The Oceans in the Nuclear Age : Legacies and Risks: Expanded Edition [1 ed.] 9789004279988, 9789004279780

Citation preview

The Oceans in the Nuclear Age

Amsterdam Studies in Classical Philology Edited by

Albert Rijksbaron Irene J.F. de Jong Caroline Kroon

VOLUME 16

The Oceans in the Nuclear Age Legacies and Risks Expanded Edition Edited by

David D. Caron and Harry N. Scheiber

A law of the sea institute publication

Leiden | boston 2014

The Library of Congress has cataloged the earlier hardcover edition as follows: The oceans in the nuclear age : legacies and risks / edited by David D. Caron and Harry N. Scheiber. p. cm. Includes bibliographical references and index. ISBN 978-90-04-15675-3 (hardback : alk. paper) 1. Radioactive waste disposal in the ocean (International law) 2. Radioactive substances—Transportation (International law) 3. Nuclear fuels—Law and legislation. 4. Marine pollution—Law and legislation. 5. Hazardous substances—Law and legislation. 6. Law of the sea. 7. Spent reactor fuels. 8. Security, International. I. Caron, David D. II. Scheiber, Harry N. K3671.O24 2009 344.04’626—dc22 2009029368

ISBN 978 90 04 27978 0 (paperback) ISBN 978 90 04 27998 8 (e-book) Copyright 2014 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

CONTENTS Preface and Acknowledgements  ...................................................... Preface to the Expanded Edition  ..................................................... List of Treaties and Other Official Acts  . ........................................ List of Cases  . .......................................................................................

ix xiii xv xxi

part one

Introduction Chapter One  Assessing the Impact of the Nuclear Age on the Oceans and Its Legal Regime  ................................................ David D. Caron and Harry N. Scheiber

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part two

Radioactive Wastes in the Oceans: Managing the Past and Considering the Future Chapter Two  Deep Sea Impacts  ................................................... Hjalmar Thiel Chapter Three  Risk and Vulnerability at Contaminated Sites in the Pacific and Australian Proving Grounds from a ‘Long-Term Stewardship’ Perspective: What Have We Learned?  ................................................................................... Thomas M. Leschine Chapter Four  Legacies and Perils from the Perspective of the Republic of the Marshall Islands Nuclear Claims Tribunal  ........................................................................................... Philip A. Okney Chapter Five  The Legacy of French Nuclear Testing in the Pacific  ............................................................................................... Laurence Cordonnery

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39

49

69

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contents

Chapter Six  Hazardous Substances and the Baltic Sea  ............. Malgosia Fitzmaurice

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Chapter Seven  New Opportunities and Deep Ocean Technologies for Assessing the Feasibility of Sub-Seabed High-Level Radioactive Waste Disposal: The Application of 21st Century Oceanography to Solving Outstanding Problems  .......................................................................................... 107 Daniel J. Fornari Chapter Eight  Sub-Seabed Disposal of High Level Radioactive Waste: The Policy Context Then and Now  ......... 125 Edward L. Miles part three

The Ocean Transport of Radioactive Fuel and Waste Chapter Nine  Ocean Transport of Radioactive Fuel and Waste  . .............................................................................................. 147 Jon M. Van Dyke† Chapter Ten Transportation of Radioactive Materials through the Caribbean Sea: The Development of a Nuclear-Free Zone  ......................................................................... 169 Luis E. Rodríguez-Rivera Chapter Eleven  Ocean Transport of Radioactive Fuel and Waste: A Japanese Perspective  . ................................................... 197 Masahiro Miyoshi Chapter Twelve  Navigation of Ships with Nuclear Cargoes: Dialogue between Flag and Coastal States as a Method for Managing the Dispute  ................................................................... 217 Tullio Treves



contents

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part four

Nuclear Weapons and Weapon Grade Material on the Oceans Chapter Thirteen  Maritime Terrorism and the International Law of Boarding of Vessels at Sea: Assessing the New Developments  ........................................................................ 239 Ted L. McDorman Chapter Fourteen  The Proliferation Security Initiative and Asia  ................................................................................................... 265 Mark J. Valencia Chapter Fifteen  The Proliferation Security Initiative: Amending the Convention on the Law of the Sea by Stealth?  ............................................................................................. 285 Donald R. Rothwell Chapter Sixteen  Cargos of Doom: National Strategies of the U.S. to Combat the Illicit Transport of Weapons of Mass Destruction by Sea  ......................................................................... 295 Craig H. Allen Chapter Seventeen  Nuclear-Weapon-Free Zones and Maritime Transit of Nuclear Weapons  ...................................... 337 Scott Parrish Chapter Eighteen  Oceans in a Nuclear Age: Security Concerns of the United States  ..................................................... 353 Michael J. Matheson Appendix A. United Nations Security Council Resolution 1540 (2004)  . .................................................................................... 361 Appendix B. Interdiction Principles for the Proliferation Security Initiative  ........................................................................... 365 Appendix C. The Combating Proliferation of Weapons of Mass Destruction Act  .................................................................... 367

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contents part five

Nuclear Activities and Radioactive Waste in the Arctic Chapter Nineteen  Canada, The United States and the Northwest Passage  ......................................................................... 373 Elizabeth B. Elliot-Meisel Chapter Twenty  The Russian Approach to the Protection of the Arctic Seas from Radioactive Wastes  .................................. 393 Alexander S. Skaridov Chapter Twenty-One  Arctic Nuclear Pollution  ......................... 425 Lakshman D. Guruswamy Chapter Twenty-Two  Nuclear Transport along the Northern Route and Nuclear Waste Dumping in the Barents and Kara Seas  . ........................................................................................ 467 R. Douglas Brubaker part six

Concluding Discussion Chapter Twenty-Three  Reflections on the Theme of the Oceans in the Nuclear Age  . ......................................................... 509 Bernard H. Oxman Chapter Twenty-Four  The Oceans in the Nuclear Age: Challenges, Questions and Possibilities  ..................................... 515 David D. Caron Chapter Twenty-Five  Nuclear Risks in Coastal Areas: Legal and Regulatory Responses   ........................................................... 535 Todd Emerson Hutchins Abbreviations  ...................................................................................... Selected Bibliography  ......................................................................... A Note on Radioactive Materials and their Measurements  . ...... List of Contributors  . .......................................................................... Index  .....................................................................................................

