Republic of the Marshall Islands Supplemental Nuclear Compensation Act of 2010

Mr. President. Today, I join the Ranking Member of the Committee on Energy and Natural Resources, Senator Murkowski, in reintroducing, the Republic of the Marshall Islands Supplemental Nuclear Compensation Act at the request of the President of the Marshall Islands, the Honorable Jurelang Zedkaia.

This legislation is identical to legislation introduced by myself and Senators Domenici, Akaka and Murkowski in 2007 at the request of then- President Kessai Note. The Committee held a hearing on the bill, S. 1756, on September 25, 2007, S. Hrg 110-243, and staff had follow-up discussions with the administration and with other committees which have interests in matters addressed by the bill. However, before the Committee could formally consider an amendment in the nature of a substitute that was developed during these discussions, the government in the Republic of the Marshall Islands, RMP, was replaced and the position of the new government on the substitute amendment was not obtained until it was too late for further action.

The process for reconsideration of this legislation in the 111th Congress will need to be pushed back because there is a new Administration with new officials who will need to be educated on the issues. There are also new members and staff on many of the Committees who will need to be educated on the history and need for this legislation before they can provide their input. Finally, the fiscal position of the U.S. government has weakened since 2007 and funding this legislation will be more challenging today than it would have been when the legislation was last considered.

To begin this process of education on this issue, I offer the following background.

For over 50 years, the Committee on Energy and Natural Resources has worked with the government of the RMI to respond to the tragic consequences of the U.S. nuclear weapons tests that were conducted in the islands from 1946 to 1958 when the islands were a district of the U.S.-administered, U.N. Trust Territory of the Pacific Islands. In 1986, this Trusteeship ended when the RMI entered into free association with the U.S. pursuant to the Compact of Free Association Act of 1985, (P.L. 99-239). Under Section 177 of the Compact, the U.S. accepted responsibility for damage and injuries resulting from the testing program and the law authorized two basic sources of compensation: 1) a legal settlement of $150 million under Section 177, and 2) additional ex gratia assistance under sections 103, 105, and 224.

The $150 million legal settlement and its Subsidiary Agreement funded a Claims Tribunal to adjudicate and pay awards arising from the test program, regular distribution payments to the affected communities, a supplemental health care program, a radiological and health monitoring program, and it allowed the RMI to request additional compensation if there were ``changed circumstances''--that is, if information and injuries came to light after the settlement was reached which rendered the settlement ``manifestly inadequate.''

The RMI submitted such a ``changed circumstances petition'', CCP, in 2000 in which it sought over $3 billion in addition compensation from Congress. At the Committee's 2005 hearing on the CCP, S. Hrg 109-178, the administration testified in opposition to further financial compensation because the 1985 settlement was ``full and final'' and the CCP was not based on new information or injuries arising after the original settlement date. The Administration and other witnesses also questioned the RMI' s contention that radiation from the tests caused health injuries well beyond the four northern atolls of the Marshall Islands, and questioned the policies and methodologies used by the Tribunal in determining eligibility for compensation and the amount of awards. The Committee took no further action on the CCP. In 2006, facing the statute of limitations, the atolls of Bikini and Enewetak filed suit in the U.S. Court of Claims, but the Court upheld the U.S. motion to dismiss.

In addition to the $150 million legal settlement, several sections of the Compact authorized ex gratia compensation, primarily through the capitalization of trust funds for the rehabilitation and resettlement of contaminated lands in three of the affected atolls (Enewetak, Bikini, and Rongelap), and by providing program assistance through existing Federal programs such as USDA Agricultural and Food programs, the DOE Marshall Islands program, and extension of the Section 177 Health Care Program, also known as the ``4-Atoll Health Care program''. The rough estimate of this additional ex gratia compensation to date totals at least $220 million.

It is important to note that while the administration opposed additional financial compensation based on the CCP, the administration's report noted that some of the RMI's requests for additional program assistance, while not qualifying as changed circumstances, ``might be desirable''.

The legislation being re-introduced today includes four of the RMI's requests for additional program assistance. I agree with President Zedkaia that these requests should be given consideration by the Congress. Briefly, these requests are:

Runit Island monitoring: Between 1977 and 1980, the U.S. conducted a cleanup of some of the contaminated areas of Enewetak Atoll where 43 tests were conducted. Some of the contaminated soil and debris was removed to Runit Island, mixed with concrete, and placed in Cactus crater that had been formed by one of the tests. Under the Compact settlement, the RMI accepted responsibility for, and control over the utilization of lands in the Marshall Islands affected by the testing. The Compact Act (P.L. 99-239) also reaffirmed a 1980 authorization, under P.L. 96-205, for the Marshall Islands Program of the U.S. Department of Energy (DOE)

which provides medical care and environmental monitoring relating to the testing program. Since then, the people of Enewetak Atoll have from time to time asked DOE to include monitoring of conditions at Runit within their environmental monitoring program in order to assure the people living on other islands in Enewetak Atoll that there is no health risk from the cleanup spoils stored at Runit.

