheme
set forth at pp. 3-5, above, that has resulted from the
inability of the Tribunal to pay awards.
Restore to the federal courts the same jurisdiction they
have over other claims from the Trusteeship era. The proposal
closely tracks the language of Section 174 (c) of the Compact,
under which the United States waives sovereign immunity for all
claims arising from its previous actions as Administering
Authority of the Trust Territory, other than those claims
settled by the Section 177 Agreement.
Relieve Congress of its traditional role of dealing with
these nuclear legacy issues. The Section 177 Agreement imposed
a political settlement on a legal matter. Congress is ill-
equipped to resolve these issues, given the need for a detailed
review of scientific, medical and legal questions, but courts
deal with them all the time.
Would provide a source of funding for the nuclear legacy
issues other than the appropriations process, because any award
upheld by the U.S. Court of Appeals for the Federal Circuit
would be paid from the Claims Court Judgment Fund established
for awards against the United States under 28 U.S.C. Sec. 1304.
Would protect the role of the executive branch by ensuring
that the Justice Department can appear to oppose payment or
offer modifications to any proposed award. In addition, any new
awards would be discounted by amounts already paid under the
Compact.
Would be consistent with other Compact provisions (see p. 7,
above) that show the Section 177 Agreement was not intended to
provide total compensation tot the peoples of the four atolls.
There are three venues the four atoll groups can pursue to seek
redress for this issue. The executive branch refused to negotiate the
matter during the recent Compact negotiations \31\ and ignored the
issue in its long-overdue response to the changed circumstances
petition in January 2005.\32\ We are now before the legislative branch
with our proposed legislation, but the clock is running on the judicial
front. (Another short-term legislative solution may be for Congress to
refer these cases to the Court of Federal Claims under its
congressional reference authority.) \33\
---------------------------------------------------------------------------
\31\ See ``Opening Statement of Hon. Gerald M. Zackios, Minister
for Foreign Affairs and Chief Compact Negotiator, 4th Round of RMI-U.S.
Compact Negotiations, Honolulu, Hawaii, August 28-29, 2002 at 8-9: See
also March 27, 2003 letter from Albert V. Short, U.S. Compact
Negotiator, to Republic of the Marshall Islands Minister of Foreign
Affairs Gerald Zackios: ``We cannot. . . address requests for any
additional assistance related to the Nuclear Testing Program since this
issue is on a separate track. It is now before Congress via the RMI's
request submitted under the changed circumstances provision of the
Agreement between the U.S. and the RM.I for the implementation of
section 177 of the Compact . . . [A]n interagency group will study the
request and respond to Congress separately from the Compact
negotiations.''
\32\ See U.S. Department of State, ``Report Evaluating the Request
of the Government of the Republic of the Marshall Islands Presented to
the Congress of the United States of America,'' November 2004.
\33\ See 28 U.S.C. Sec. Sec. 1492 and 2509. See also Rule of the
U.S. Court of Federal Claims, Appendix D (Procedure in Congressional
Reference Cases), p. 6.
---------------------------------------------------------------------------
The third option is to go to the judicial branch without any
enabling legislation. Whether--and when--that occurs depends in part on
the reaction of this committee to our legislative proposal but also on
the various timetables the four atolls face in bringing legal actions.
For example, the Nuclear Claims Tribunal issued its award to Enewetak
in April 2000. Viewing that judgment as a property claim and facing a
six-year statute of limitations in the U.S. Court of Federal Claims for
bringing such claims again the United States, Enewetak's counsel must
file a case within eleven months at least to protect his clients'
interests. Bikini's six-year period will expire in March 2007, while
the other two atolls have yet to receive Tribunal awards but expect to
be in the same legal posture as Bikini and Enewetak once their awards
are granted.
In one sense, payment of the Tribunal's awards can be seen as part
of the changed circumstances petition, because no one assumed at the
start of the Compact that the United States would fail to discharge its
responsibility. On the other hand, this dilemma stands on its own
outside the petition, because it represents an attempt by the United
States to wash its hands of legal obligations to people it damaged and
other people who, with no real options, gave up their lands to help the
United States win the Cold War.
vi. congressional research service report
Although we disagree with some of the Congressional Research
Service (CRS) report's conclusions, we welcome the report as a
significant contribution to the record before this committee. In fact,
it represents the most conscientious effort of any federal entity to
define the legal and policy issues under the Section 177 Agreement that
Congress must address. That said, the merits of the Nuclear Claims
Tribunal's awards--and the inability of the Tribunal to pay them--
cannot be dismissed in staff reports for Congress. They are real and
must be dealt with.
This testimony is not the appropriate means to respond to the
detailed analysis and discussion in the CRS study, but the peoples of
the four atolls are concerned with several key points. We have concerns
about the report's conclusions regarding radiation dose estimates in
the Marshall Islands as well as the appropriateness of U.S. standards
for the cleanup of radioactive contaminants in the Marshalls to protect
human health and the environment. Those issues, however, are well
covered by Dr. John Mauro in the testimony he is presenting to you
today, so this testimony will cover just a few of the key issues
concerning the report's comments on the loss of use methodology adopted
by the Tribunal in its property claim awards.