575 581 593 597 599

PREFACE AND ACKNOWLEDGEMENTS The Oceans in the Nuclear Age Project of the Law of the Sea Institute at the University of California Berkeley’s School of Law is a multi-year research effort to explore both the legacies of the nuclear age for the oceans and the not always evident but present perils that age yet poses. In June of 2004, the Institute held a workshop with its advisors and other experts focusing on the directions to be taken within the research initiative. On the basis of those discussions, the Institute held a conference on February 10 and 11, 2006. This volume brings together the papers begun at that Conference and several other commissioned works. The Project and this book would not have been possible without the dedication of numerous individuals over the past few years. Assisting in the establishment of the Project’s website and the 2004 workshop were Patricia Hewitson, Joseph Morris and Kevin Ho. Their creative efforts allowed the Project’s website to come into being. The 2004 Workshop was a significant step towards developing the research design of the project. We are thankful to the following individuals for their participation in that important step: John Briscoe, Esq., Briscoe Ivester & Bazel LLP, San Francisco; Ambassador Gudmundur Eiriksson, Iceland; Professor Lakshman Guruswamy, University of Colorado; Dr. Gail Osherenko, University of California Santa Barbara; Professor Bernard H. Oxman, University of Miami; and Professor Jon van Dyke, University of Hawai’i. The 2006 Conference was organized by the Institute’s Co-Directors in cooperation with Professor Jon M. Van Dyke of the Richardson School of Law, University of Hawai’i. Professor Van Dyke, a past Director of the Law of the Sea Institute, continues to be a key force in the work of the Institute, and we are particularly appreciative of his many efforts. Cooperating Sponsors for the 2006 Conference included: Harte Research Institute for Gulf of Mexico Studies, Texas A&M University; William S. Richardson School of Law, University of Hawai’i; University of Miami School of Law; University of Sydney School of Law, Australia; University of Washington School of Law; and Scott Edelman, Esq., Gibson, Dunn & Crutcher LLP (Los Angeles) & Susan Edelman,



preface and acknowledgements

Esq. The Conference Coordinator was Karen Chin and Conference Assistants were Toni Mendicino, Takeshi Akiba, Kathryn Mengerink, Anderson Berry and Jordan Diamond. In addition to the Conference participants appearing as authors in this volume, numerous scholars and officials who participated in the February 10–11 2006 Conference, greatly enriched the work of the project. They include: Professor Richard J. McLaughlin, Harte Research Institute for Gulf of Mexico Studies, Texas A&M University; John Briscoe, Esq., Briscoe Ivester & Bazel LLP, San Francisco; Judge Choon-Ho Park, International Tribunal for the Law of the Sea; Commander Glenn M. Sulmasy, U.S. Coast Guard Academy; Professor Todd R. LaPorte, Department of Political Science, University of California Berkeley; Professor Jack I. Garvey, University of San Francisco School of Law; Vice-Admiral Hideaki Kaneda (Ret.), The Okazaki Institute, Japan; Professor Yann-Huei Song, Institute of European and American Studies, Academia Sinica, Taiwan; Professor Darleane C. Hoffman, Lawrence Berkeley National Laboratory, University of California at Berkeley; Professor Harold Johnston, Department of Chemistry, University of California at Berkeley; and Judge Anthony Amos Lucky, International Tribunal for the Law of the Sea. Particular appreciation is extended to Andrew Berry, Mani Sheik and Peter Z. Caron for their assistance in researching the story of the U.S.S. Independence and in conference preparations. Finally, our deep appreciation goes to several U.C. Berkeley School of Law students who assisted in the editing of this volume: Jordan Diamond; Louise Gibbons; Jennifer Jeffers; and Rebecca Callaway. Marina L. Caron provided the illustrations at the start of each Part of this volume. In addition, two members of the School of Law’s staff did outstanding work in the final assembly and editing of the volume: Helton DeCarvalho and Toni Mendicino. We also wish to acknowledge the support of the Institute of International Studies at the University of California Berkeley under the Crossing Borders Program funded by the Ford Foundation; the U.C. Berkeley School of Law and its Dean, Christopher Edley; the Institute for Legal Research of the University of California Berkeley; the California Sea Grant Program, University of California; the Sho Sato Program in Japanese and U.S. Law, U.C. Berkeley; and the University of California Marine Council, University of California Office of the President.



preface and acknowledgements

David D. Caron C. William Maxeiner Distinguished Professor of Law Co-Director, Law of the Sea Institute University of California Berkeley Harry N. Scheiber Stefan A. Riesenfeld Professor of Law and History Co-Director, Law of the Sea Institute University of California Berkeley Berkeley, California August 2009

