```

[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

                 U.S. GOVERNMENT PRINTING OFFICE

24-536                 WASHINGTON : 2005
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government 
Printing  Office Internet: bookstore.gpo.gov  Phone: toll free 
(866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail:
Stop SSOP, Washington, DC 20402-0001

               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

                              ----------                              

                               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

                              ----------                              

                         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.*
---------------------------------------------------------------------------
    * Material attached to this statement has been retained in 
committee files.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.*
---------------------------------------------------------------------------
    * The report has been retained in committee files.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ CRS Report RL32811, Republic of the Marshall Islands Changed 
Circumstances Petition to Congress.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
----------------------------------------------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ Trusteeship Agreement for the Former Japanese Mandated Islands, 
61 Stat. 3301, 80th Cong., 1st Sess. (1947), Art. 6, Sec. 2.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).

                                    

      

```