[Congressional Record Volume 146, Number 107 (Wednesday, September 13, 2000)]
[Senate]
[Pages S8499-S8501]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PETITIONS AND MEMORIALS

  The following petitions and memorials were laid before the Senate and 
were referred or ordered to lie on the table as indicated:

       POM-621. A petition from the Republic of the Marshall 
     Islands relative to nuclear testing; to the Committee on 
     Energy and Natural Resources.

                                Petition

       As provided by Congress in Article IX of the nuclear test 
     claims settlement enacted in law under Title II, Section 
     177(c) of the Compact of Free Association Act of 1985 [P.L. 
     99-239], the Republic of the Marshall Islands respectfully 
     submits this Changed Circumstances Petition to the Congress 
     of the United States. The Government of the Republic of 
     Marshall Islands hereby notifies the Congress of its 
     determination that the criteria have been satisfied under 
     applicable U.S. federal law for further measures to provide 
     adequately for injuries to persons and property in the 
     Marshall Islands that have arisen, been discovered, or 
     adjudicated since the Compact took effect on October 21, 
     1986.
       Section 177 of the Compact of Free Association provides 
     that ``The Government of the United States accepts the 
     responsibility for compensation owing to citizens of the 
     Marshall Islands . . . for loss or damage to property and 
     person . . . resulting from the nuclear testing program which 
     the Government of the United States conducted in the Northern 
     Marshall Islands between June 30, 1946, and August 18, 
     1958.''
       As detailed herein, injuries and damages resulting from the 
     United States Nuclear Testing Program have arisen, been 
     discovered, or have been adjudicated in the Marshall Islands 
     since the Compact took effect. These injuries and damages 
     could not reasonably have been discovered, or could not have 
     been determined, prior to the effective date of the Compact. 
     Such injuries, damages and adjudication render the terms of 
     the Section 177 Agreement manifestly inadequate to provide 
     just and adequate compensation for injuries to Marshallese 
     people and for damage to or loss of land resulting from the 
     U.S. Nuclear Testing Program.
       The terms of Section 177 represent a politically determined 
     settlement (Attachment I, Hills testimony) rather than either 
     a good faith assessment of personal injury or property 
     claims, a legally adjudicated determination of actual 
     damages, or monetary award for such damages. As a political 
     settlement, Section 177 of the Compact requires that the U.S. 
     provide $150 million to the RMI to create a Fund that, over a 
     15-year period of the Compact, was intended to generate $270 
     million in proceeds for disbursement ``as a means to address 
     past, present and future

[[Page S8500]]

     consequences of the U.S. Nuclear Testing Program, including 
     the resolution of resultant claims'' [Preamble of the 177 
     Agreement].
       In lieu of an assessment of damages by the Federal courts, 
     the government of the Marshall Islands accepted the U.S. 
     proposal that it espouse and settle the claims of the 
     Marshallese people arising from the nuclear testing program 
     conducted by the U.S. in conjunction with the establishment 
     of a Claims Tribunal. The U.S. expressly recognized that its 
     technical assessment of radiological damage to persons and 
     property in the RMI was limited to a ``best effort'' at the 
     time of the Compact (Attachment II, Scientific Analysis), and 
     was based on a 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 United States.
       In addition to creating the Tribunal, the U.S. agreed, in 
     exchange for the RMI espousing and settling its citizens 
     claims, to adopt a ``Changed Circumstances'' procedure, 
     through which Congress accepted the authority and 
     responsibility at a later date to determine the adequacy of 
     the measures adopted under the 177 Agreement to compensate 
     for the injuries and damages caused by the U.S. Nuclear 
     Testing Program. Accordingly, in approving the Section 177 
     Agreement, Congress accepted the responsibility to determine 
     if further measures are required to provide just and adequate 
     compensation in light of the awards that have been made by 
     the Tribunal, as well as the injuries and damages that have 
     become known or been discovered since the settlement was 
     ratified.
       For the RMI to seek and ask for the Congress to provide 
     additional funding is consistent with the commitment of the 
     United States to provide just and adequate compensation for 
     the nuclear claims. Indeed, such funding is contemplated by 
     the Agreement and is the political process intended by 
     Congress as a means to seek just and adequate compensation--
     if possible without further litigation. Under relevant 
     federal court decisions, it is possible that claims could be 
     recommenced in U.S. courts based on failure of the agreement 
     to provide just and adequate compensation (Attachment III, 
     Legal Analysis).
       The settlement specifically authorizes direct access to the 
     Congress of the United States by the RMI if ``Changed 
     Circumstances'' were discovered or developed after the 
     Agreement took effect, and render the provisions of the 
     Agreement manifestly inadequate. As more knowledge and 
     information emerges about the damages and injuries wrought by 
     the testing program, the manifest inadequacy of Section 177 
     has become clear. As confirmed in Attachments IV, V, and VI, 
     the most immediate needs resulting from inadequacies of the 
     Agreement are funding to award personal injury claims through 
     the Tribunal, funding to satisfy the Tribunal awards for 
     property damage claims, and funding to address the gross 
     inability of the 177 medical program to effectively address 
     the health consequences of the U.S. Nuclear Testing Program.