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Preface to the Expanded Edition On March 11, 2011, an earthquake of tremendous magnitude occurred off the coast of Japan. This earthquake struck Japan with great destructive force and, even more tragically, triggered powerful tsunami waves that brought great loss of life and unimaginable damage to Japan. That combination of disasters together provided the basis for nuclear accidents at three reactors at the coastal Fukushima Daiichi Nuclear Power Plant. Radioactive materials were released into the air and nearby coastal areas. The local prefecture less than a month later banned the fishing of the sand lance, a small fish, having found the species to contain radioactive cesium above legal limits. A catastrophe, like lightning, illuminates the world unexpectedly. And in the moment of clear vision that accompanies a catastrophe such as this one, we are abruptly reminded of the fragility that we all share. Few aspects of the future are certain. Yet, it is certain that catastrophes, attended by widespread suffering, are a part of our collective future. No one should be surprised to wake tomorrow to learn of another earthquake or another accident at a nuclear power plant. Unfortunately, however, the international legal order addressing this certain future, particularly in comparison to the way it addresses far less certain challenges in international affairs, is both relatively undeveloped in practice and unexamined in the academic legal literature. Efforts from the bottom up by groups of States develop only haphazardly. Driven today by one disaster, tomorrow by another, the ad hoc incoherence of legal and institutional response mirrors the fortuity of the catastrophes humanity encounters. The Fukushima incident made evident a critical aspect of how the nuclear age has touched the oceans that was not among topics considered separately in the original edition of this book. This expanded edition thus adds, in our new Chapter 25 by Lieut. Todd Hutchins, a discussion of both the Fukushima incident and the more general question of coastal siting of nuclear power plant. There is an obvious need now for fresh scholarship that addresses the challenges that face the oceans in the nuclear age, and that engages with the substantial and complex legacies and risks that so urgently require a fuller understanding. As we state in the preface to the original edition of this work, the

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preface to the expanded edition

purpose is to advance that cause, rather than seek to generate either hysteria or complacency. We thus gratefully acknowledge the decision of Brill/Nijhoff Publishers to make available this new edition in a softcover format. It becomes the latest in a series of books published by this distinguished house under auspices of the Law of the Sea Institute at UC Berkeley. David D. Caron Dean and Professor of Law The Dickson Poon School of Law King’s College London Harry N. Scheiber Stefan Riesenfeld Professor, Emeritus Director, Law of the Sea Institute School of Law, University of California, Berkeley

LIST OF TREATIES AND OTHER OFFICIAL ACTS 1945 United Nations Charter. 1948 Universal Declaration of Human Rights, Dec. 10, 1948, U.N. Doc. A/810. 1955 Basic Law of Atomic Energy, 1955 (Japan). 1958 Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 516 U.N.T.S. 205. 1960 Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 U.N.T.S. 251. Paris Convention on Nuclear Third Party Liability. 1963 Vienna Convention on Civil Liability for Nuclear Damage, May 21, 1963, 1063 U.N.T.S. 265. Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 704 U.N.T.S. 219. 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelolco), Feb. 14, 1967, 634 U.N.T.S. 281. 1969 National Environmental Policy Act, 42 U.S.C. § 4321. American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123. Vienna Convention on the Law of Treaties. 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 860 U.N.T.S. 105. 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 974 U.N.T.S. 178. Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, Dec. 17, 1971, 974 U.N.T.S. 255. 1972 United Nations Conference on the Human Environment, June 5–16, 1972, Stockholm, Swed., Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1. Convention on the Prevention of Maritime Pollution by Dumping Wastes and Other Matters (London Convention), Dec. 29, 1972, 1046 U.N.T.S. 120.

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list of treaties and other official acts

1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 1035 U.N.T.S. 167. 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area (1974 Helsinki Convention), March 22, 1974, 1507 U.N.T.S. 167. Safety of Life at Sea Convention, Nov. 1, 1974, 1184 U.N.T.S. 2. 1976 Barcelona Convention on the Protection of the Mediterranean Sea against Pollution (Barcelona Convention), Feb. 16, 1976, 1102 U.N.T.S. 44. 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, July 7, 1978, http://www .imo.org/conventions/contents.asp?doc_id=651&topic_id=257. 1979 International Convention against the Taking of Hostages, Dec. 17, 1979, 1316 U.N.T.S. 205. 1980 IAEA Convention on the Physical Protection of Nuclear Material, March 3, 1980, INFCIRC/274/Rev.1. Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, 1329 U.N.T.S. 47. 1982 Convention on the Law of the Sea, Dec.10, 1982, 1833 U.N.T.S. 3. United Nations Convention on the Law of the Sea. 1985 Compact of Free Association between the United States of America and the Republic of the Marshall Islands, Pub. L. No. 99–239, 99 Stat. 1778 (1986). South Pacific Nuclear Free Zone Treaty, Aug. 6, 1985, 1445 U.N.T.S. 177. 1986 Convention for the Protection of Natural Resources and Environment in the South Pacific Region and Related Protocols, Nov. 24, 1986, 26 I.L.M. 38. 1987 Marshall Islands Nuclear Claims Tribunal Act, 42 MIRC Ch. 1 §§101–33 (1987). 1988 Canada-United States Agreement on Arctic Cooperation, Jan. 11, 1988, T.I.A.S. 11565. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Feb. 24, 1988, 27 I.L.M. 627. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, March 10, 1988, 1678 U.N.T.S. 304.