Section 2 of this Act would direct the Secretary of Energy, as a part of the existing program, to periodically survey radiological conditions on Runit and report their findings to the Congress.

Energy Employees Occupational Illness Compensation Program, EEOICPA, eligibility: This program was enacted in 2001 to provide compensation for DOE and contractor employees associated with the nation's nuclear weapons program. During Senate debate, I submitted a list of facilities intended to be covered which included ``Marshall Islands Test Sites, but only for the period after December 31, 1958.'' However, the RMI citizens who applied to the program were denied eligibility on the basis that Congress did not intend the law to cover non-U.S. citizens. I believe that this was an incorrect reading of Congressional intent. It is important to recognize that during the testing and clean-up period the Marshall Islands were a District of the U.S.-administered U.N. Trust Territory of the Pacific Islands and that the U.S. and its contractors employed workers from the Marshall Islands and from other districts in the Trust Territory.

Section 3 of this act would clarify that former Trust Territory citizens are eligible for the program, and it would coordinate benefits with the Compact of Free Association so that if a person received compensation under the Compact, then that amount would be deducted from any award received under EEOICPA.

4-Atoll Health Care Program funding: Section 177 of the Compact approved the $150 million legal settlement, established the Settlement Trust Fund, and allocated $2 million annually for 15 years to provide supplemental health care to the affected communities: Enewetak, Bikini, Rongelap and Utrik. The 15-year period ended in 2001, and with depletion of the Fund, the $2 million annual payment was terminated in 2003. To continue some level of service under the program, the RMI and the U.S. Congress continued to contribute funds on a discretionary basis until a longer-term solution could be enacted.

Section 4 of the bill would authorize $2 million annually through 2023 for the continuation of this program. I believe that this proposal offers an opportunity to discuss with the RMI and U.S. officials how supplemental healthcare assistance to the RMI can most effectively be used.

National Academy of Sciences Assessment: Underlying the debate between the U.S. and the RMI regarding compensation for injuries resulting from the testing program is a dispute over the extent of the area affected by the testing program. The U.S. believes that the health affects were limited to the four northern atolls of Rongelap, Utrik, Bikini, and Enewetak. However, the RMI and the Claims Tribunal took the position that all of the 1958 residents of the RMI should be eligible for compensation.

Section 5 of the bill is intended to help resolve this dispute by having the National Academy of Sciences conduct an assessment of the health impacts of the testing program.

I look forward to continuing to work with President Zedkaia, my colleagues, and the Administration on these proposals and to continue to respond to the tragic legacy of our nation's nuclear testing program in the Pacific.

Mr. President, I ask unanimous consent that the text of the bill and a letter of support be printed in the Record.

Mr. President, I would like to announce for the information of the Senate and the public that a hearing has been scheduled before the Senate Committee on Energy and Natural Resources. The hearing will be held on Wednesday, May 19, 2010, at 9:30 a.m., in room SD-366 of the Dirksen Senate Office Building.

The purpose of the hearing is to receive testimony on the proposed Constitution of the U.S. Virgin Islands; S. 2941, the Republic of the Marshall Islands Supplemental Nuclear Compensation Act of 2010; H.R. 3940, an act to amend Public Law 96-597 to clarify the authority of the Secretary of the Interior to extend grants and other assistance to facilitate political status public education programs for the peoples of the non-self-governing territories of the United States; and H.R. 2499, the Puerto Rico Democracy Act of 2010.

Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record may do so by sending it to the Committee on Energy and Natural Resources, United States Senate, Washington, DC 20510-6150, or by e-mail to Rosemarie_Calabro @energy.senate.gov.

For further information, please contact Allen Stayman or Rosemarie Calabro.

Mr. President, I wish to announce that the Committee on Rules and Administration will meet on Wednesday, May 5, 2010, at 10 a.m., to hear testimony on ``Voting By Mail: An Examination of State and Local Experiences.''

For further information regarding this meeting, please contact Lynden

Armstrong at the Rules and Administration Committee.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.