     payment of personal injury awards made by the claims tribunal

       As of August 15, 2000, the Nuclear Claims Tribunal 
     established pursuant to the 177 Agreement had awarded 
     $72,634,750 for personal injuries, an amount $26.9 million 
     more than the $45.75 million total available under Article 
     II, Section 6(c) for payment of all awards, including 
     property damage, over the Compact period. To date, at least 
     712 of these awardees (42%) have died without receiving their 
     full award (Attachment IV, Decisions of the Nuclear Claims 
     Tribunal).


     payment of property damage awards made by the claims tribunal

       The Claims Tribunal awarded the Enewetak people 
     compensation for damages they suffered as a result of the 
     U.S. nuclear testing at Enewetak. The compensation included 
     awards for loss of use of their land, for restoration 
     (nuclear cleanup, soil rehabilitation and revegetation), and 
     for hardship (for suffering the Enewetak people endured while 
     being exiled to Ujelang Atoll for a 33 year period). The 
     Tribunal fully deducted the compensation the Enewetak people 
     received, or are to receive, under the Compact. The Tribunal 
     determined that the net amount of $386 million is required to 
     provide the Enewetak people with the just compensation to 
     which they are entitled. The Tribunal does not have the funds 
     to pay the $386 million award to the Enewetak people 
     (Attachment V, Enewetak Land Claim).


   gross inability of the 177 medical program to effectively address 
                          health consequences

       One of the measures adopted under the Section 177 Agreement 
     to compensate the people and government of the Marshall 
     Islands was a health care program for four of the atoll 
     populations impacted by the testing program, including those 
     who were downwind of one or more tests, and the awardees of 
     personal injury claims from the Tribunal. The medical 
     surveillance and health care program established under the 
     Section 177 Agreement has proven to be manifestly inadequate 
     given the health care needs of the affected communities. The 
     177 Health Care Program was asked to deliver appropriate 
     health care services within an RMI health infrastructure that 
     was not prepared or equipped to deliver the necessary level 
     of health care. Funding provided under Article II, Section 
     1(a) of the 177 Agreement has remained at a constant $2 
     million per year. As a result of this underfunding, the 177 
     Health Care Program has only $14 per person per month as 
     compared to an average U.S. expenditure of $230 per person 
     per month for similar services (Attachment VI, Medical 
     Analysis).
       It is imperative that a new medical program be implemented, 
     with adequate funding that empowers the affected downwind and 
     other exposed communities to provide primary, secondary, and 
     tertiary healthcare for their citizens in a manner compatible 
     and coordinated with RMI and U.S. health care programs and 
     policies.
       Based on the inadequacy of funds for personal injury 
     claims, property damage claims, and health consequences from 
     the U.S. Nuclear Testing Program, the RMI Government 
     respectfully requests Congress to:
       1. Authorize and appropriate $26.9 million so the Claims 
     Tribunal can complete full payment of the personal injury 
     awards made as of August 15, 2000. Of this amount, 
     approximately $21 million is needed to pay off the estates of 
     the 712 individuals known to have died. An additional $5.9 
     million is needed to make full payments of awards to 
     individuals who are still alive; approximately half of that 
     amount is needed to pay 80 or more individuals who presently 
     suffer from a compensable condition which is likely to result 
     in their death and the remaining half is owed to other living 
     awardees (Attachment IV, Decisions of the Nuclear Claims 
     Tribunal).
       2. Authorize and appropriate $386 million to satisfy the 
     Claims Tribunal award to the Enewetak people (Attachment V. 
     Enewetak Land Claim).
       3. Authorize and appropriate $50 million in initial capitol 
     costs to build and supply the infrastructure necessary to 
     provide adequate primary and secondary medical care to the 
     populations exposed to radiation from the U.S. Weapons 
     Testing Program (Attachment VI, Medical Analysis).
       4. Authorize and appropriate $45 million each year for 50 
     years for a 177 Health Care Program to provide a health care 
     program for those individuals recognized by the U.S. 
     Government as having been exposed to high levels of radiation 
     during or after the testing program, including those who were 
     downwind for one or more test, and the awardees of personal 
     injury claims from the Tribunal (Attachment VI, Medical 
     Analysis).
       5. Extend the U.S. Department of Energy medical monitoring 
     program for exposed populations to any groups that can 
     demonstrate high levels of radiation exposure to the U.S. 
     Congress (Attachment II, Scientific Analysis, issue #6).
       Beyond the five immediate changed circumstances, the RMI 
     Government will present information to the U.S. Congress in 
     the future regarding several other areas of changed 
     circumstances. Some of these areas include:


     payment of property damage awards made by the claims tribunal

       In April 2000, the Claims Tribunal issued its first award 
     for property damage to the people of Enewetak Atoll. The full 
     award of $386 million addresses the claims of the Enewetak 
     people for loss of use of their land, for costs of 
     restoration, and for hardship suffered while in exile for a 
     33 year period. Additionally, the Claims Tribunal is expected 
     to make an award for property damage to the people of Bikini. 
     Two other property damage claims in the process of being 
     developed include one by Rongelap, Alinginae, and Rongerik 
     and, one by Utrik, Taka, Tongai/Bokaak. These claims will be 
     presented to the Tribunal in the near future. The pending 
     cases will better define the level of compensation that 
     will ultimately be required to fully repair damage to all 
     islands, including those not currently being rehabilitated 
     for resettlement, and to provide for adjudication of all 
     other claims.