list of treaties and other official acts

xvii

Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention), March 10, 1988, 1678 U.N.T.S. 221. Joint Protocol Relating to the Application of the Vienna Convention on Civil Liability for Nuclear Damage and the Paris Convention on Third Party Liability in the Field of Nuclear Energy, Sept. 21, 1988, 1672 U.N.T.S. 301. Convention Against Illicit Traffic in Narcotic Drugs and Psycho­ tropic Substances, Dec. 20, 1988, 28 I.L.M. 493. 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, March 22, 1989, 1673 U.N.T.S. 57. United States-Soviet Union “Uniform Interpretation of Rules of International Law Governing Innocent Passage,” 28 I.L.M. 1444 (1989). 1990 IAEA Code of Practice on the International Transboundary Movement of Radioactive Waste, Sept. 21, 1990, 30 I.L.M. 556. 1991 Bamako Convention on the Ban to Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, Jan. 30, 1991, 2101 U.N.T.S. 242. Convention on the Marking of Plastic Explosives for the Purpose of Detection, March 1, 1991, untreaty.un.org/English/Terrorism/Conv10.pdf. Strategic Arms Reduction Treaty, July 31, 1991, http://www .state.gov/t/ac/trt/18535.htm. 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (1992 Helsinki Convention), April 9, 1992, 2099 U.N.T.S. 197. The United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107. United Nations Conference on Environment and Development, June 3–14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (Vol. I). Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 142. Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Sept. 22, 1992, 32 I.L.M. 1069.

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list of treaties and other official acts

1993 Strategic Arms Reduction Treaty II, Jan. 3, 1993, http://www .state.gov/t/vci/trty/102887.htm. 1994 Convention on Nuclear Safety. 1995 Agreement for the Implementation of Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stock (Straddling Stocks Agreement), 34 I.L.M. 1547. Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (Waigani Convention), Sept. 17, 1995, 2161 U.N.T.S. 93. 1996 Izmir Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and Their Disposal, available in Josette Beer-Gabel, Recueil Des Traites Relatifs A La Mediterranee (1997). Combating Proliferation of Weapons of Mass Destruction Act, Pub. L. No. 104–201, Div. A, Title XIV, § 1402 (1996), 110 Stat. 2715, codified at 50 U.S.C. § 2301. 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, Sept. 5, 1997, 2153 U.N.T.S. 357. International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, U.N. Doc. A/RES/52/164, S. Treaty Doc. No. 106–6 (1999). Vienna Convention on Civil Liability for Nuclear Damage. 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447. 1999 Law on the Prohibition of the Use of Nuclear Fission for Energy Generation: Bundesgesetz uber die zivilrechtliche Haftung fur Schaden durch Radioaktivitat (Atomhaftungsgesetz 1999—AtomHG 1999, BGB1.I No. 170/1998) (Austria). International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 54/109, U.N. Doc. A/RES/54/09 (Dec. 9, 1999). International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships, under the International Convention for the Safety of Life at Sea of November 1, 1974, May 27, 1999.



list of treaties and other official acts

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2000 Legal and Governmental Infrastructures for Nuclear Radiation, Radioactive Waste and Transport Safety. 2002 International Ship and Port Facility Security Code (ISPS Code) of 2002, IMO Pub.I116E. Organization of American States, Special Security Concerns of Small Island States of the Caribbean, AG/RES. 1886 (XXXIIO/02) (June 4, 2002). World Summit on Sustainable Development, 17th Plenary Meeting, Sept. 4, 2002, Johannesburg Declaration on Sustainable Development, U.N. Doc. A/CONF.199/20. Law for Nuclear Safety, No. 18.302 (1984) (Chile) (amended 2002). 2003 Law on Norway’s Territorial Sea and Contingency Zone, Norwegian Laws, June 27, 2003, No. 57 (Norway). Interdiction Principles for the Proliferation Security Initiative, done at Paris, Sept. 4, 2003, http://www.state.gov/t/np/rls/ fs/23764.htm. Safety Guide on Site Evaluation for Nuclear Installations. 2004 Measures to Strengthen International Cooperation in Nuclear, Radiation and Transport Safety and Waste Management, IAEA General conference Resolution GC(48)/RES/10 (Sept. 24, 2004). 2005 International Meeting to Review the Implementation of the Programme of Action for the Sustainable Development of Small Island States, Port Louis, Mauritius, Jan. 10–14, 2002, Draft Strategy for the further Implementation of the Programme of Action for the Sustainable Development of Small Island States, U.N. Doc A/CONF.207/CRP.7. International Atomic Energy Agency, May 20, 2005, Review Conference of the Nuclear Proliferation Treaty, U.N. Doc NPT/ CONF.2005/MC.III/CRP.1. U.S. Department of State, Bureau of Nonproliferation, “The Proliferation Security Initiative (PSI),” May 26, 2005, www.state .gov. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Amendments, Oct. 14, 2005, www.imo.org. Oceans and the Law of the Sea, G.A. Res. 60/30, U.N. Doc A/RES/60/30 (Nov. 29, 2005). 2006 Safety Fundamentals on The Safety of Nuclear Installations.

LIST OF CASES International Courts and Tribunals International Court of Justice Corfu Channel Case (United Kingdom v. Albania), 1949 I.C.J. 4. Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116. The North Sea Continental Shelf Cases (F.R.G. v. Den./F.R.G. v. Neth.), 1969 I.C.J. 3. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 4. Advisory Opinion on the Legality of or Use of Nuclear Weapons, 1996 I.C.J. 226. International Tribunal for the Law of the Sea The MOX Plant (United Kingdom v Ireland), Order of December 3, 2001. Case Concerning Land Reclamation by Singapore In and Around the Straits of Johor (Malaysia v. Singapore), Order of 8 October 2003. Ad hoc Arbitration Lac Lanoux Arbitration, 24 I.L.R. 101 (1957). Nuclear Claims Tribunal for the Marshall Islands In re the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902 (Apr. 13, 2000). In re the People of Bikini, et al., Claimants for Compensation, NCT No. 23–04143 (Mar. 5, 2001). National Courts Japan X v. The State of Japan, (Tokyo District Court, September 30, 1987).

