[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
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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.
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