        Funding of environmental rehabilitation and resettlement

       The U.S. Congress has recognized the need for environmental 
     restoration to reduce radioactive contamination to acceptable 
     levels at Bikini, Enewetak, and Rongelap atolls by 
     establishing resettlement trust funds for those atolls. The 
     Enewetak trust fund for the rehabilitation and resettlement 
     of Enjebi Island is only $10 million while evidence present 
     before the Claims Tribunal demonstrated that over $148 
     million is required for environmental restoration of the 
     atoll and resettlement of a portion of its population, the 
     Enjebi people. Similarly, preliminary estimates for cleanup 
     costs at Bikini and Rongelap atolls (approximately $205-505 
     million for Bikini Atoll and $100 million for just one island 
     on Rongelap, Rongelap Island) exceed the funding levels 
     currently provided. No rehabilitation and resettlement trust 
     fund presently exists for Utrik.


 Support for further medical surveillance and radiological monitoring 
       activities, including tracer chemicals and toxic materials

       Under Article II, Section 1 (a) of the 177 Agreement, $3 
     million was provided to the RMI for medical surveillance and 
     radiological monitoring activities. Those funds were used to 
     conduct a nationwide radiological survey, a medical 
     examination program in the outer islands, and a thyroid study 
     on Ebeye Island. While valuable information was obtained from 
     these activities, such as identification and treatment for 
     radiogenic illnesses, the surveys indicate that thyroid and 
     other radiation related illnesses are evident in populations 
     that are

[[Page S8501]]

     presently unmonitored, yet the funds for medical surveillance 
     are exhausted.
       The health consequences of the U.S. Nuclear Testing Program 
     are greater than originally suspected. Additionally, 
     radiation from the testing program reached every corner of 
     the Marshall Islands. Medical surveillance should have been, 
     and should be targeted at monitoring frequencies of all real 
     and potential health consequences of the testing program in a 
     longitudinal fashion. It is only in this manner that a 
     complete understanding of health trends and associations of 
     specific illness and radiation can be appreciated. An onsite 
     national health surveillance system needs to be developed, 
     implemented, and sustained to monitor all health consequences 
     of the nuclear weapons testing program for the next fifty 
     years.


                      Occupational safety program

       Section 177 does not include an occupational safety program 
     for Marshallese and other workers involved in environmental 
     remediation or cleanup programs. As a result, Marshallese and 
     other workers are exposed to occupational sources of 
     radiation. Medical screening of past and present radiation 
     workers is greatly needed to reduce the risk of further 
     illness and claims.


              community education and development programs

       Section 177 provides no means to educate Marshallese 
     citizens in radiation related fields or to build local 
     capacity to undertake research, archive relevant information, 
     or educate the public about the consequences of the U.S. 
     Nuclear Testing Program in the Marshall Islands.


                      nuclear stewardship program

       Section 177 does not provide programs for communities to 
     develop strategies for safely containing radiation and living 
     near radioactive waste storage areas.
       The inadequacies presented in this petition ``could not 
     reasonably have been identified'' in the 177 Agreement 
     [Article IX] both because the full extent of the damages 
     caused by the testing program had never been assessed and 
     because scientific and medical developments since the 
     settlement was consummated would have rendered any prior 
     assessment not just manifestly inadequate, but null and void. 
     What might have been acknowledged by the Government of the 
     United States in 1983 as ``damages resulting from the Nuclear 
     Testing Program'' is only a small portion of what such 
     injuries and damages are now known to be.
       The 67 atomic and thermonuclear weapons detonated in the 
     Marshall Islands allowed the United States Government to 
     achieve its aim of world peace through a deterrence policy. 
     The Marshallese people subsidized this nuclear detente with 
     their lands, health, lives, and future. ``As an ally and 
     strategic partner, the Republic of the Marshall Islands has 
     paid a uniquely high price to define its national interest in 
     a manner that also has been compatible with vital U.S. 
     national interests'' (H. Con. Res. 92--Sponsored by the 
     Honorable Benjamin Gilman and the Honorable Don Young). As a 
     strategic partner and friend of the United States, the RMI 
     remains hopeful that Congress will take action to address the 
     inadequacies of the 177 Agreement. The Government of the 
     Republic of the Marshall Islands looks forward to working 
     closely with the Congress of the United States to respond to 
     changed circumstances in the Marshall Islands.

                          ____________________