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list of cases

United Kingdom Merlin v. British Nuclear Fuels, PLC, 2 QB 557 (1990). United States of America Mayaguezanos por la Salud y el Ambiente v. United States, 38 F. Supp. 2d 168 (D.P.R. 1999), affirmed on other grounds in Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297 (1st Cir. 1999). Kimball Laundry Co. v. United States, 338 U.S. 1 (1949).

part one

introduction

CHAPTER one

Assessing the Impact of the Nuclear Age on the Oceans and Its Legal Regime David D. Caron and Harry N. Scheiber I.  Introduction There are few moments which may be said to fundamentally alter the course of human events. The advent of the nuclear age in 1945 is clearly one of them. The nuclear age has many dimensions, the implications of which, seven decades later, are still unfolding. The oceans are not the focus of the nuclear age, but the affairs of the oceans are deeply woven into its history. This book considers how the nuclear age has affected the oceans and the legal regime of the oceans. The Law of the Sea of Institute undertook the Oceans in the Nuclear Age Project because we found the knowledge in this field to be highly fragmented. Consequently, there exists a surprising gap in research on the overall question of the impact of the nuclear age on the oceans and on ocean law and policy, a question of tremendous scope. This book presents the results of the first phase of that research project. For us, this book serves to frame the complex multidimensional set of relationships between the oceans and the nuclear age, uncovers patterns of impact and response in the legal regime, and raises further questions for research. In undertaking this study, we and our advisors recognized at the outset the highly political character of nuclear issues. It is not the intent of the Law of the Sea Institute to take a position in what are often fierce debates. Rather, we seek to understand and to illuminate the various perspectives. Similarly, the Institute in referring to scientific understanding of the risks posed by radioactive materials or various nuclear activities emphasizes that it does not undertake such scientific research itself. There are persistent contradictions and uncertainties in this field that need be emphasized. Just how dangerous, for example, are the radioactive wastes that have been dumped on the seabed at various locations around the globe? Although there is a sense that radioactive materials



david d. caron and harry n. scheiber

are deadly in extremely small quantities, little evidence appears in this volume of continuing damage thus far from this dumped material. The critical point is that it is not the intent of this study to generate either complacency or hysteria as to the present situation. Instead, it seeks to examine, rather than ignore, a complex situation. In this Introduction, we first discuss in more detail the impetus and reasons for this study; second, the care that must be exercised with assumptions or intuitions on the questions presented; and third and last, the organization of this book. II.  Impetus for the Study The impetus for this study comes from three circumstances: the significance of the question presented; our assessment that knowledge concerning the impact of nuclear age on the oceans and its legal regime is scattered among pockets of expertise; and the fact that to our knowledge there has been no previous attempt to consider the impact of the nuclear age on the oceans and the legal regime that governs those oceans. Three reasons occur to us for the surprising absence of research on the broad question of the oceans in the nuclear age, although it must be said these explanations only beget further questions in turn. First, in undertaking this project, it quickly became apparent to us that knowledge of the impact of the nuclear age on the oceans is fragmented into knowledge of particular issue areas, particular geographic locations or particular disciplines. Thus someone might know much about nuclear testing in the Marshall Islands, yet know very little about the testing in French Polynesia or the Russian Arctic. Likewise, someone might know much about ocean dumping of nuclear waste but very little about nuclear free zones. In part, this fragmentation of knowledge reflects the breadth of the subject. It also reflects the fact   Our experience also was an impetus to the study. In 1982, while a law student, Professor Caron spoke on then contemplated deep seabed burial of high level radioactive wastes. “Ocean Disposal of Radioactive Wastes: International Law and California,” presented at a California Coastal Commission Symposium, Asilomar, CA, Nov. 7–10, 1982, published in 2 Ocean Studies Symposium 591–613 (California Coastal Commission, ed., 1983). (This deep sea bed burial is a possibility revisited by Dr. Fornari and Professor Miles in Chapters 7 and 8 respectively of this volume). Later, from 1994 to 1996, Professor Caron served as counsel to the Defender of the Fund for the Marshall Islands Nuclear Claims Tribunal.



assessing the impact of the nuclear age 

that the study of the legacies of the nuclear age often are quite local and that governmental agencies (to the extent that they often are the ones that conduct surveys) tend to focus only on their geographic area of responsibility. Second, it appears that the potential immensity of the questions involved, the frightening aspect of nuclear issues to the public and the absence of easy solutions all work together to cut off inquiry. Speaking with a governmental official of a Nordic country, we asked whether his nation was concerned with the possible impact that nuclear wastes dumped by the then Soviet government in the Arctic might have on fisheries in the region. He replied that of course his country was concerned, but it did not know that the wastes in fact had any impact yet, it was unclear what could be done about the dumped wastes even if an impact were found, and all that might result from focussing on the topic would be the scaring of the public and the injuring of the market for what is, in all likelihood, a fishery safe for human consumption. The first two reasons, however, do not seem to be sufficient given that more concern is given to the same issues on land. For example, there are land areas around the world confronting dangerous legacies or future risks of the nuclear age that are studied far more extensively. This suggests a third reason for the absence of research on the oceans in the nuclear age: a reason of long lineage. The oceans, except for the coastal region, stand apart from humanity and our consciousness. If “out of sight is out of mind,” then it is this quality of the oceans that all too often makes it easy to put off consideration of this aspect of the legacies of the nuclear age. III.  Assumptions and Surprises: The Example of the U.S.S. Independence Our knowledge of the oceans in the nuclear age is not only fragmented in space and in expertise, but also in time. Things that happened only fifty years ago are receding from common knowledge and even the knowledge of experts. Notwithstanding such lost knowledge, and the lack of synthetic works regarding the oceans in the nuclear age, we still    See, e.g., Howard Ball, Justice Downwind: America’s Atomic Testing Program in the 1950’s (1986).



david d. caron and harry n. scheiber

Photo courtesy of U.S. Navy Archives. An official caption to this photo reads “View of port quarter of USS Independence (CVL 22) showing blast damage caused by the “Able Day” atomic bomb air burst on 1 July 1946.”

