Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 02:30 PM

Thomas Lum

Specialist in Asian Affairs, Congressional Research Service

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Thomas Lum
Specialist in Asian Affairs
Congressional Research Service
Testimony before the Senate Committee on Energy and Natural Resources
Hearing on the Effects of the U.S. Nuclear Testing Program on the Marshall
Islands
July 19, 2005
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
U.S. Department of State, Report Evaluating the Request of the Government of the Republic of the Marshall 1
Islands Presented to the Congress of the United States of America, November 2004.
CRS Report RL32811, Republic of the Marshall Islands Changed Circumstances Petition to Congress. 2
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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. The report concluded that “the 1
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.
The CRS report on the Changed Circumstances Petition analyzes issues related to the Petition’s
requests. The report examines nuclear test compensation programs in the United States, the health 2
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.
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
U.S. Dept. of Health and Human Services, National Institutes of Health, National Cancer Institute, 3
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.
National Research Council, Assessment of the Scientific Information for the Radiation Screening and 4
Education Program (Washington, DC: National Academy Press, 2005).
Steven L. Simon and James C. Graham, “Findings of the Nationwide Radiological Study,” 1994. 5
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to develop or be diagnosed, so additional compensation claims were likely. Based upon this study, 3
the RMI government projects an additional $100 million in future NCT awards.
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
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. The RMI disagreed with these findings and claimed that the extent of contamination 5
and health risks were understated.
The CRS report identifies four broad policy options in considering whether to provide
additional financial compensation to the Marshall Islands. These options include:
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! 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.