Personal Injury Claims
Pursuant to §23(13) of the Marshall Islands Nuclear Claims Tribunal Act 1987, as amended, the Tribunal adopted regulations in August 1991 establishing a list of 25 medical conditions which are irrebuttably presumed to be the result of the Nuclear Testing Program. Those regulations were amended by the Tribunal and approved by the Cabinet of the Republic of the Marshall Islands in January 1994 to add two additional conditions (numbers 26 and 27 below) to the presumed list. Effective October 1, 1996, the regulations were again amended by the Tribunal and approved by the Cabinet to include seven additional conditions (numbers 28-34 below). Based on a 1996 report from the Radiation Effects Research Foundation entitled Studies of the Mortality of Atomic Bomb Survivors, bone cancer was added to the list in 1998 (number 35 below). Autoimmune thyroiditis was added to the list in 2003 (number 36 below).
For eligible claimants, the
administratively presumed medical conditions and the amounts of compensation for
each that will be paid in pro rata annual payments are as follows:
| 1 | Leukemia (other than chronic lymphocytic leukemia) | $125,000 |
| 2 | Cancer of the thyroid | |
| a. if recurrent or requires multiple surgical and/or ablation | $75,000 | |
| b. if non-recurrent or does not require multiple treatment | $50,000 | |
| 3 | Cancer of the breast | |
| a. if recurrent or requires mastectomy | $100,000 | |
| b. if not recurrent or requires lumpectomy | $75,000 | |
| 4 | Cancer of the pharynx | $100,000 |
| 5 | Cancer of the esophagus | $125,000 |
| 6 | Cancer of the stomach | $125,000 |
| 7 | Cancer of the small intestine | $125,000 |
| 8 | Cancer of the pancreas | $125,000 |
| 9 | Multiple myeloma | $125,000 |
| 10 | Lymphomas (except Hodgkin's disease) | $100,000 |
| 11 | Cancer of the bile ducts | $125,000 |
| 12 | Cancer of the gall bladder | $125,000 |
| 13 | Cancer of the liver (except if cirrhosis or hepatitis B is indicated) | $125,000 |
| 14 | Cancer of the colon | $75,000 |
| 15 | Cancer of the urinary tract, including the urinary bladder, renal pelves, ureter and urethra | $75,000 |
| 16 | Tumors of the salivary gland | |
| a. if malignant | $50,000 | |
| b. if benign and requiring surgery | $37,500 | |
| c. if benign and not requiring surgery | $12,500 | |
| 17 | Non-malignant thyroid nodular disease (unless limited to occult nodules) | |
| a. if requiring total thyroidectomy | $50,000 | |
| b. if requiring partial thyroidectomy | $37,500 | |
| c. if not requiring thyroidectomy | $12,500 | |
| 18 | Cancer of the ovary | $125,000 |
| 19 | Unexplained hypothyroidism (unless thyroiditis indicated) | $37,500 |
| 20 | Severe growth retardation due to thyroid damage | $100,000 |
| 21 | Unexplained bone marrow failure | $125,000 |
| 22 | Meningioma | $100,000 |
| 23 | Radiation sickness diagnosed between June 30, 1946 and August 18, 1958, inclusive | $12,500 |
| 24 | Beta burns diagnosed between June 30, 1946 and August 18, 1958, inclusive | $12,500 |
| 25 | Severe mental retardation (provided born between May and September 1954, inclusive, and mother was present on Rongelap or Utirik Atolls at any time in March 1954) | $100,000 |
| 26 | Unexplained hyperparathyroidism | $12,500 |
| 27 | Tumors of the parathyroid gland | |
| a. if malignant | $50,000 | |
| b. if benign and requiring surgery | $37,500 | |
| c. if benign and not requiring surgery | $12,500 | |
| 28 | Bronchial cancer (including cancer of the lung and pulmonary system) | $37,500 |
| 29 | Tumors of the brain, including schwannomas, but not including other benign neural tumors | $125,000 |
| 30 | Cancer of the central nervous system | $125,000 |
| 31 | Cancer of the kidney | $75,000 |
| 32 | Cancer of the rectum | $75,000 |
| 33 | Cancer of the cecum | $75,000 |
| 34 | Non-melanoma skin cancer in individuals who were diagnosed as having suffered beta burns under number 24 above | $37,500 |
| 35 | Cancer of the bone | $125,000 |
| 36 | Autoimmune thyroiditis | $12,500 |
PROPERTY DAMAGE CLAIMS
Also pending before the Tribunal are many claims for damage to property. The large class action claims for the peoples of Enewetak, Bikini, Rongelap and Utrik were given priority over individual land damage claims. The Tribunal has issued its decision in the claims of the people of Enewetak and the people of Bikini. The pending claims in Rongelap and Utrik near completion. The people of Ailuk have recently filed a class action claim for property damage. It is the view of the Tribunal that resolution of these class action claims will provide precedent for the determination of the remaining property damage claims.
Establishment of a Radiation Protection Standard
A major category of damage in the class action property claims is cleanup and rehabilitation of the atolls and islands involved. The Tribunal consolidated the class action property claims then before it and set a formal hearing date in November 1998 to consider establishing a radiation protection standard upon which it would rely in considering claims for such cleanup and rehabilitation of islands and atolls that remain contaminated as a result of the Nuclear Testing Program.”
Among the expert witnesses who testified at the November hearing was Mr. Allan Richardson, recently retired Associate Director for Radiation Policy with the U.S. Environmental Protection Agency (EPA). Mr. Richardson provided a copy of a memorandum from EPA clarifying guidance for establishing cleanup levels for radioactive contamination at U.S. sites.[1] The memorandum states that “All remedial actions . . . must be protective of human health and the environment” and that “Cleanup should generally achieve a level of risk within the 10-4 and 10-6 carcinogenic risk range based on the reasonable maximum exposure for an individual.”
The memorandum notes that EPA has determined that the cleanup level of 25 millirem per year established by the U.S. Nuclear Regulatory Commission (NRC) in 1997 (equivalent to approximately 5 x 10-4 increased lifetime risk) with exemptions allowing dose limits of up to 100 millirem (equivalent to 2 x 10-3 increased lifetime risk) would not properly protect the public.
Claimants also entered into evidence a 1985 document issued by the International Atomic Energy Agency (IAEA) 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 populations within the country of release.”[2]
In December 1998, the Tribunal issued a Memorandum of Decision and Order in which it stated that the IAEA principle “whereby the victims of a transboundary exposure are treated no less favorably than the citizens of the offending country, is consistent with the Tribunal’s policy of comparability with U.S. policies and procedures” in its personal injury compensation program. The Tribunal extended that principle to the situation in the Marshall Islands where the U.S. conducted nuclear testing. The Tribunal determined that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund) governs the cleanup of hazardous waste sites in the U.S. such as the Nevada Test Site and that if the Marshall Islands were in the U.S., both CERCLA and the EPA cleanup guidance standard would apply to them.
The Tribunal Decision concluded by adopting the “policies and criteria” set out in the 1997 EPA memorandum which provides that “If a dose assessment is conducted at the site then 15 millirem per year (mrem/yr) effective dose equivalent (EDE) should generally be the maximum dose limit for humans.” That standard will provide the basis on which evidence will be presented to the Tribunal for it to determine the need for and cost of radiological rehabilitation of any atolls where such action may be warranted.