When President Bush signed the Radiation Exposure Compensation Act on Oct. 5, that wasn't the end of the line in the fallout victims' search for justice. It was the first step on what may turn out to be a long and rocky new road.
Under the act, sponsored by Rep. Wayne Owens, D-Utah, and Sen. Orrin Hatch, R-Utah, Congress would compensate civilians living downwind from the Nevada Test Site during the open-air nuclear tests of the 1950s and early '60s who suffered cancer caused by radioactive fallout. They could get $50,000 each.However, in a bill passed later in October, former workers at the test site itself who are victims of cancer could get $75,000 each.
Besides the inequality of valuing the lives of test site workers as higher than those of unsuspecting civilians living downwind, a number of serious problems remain.
Foremost, Congress still needs to actually pass an appropriations bill to pay the damages.
And what may prove almost as troublesome for the downwinders is that the Justice Department must draft rules about who is eligible for compensation.
For decades, as the federal government's lawyers in compensation lawsuits, Justice's attorneys denied that nuclear testing was responsible for damage or illness. The department won all the suits, usually by the simple technicality that the federal government cannot be sued for actions taken in the national interest even if those actions are negligent.
Then the department lobbied President Bush not to sign the bill, although he did anyway.
Now it must write the rules that will determine how extensive the compensation is. The Justice Department thus finds itself playing a strange role - the agency that once denied responsibility must say how the government meets that responsibility.
The possible mixed motives of the department raise apprehension among the downwinders' advocates.
Adding to the turmoil is the fact that compensation bills of a similar nature have become bogged down in acrimony, aside from any problems with compensation guidelines.
A prime example is the bill to compensate residents of the Marshall Islands, Micronesian natives who live in the middle Pacific, where scores of air nuclear bombs were detonated by the United States in the 1940s and '50s. In 1985, Congress approved a trust fund of $150 million to compensate the islanders for cancer and other medical distress they suffered as a result of the bombs.
Preston Truman, a member of the fallout victims' advocacy group Downwinders, thinks the Marshallese have been mired in terrible battles over the compensation.
"They've been having big fights that literally got to violence on a couple of occasions," said Truman, who is in contact with groups and advocates in the United States and overseas.
"As yet, they are still fighting about procedures and fighting about rules and regulations on how that money should be appropriated to the natives themselves," he said. "As a result, the money has not yet been provided to the victims."
In addition, military veterans who suffered cancer after they were exposed to radiation at the Nevada Test Site are not yet fully compensated, despite a bill to help them that passed in 1988, he said. "Out of several thousand claims that have been submitted by the veterans or their survivors, only 300 claims have been granted," he said.Many of the compensation checks have been relatively small, he added - "a few hundred dollars per month."
This is a warning that Utahns should heed, he said: Until the rules are in place and money has been appropriated, the battle is far from over.
"I think the Justice Department is probably going to put on very stringent rules that will cut out a lot of people who should be eligible," Truman said. "But I'm optimistic in the sense that Utah's congressional delegation and Utah's media are not likely to react very favorably to any such actions."
He predicts compensation checks may come in a year to 18 months, if the state's congressional delegation continues to be as vigilant as it has been.
The fallout bill gave the department six months to finish the rules; the deadline is April 5, 1991.
Kay Morell, an attorney on the Senate Labor Committee working with Hatch, told the Deseret News that the department seems to be on schedule on writing the regulations.
Morell said the department was directed by Congress to write a large number of regulations on different subjects and was working as rapidly as possible. He said that as of Friday he believes Justice would complete the fallout victims' compensation rules on time.
"Right now the Justice Department is just putting the program together," said Joe Krovisky, spokesman for the department. "They are drafting language to describe how the program would work."
Among the topics to be covered by the draft are definitions of which illnesses are covered, how victims qualify for the compensation, how the program should be structured and the process for getting the money. All of this will be included in the written regulations, he said.
"What they have to do is define the illnesses in the legislation and then put together people who are familiar with that area and have that expertise, just to process the claims and understand the terms," Krovisky said.
At the Deseret News' request, Art Kingdom, Owens' press secretary, checked with the department directly. He said the issue was complicated by a later bill giving compensation to civilian workers at the Nevada Test Site.
"The Justice Department is breaking down the language of the laws and to that extent is classifying what diseases are to be covered," he said.
Fears have been expressed that the department's rules will force claimants into an adversarial hearing, with testimony taken and attempts made to show that they really don't qualify.
But Kingdom said this is not the intent of the law. He said he spoke with a Justice Department lawyer who "made it clear that whatever regulations are written . . . (will) reflect what's in the law and the legislative intent. They're perfectly aware of legislative intent."
Once the proposed regulations are published in the Federal Register, there will be a public comment period.
"I guess there may be room for concern as to how the law may be read by the Justice Department, but Wayne and Senator Hatch are clear about what they meant. So in the comment period they will clarify whatever errors they see."
Another issue is whether lawyers should be involved in the first stages of claim-filing.
"We're encouraged by the action taken by Congressman Hansen's (Rep. Jim Hansen, R-Utah) office," said the Downwinders' Truman. "He wants to amend the bill so that attorneys aren't required unless the claim is denied."
With hundreds of millions of dollars at stake and the possibility that lawyers could get up to 10 percent of the victims' compensation, Hansen, Truman and others worry that lawyers will go into a feeding frenzy over the tragic issue.