We also have concerns about the report's conclusions concerning the
appraisals of Enewetak and Bikini. In general, the CRS report praises
the Tribunal's methodology and the appraisal reports it relies on. On
not one, but three separate occasions, the CRS report states that ``the
methodology used by the Nuclear Claims Tribunal to estimate the value
of the lost use of the claimants' property is considered to be
reasonable and appropriate.'' \34\ It also embraces the methodology of
the appraisal report relied on by the Tribunal as ``rooted in sound
economic and financial theory, and the methodology itself is standard
methodology used by economist, as well as the courts, in solving
similar problems.'' \35\
---------------------------------------------------------------------------
\34\ CRS report at 4, 18, and 21.
\35\ Id. at 22.
---------------------------------------------------------------------------
Nevertheless, the CRS report raises a number of questions about the
appraisals of Bikini and Enewetak. The appraisers employed by those
atolls have responded to these criticisms and questions with a six-page
letter, which we look forward to sharing with the CRS staff, especially
as the report states on page 2 that this report will be updated. A few
of the issues are covered below:
The report criticizes the appraisals for using ``lease
transactions from distance atolls which may not reflect the
rents on Enewetak and Bikini.'' \36\ In fact, there were no
leases from these two atolls, so the appraisers prepared the
most comprehensive database of real estate transactions ever
compiled in the Marshall Islands, and later refined these 500-
plus transactions to 196 after eliminating non-arms-length
deals, non-cash considerations, duplicates, and records without
adequate documentation. This database is: nondiscriminatory;
representative of overall market activity in the Marshalls;
accepted by numerous other appraisal organizations; and the
best information available.
---------------------------------------------------------------------------
\36\ Id.
---------------------------------------------------------------------------
The report criticizes the resulting data as reflecting
``rents set by government decree rather than as the equilibrium
of supply and demand for the use of land in a competitive real
estate market.''\37\ However, this rate has been the dominant
factor in the marketplace, as more than half the transactions
studied involve leases between private parties who by mutual
agreement adopted the then-existing government rate, and many
leases actually indexed the government rate for future
escalations and renewals.
---------------------------------------------------------------------------
\37\ Id.
---------------------------------------------------------------------------
The report questions the use of comparables in commercial
centers as opposed to more remote locations in the Marshall
Islands. In fact, the appraisers considered--and rejected--good
faith payments made to Kwajalein Atoll landowners for use of
Kwajalein as a U.S. military based, which would have increased
the average rental in the appraisers' database by about 32
percent.
The report argues that vaporized lands should be treated as
permanent takings, and their values calculated that way, but
fee simple doesn't exist in the Marshalls; no one can sell
their birthright ownership in land. These cases involved loss
of use, not loss of ownership.
Again, we appreciate your willingness to consider our views, and we
and our legal representatives are available at any time to work with
you and your staff.
Thank you, and we welcome any follow-up questions from staff.
______
Institute for Energy and Environmental Research
[Press Release]
Cancer Risks for Women and Children Due to Radiation Exposure Far
Higher Than for Men
new national academy of sciences report raises major issues for
radiation protection, independent institute claims
Takoma Park, Maryland, July 7, 2005: The National Academy of
Sciences (NAS) latest report on radiation risk, called the BEIR VII
report, issued June 29, has major implications on how radiation
protection regulations are made and enforced, according to the
Institute for Energy and Environmental Research (IEER). ``BEIR'' stands
for the Biological Effects of Ionizing Radiation. The NAS report issued
this week updates the BEIR V report issued in 1990. The BEIR series of
reports are the most authoritative basis for radiation risk estimation
and radiation protection regulations in the United States.
``In 1990, the NAS estimated that the risks of dying from cancer
due to exposure to radiation were about five percent higher for women
than for men,'' said Dr. Arjun Makhijani, president of the Institute
for Energy and Environmental Research. ``In BEIR VII, the cancer
mortality risks for females are 37.5 percent higher. The risks for all
solid tumors, like lung, breast, and prostate, added together are
almost 50 percent greater for women than men, though there are a few
specific cancers, including leukemia, for which the risk estimates for
men are higher.'' (Summary estimates are in Table ES-1 on page 28 of
the BEIR VII report prepublication copy, on the Web at http://
books.nap.edu/books/030909156X/html/28.html.)
Unlike the 1990 NAS report, BEIR VII estimates risks for cancer
incidence rates as well as mortality and also provides detailed risk
figures according to age of exposure for males and females, by cancer
type. This is a great advance over the previous report. The BEIR VII
report has thoroughly reviewed available human and animal cancer data
and scientific understanding arrived at using cellular level studies.
Cancer risk incidence figures for solid tumors for women are also about
double those for men.
The BEIR VII report estimates that the differential risk for
children is even greater. For instance, the same radiation in the first
year of life for boys produces three to four times the cancer risk as
exposure between the ages of 20 and 50. Female infants have almost
double the risk as male infants. (Table 12 D-1 and D-2, on pages 550-
551 of the prepublication copy of the report, on the Web starting at
http://books.nap. edu/books/03090915 6X/html/5 50.html).