Figure 1. U.S.S. Independence Following Test Able

approach the subject with assumptions and intuitions. An intuition we held in approaching this topic was that there are likely to be several particular areas highly affected by the nuclear age through, for example, the testing of weapons, and that such areas are few in number. The story of the U.S.S. Independence reminds of us the scholar’s duty to take care with intuitions and assumptions. The atmospheric testing of nuclear weapons by the United States in the Marshall Islands began on the 1st of July 1945. The movies of the first tests show that the lagoon at Eniwetok was dotted with ships drawn from both the Allied and Axis fleets following the end of World War II. One’s intuition might suggest those ninety-five vessels rest at the bottom of the lagoon. This would be incorrect. David Bradley was a medical doctor who participated in the early tests in the Marshall Islands aboard aircraft circling the test site. In 1948,



assessing the impact of the nuclear age 

he published his diaries of that experience. The Prologue, penned in San Francisco, reads: Not long ago San Francisco welcomed home the Independence. . . . She remains an outcast ship. The disease of radioactivity lingers on her decks and sides. . . . Blasted first from the air, she survived; smothered later under tons of water, she rode out the tidal wave of second shot and remained afloat. But the invisible poison of radioactivity she could not throw off. . . . She had to be towed from Kwajalein home.

The U.S.S. Independence was not, as one might assume, at the bottom of the lagoon; it was in San Francisco harbour as “an outcast ship.” The Independence, originally built as a light cruiser, was converted to a small aircraft carrier, joining the Pacific Fleet during World War II. She participated in the Palau operation, air strikes in the Philippines and Okinawa, the Battle of Leyte Gulf and conducted air strikes against the Japanese Home Islands. In 1946, the Independence was chosen to serve in Operation Crossroads as a target for the testing of two 23-kiloton atomic bombs in the Bikini Atolls in the South Pacific. The first bomb, “Shot Able,” was exploded in the air in a manner similar to the bombs dropped in Hiroshima and Nagasaki. The second bomb, “Shot Baker,” was an underwater bomb set off on July 25, 1946. “The blast created an unexpectedly large column of water—about 2 million tons’ worth—that reached a mile into the sky and then rained high amounts of nuclear fission products (the Baker bomb was made of plutonium) over most of the 95 ships that had been purposely anchored in the vicinity as targets.”10 The blast “created the largest waves then known to man. Measuring devices were so damaged by the explosion that it’s impossible to know exactly how tall the waves were, but photographic estimates put the first at about 94 feet in height.”11

 David Bradley, No Place to Hide (Little Brown & Co., 1948).   Id. at xi.     http://www.history.navy.mil/ (last visited August 1, 2008).     Id.    Lisa Davis, “Fallout,” SF Weekly (May 2, 2001) [hereinafter “Fallout Part I”].     Id.     Id. 10   Id. 11   Id.    



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The Independence was only 560 yards from the blast,12 and it caught fire as the blast touched off fuel and ammunition stored within it.13 The blast blew off or destroyed the planes parked on the flight deck and destroyed parts of the flight deck itself.14 Ironically, “the water pumped from the lagoon to put out th[e] fire[] led to more extensive contamination tha[n] that caused by the explosion.”15 As Bradley later looked upon the Independence in San Francsico Bay, he was prompted to write: She was anchored offshore on strict isolation, a leper. As the papers said: ‘Newsmen and the public will not be allowed to approach the Independence. It is best the Navy believes to view this awful symbol of a possible future from a San Francisco hillside.’ Perhaps it is good then that the carrier Independence should return like the prodding of a bad conscience. What happened at Crossroads cannot be buried with ships in Bikini lagoon or towed away to rot on the beaches of Kwajalein. What happened at Crossroads was the clearest measure yet of the menace of atomic energy.16

There were other plans for the Independence, however. The Independence was docked at Hunter’s Point inside San Francisco Bay just on the south side of the city of San Francisco. There it served for three years as a central component of what was called the National Radiological Decontamination Laboratory. On its arrival, Navy personnel burned some 610,000 gallons of contaminated fuel from the Independence and two other test ships at Hunters Point.17 There were attempts to decontaminate the hull by sandblasting. At the end of these tests, the Independence was designated for disposal at sea. Given its impending disposal, unrelated nuclear waste in the area awaiting disposal was stowed aboard the Independence so that it also would be disposed of at sea. In January, 1951, the Independence, filled with nuclear waste, was towed to an area near the Farallon Islands. There, it was not scuttled but instead used as a target for aerial bombardment.18 At the time, “Navy officials told reporters that the ship  Lisa Davis, Fallout, SF Weekly (May 9, 2001) [hereinafter “Fallout Part II”].   http://www.history.navy.mil/ac/bikini/bikini3.htm (last visited August 1, 2008). 14   Id. 15   Id. 16   Id. at xii–xiii. 17  Lisa Davis, “Hot Story: Navy Admits Burning 600,000 Gallons of Radioactive Fuel at S.F. Shipyard,” SF Weekly (May 21, 2003). 18   http://www.history.navy.mil/ (last visited August 1, 2008). 12 13



assessing the impact of the nuclear age 

Photo courtesy of Navy Archive. U.S.S. Independence, filled with radioactive wastes is used for aerial bombardment target practice and sunk at the Farallon Island dump site in 1951.

Figure 2. U.S.S. Independence Sunk in Target Practice

had been sunk in a weapons test some 200 miles off the coast.”19 But investigations conducted by researchers narrowed the hull’s location down to in or near the Farallon undersea nuclear dump site, a location now confirmed on the website of the U.S. Geodetic Survey.20 The story of the U.S.S. Independence is a stark reminder that the nuclear age has touched the oceans in ways both more complex and subtle than we might imagine. It likewise is a reminder that we need be ready to revisit our assumptions concerning the relationship of the nuclear age to the oceans.

 Fallout Part II, supra n. 8.   http://walrus.wr.usgs.gov/farallon/index.html (last visited August 1, 2008).

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david d. caron and harry n. scheiber IV.  The Organization of this Volume

A.  An Initial Approach to the Subject: A Focus on the Nuclear Related Activities Involved The organization of this book was greatly influenced by our experience with the construction of the web-based research and educational tool that preceded and now complements it. From our experience with other interdisciplinary work, we decided to organize the website and the first phase of the investigation in terms of nuclear related activities, rather than according to questions that arise in various disciplines. The idea is that a focus on activities provides common focal points for scholars from different areas, while disciplinary perspectives sometimes can serve to isolate researchers from one another. In later phases of the project, particular disciplinary perspectives will be emphasized. The nuclear related activities we identified are: – The atmospheric, underground or underwater testing of nuclear weapons in the ocean or adjacent to ocean areas; – The dumping of low and high level nuclear wastes into the ocean; – The burial of radioactive wastes in the seabed floor; – The accidental loss of nuclear weapons or nuclear powered vessels at sea; – The transport at sea of nuclear waste or depleted/reprocessed nuclear fuel; – The movement on, below, or above the surface of ocean of nuclear powered military vessels or of military vessels having on board nuclear weapons; – The transport at sea of nuclear weapons or technology by rogue states or terrorists organizations; and – The operation of nuclear power facilities and waste storage facilities in the coastal zone area. In approaching the subject in this way, it became apparent that there are yet other activities that may be thought of nuclear-related activities involving the oceans that are secondary in that they are responsive to the one of the primary activities listed above. For example, the establishment of oceanic nuclear free zones in which certain of the above listed nuclear related activities are prohibited or otherwise regulated is a responsive act.



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It likewise became apparent that there is an element of time to overlay onto these activities. Some of the activities listed are now prohibited and occurred only in the past. For these activities the research agenda focuses on the possible legacy of these activities (for examples, dumping, testing, and accidental loss of weapons). Other activities are ongoing and the research question not only concerns the legacy of that activity in the past and but also the law and policy concerning the risks posed by the activity as it proceeds (for example, the transport of depleted fuel). Finally, there are activities which occur only in contemplation and the research focus again is on the law and policy regarding the risks such activities would pose (for example, the deep seabed emplacement of nuclear wastes). B.  The Organization of this Book Following this introductory Chapter, this book takes the above initial focus on type of activity and groups particular questions into four Parts. 1. Part II—Radioactive Wastes in the Oceans: Managing the Past and Considering the Future Given that so much material has been dumped into the oceans over the centuries, it likely is not surprising to the reader that nuclear materials likewise have been dumped there. In Part II, seven Chapters consider aspects of how the oceans have been used as a dumpsite for nuclear wastes and may be so used again. Hjalmar Thiel in Chapter 2 provides an overview of what science knows of the nuclear materials which have been placed intentionally or accidentally into the oceans. As Thiel explains, much of the dumping of radioactive waste was intentional and monitored, albeit in a minimal manner. As a result of this intentional dumping, there are thousands of dumped barrels of radioactive wastes on the seabed. The activity is now prohibited, but what should be done regarding the barrels already there? Malgosia Fitzmaurice in Chapter 6 looks for possible analogies in the steps adopted in the Baltic region for managing the dumping of hazardous wastes in the Baltic Sea. In other instances, radioactive materials were introduced into the oceans incidentally to some other activity. In particular, the testing of nuclear weapons led to significant localized amounts of fallout into the oceans. And the former test sites in French Polynesia, the Marshall

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Islands, and Nova Zemlya have been transformed, more or less, into dumpsites for the radioactive materials that remained behind. Three chapters discuss this legacy of nuclear testing. Philip Okney serves as the Defender of the Fund for the Marshall Islands Nuclear Claims Tribunal. From the vantage point of that Tribunal’s efforts to award compensation for both the health consequences and property damage arising of the some sixty-seven tests by the United States from 1946 to 1958, Okney in Chapter 4 assesses what those tests have meant for that region. Laurence Cordenney, who has studied the French Polynesian test sites on the atolls of Moruroa and Fangataufa, addresses in Chapter 5 the legacy of testing also, but with a focus on the French test area. Thomas Leschine complements both of these contributions in Chapter 3 by focussing on the effort to restore former test site areas, primarily looking to the Marshall Islands but also to the British test area in the Maralinga Lands of Australia. Two other chapters discuss the possibility of burial of nuclear wastes in the deep seabed. Ed Miles, a member of the group of legal experts that focussed extensively on the burial of nuclear wastes in the deep seabed throughout the decade of the 1980s provides a personal history and perspective on the law in question and the politics of that period in Chapter 8. Dan Fonari, a deep ocean scientist at Woods Hole Oceanographic Institution, points in Chapter 7 to the possible return of the burial option, outlines reasons why such an option should be considered and describes the technology that would be involved. 2. Part III—The Ocean Transport of Radioactive Fuel and Waste For several reasons, spent nuclear fuel currently is transported by sea for reprocessing, primarily between Europe and Japan. Such ocean transport of significant amounts of radioactive material is controversial. The practice faces general objections from various non governmental organizations. A variety of more particularized concerns are raised by numerous coastal and island states. Concerns are raised about the environmental, security and health threats posed by such oceanic shipments. These concerns are raised both in policy and legal terms. This controversy is the focus of the four chapters of Part III. In policy terms, the debate involves assessments of risk and the economic and security (pointing out the relationship of reprocessing to nuclear non-proliferation efforts) rationales underlying such shipments. The legal questions considered include the right of passage of such ship-



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ments within the territorial sea waters and exclusive economic zones of the concerned coastal state, whether the right of passage requires prior notification to the coastal state, how the law on these matters is made and whether it is evolving, and the institutional framework in which the respective claims of states supporting and objecting to such shipments will be addressed. Jon van Dyke and Luis Rodriguez-Rivera in Chapters 9 and 10 recount the history of these shipments and the concerns expressed regarding them, with Rodriguez-Rivera’s chapter giving particularly attention to the response of Caribbean nations. Miyoshi Masahiro provides in Chapter 11 a Japanese perspective on this practice analyzing the right of such ships to pass through territorial seas and economic zones in terms of the 1982 Law of the Sea Convention. Finally, Tulio Treves in Chapter 12 looks ahead to the institutional context in which this controversy will be addressed and the possible dimensions along which the accommodation of various interests may be reached. 3. Part IV—Nuclear Weapons and Weapon Grade Material on the Oceans The movement of nuclear weapons, nuclear technology and nuclear powered vessels on the oceans gives rise to multiple concerns and is the focus of Part IV. On the one hand, the presence of nuclear powered vessels and nuclear weapons on ocean waters adjacent to coastal states can be sources of concerns for the populations of those coastal states either because there may be an accident or because there may be a conflict involving those armed forces. This type of concern is addressed by Scott Parrish in Chapter 17 where he examines the practice of states creating and joining regional nuclear weapon free zones agreements. On other hand, many states are concerned that nuclear technology or nuclear weapons will be transported illicitly at sea to terrorist organizations, ultimately endangering the security of multiple states. Ted McDorman, Mark Valencia, Donald Rothwell and Craig Allen in Chapters 13 through 16 examine the legal and policy responses to this possibility. These Chapters explore the Proliferation Security Initiative from several perspectives and discuss various law enforcement initiatives within the context of the International Maritime Organization. Michael Matheson, in a concluding essay included as Chapter 18, reflects on the view of a major power such as the United States on

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both the presence of its weapons and vessels on the sea and the possible diversion of nuclear weapon material and technologies to terrorist organizations. 4. Part V—Nuclear Activities and Radioactive Waste in the Arctic The Arctic region examined in Part V provides a case study of the various activities discussed in this volume. The Arctic was used as a significant disposal site by the Soviet Union for both liquid and solid nuclear wastes. Vessels with nuclear fuel and weapons have been lost in the Arctic. A possible alternate route contemplated for the transport of depleted nuclear fuel between Europe and Japan is the “Northern Route” above Russia. And nuclear powered warships with nuclear weapons aboard of at least the United States and Russia patrol beneath the surface of the Arctic. Amidst the steady, rapid retreat of summer ice in the Arctic, these issues, like many others in the region, will gain significance. Elizabeth Elliot-Meisel in Chapter 19 provides an historical and political context for the “Northwest Passage” side of the arctic while Douglas Brubaker in Chapter 22 provides a complementary comprehensive context for the “Northern Route” side of the Arctic. Alexander Skaridov and Lakshman Guruswamy provide in Chapters 20 and 21 respectively analyses of the complex situations of both the nuclear wastes that were dumped by the Soviet Union into the Kara and White Seas and the decommissioned nuclear submarines and nuclear wastes on shore in that region that still await disposal. The book concludes with reflections by Bernard Oxman in Chapter 23 and by David Caron in Chapter 24, and with a new Chapter 25 by Lieutenant Todd Hutchins, USN, on the 2011 coastal Fukushima Nuclear Power Plant incident. The topic of coastal nuclear power, as an activity distinct from all others discussed, would have formed its own “Part” in the original edition. Unlike the other activities discussed in the previous chapters of this book, the siting of nuclear power plants along the coast is neither on the ocean surface nor within the oceans, but rather is adjacent to the seas. A great many existing nuclear power plants have been situated on coastlines; others, even today, are in planning stages or under construction. And although a Russian manufacturer has offered to produce small nuclear power plants aboard barges to power nearby coastal areas, floating nuclear powered plants are limited at present to those aboard military vessels as the source of motive power.



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The Fukushima incident, however, has alerted thinking generally as to the unique risks posed by coastal nuclear power plants for nearby and distant marine ecosystems. The concluding reflections already presented, above, are thus further reinforced by author Hutchins’s analysis of the coastal-siting issues that have emerged since the Fukushima disaster, giving an urgent new dimension to the continuing public discourse regarding the oceans in the nuclear age. The reader will find that the questions presented involve a myriad of acronyms. We have tried to standardize the acronyms employed and list them at the end of the volume. At the end of the volume, the reader will also find a note on radioactive materials and their measurements. V.  Conclusion The production of this volume has made us more convinced of the importance of the questions presented and the need for research in the field. To study the impact of the nuclear age on the oceans is to reopen recent history from a different and fresh angle. That history can be surprising, and, while it is sometimes of concern, it is our hope that this volume will extend our understanding of both the historical events discussed and the legacy of those events, which continues into the present day.

part two

radioactive wastes in the oceans: managing the past and considering the future

CHAPTER two

Deep Sea Impacts Hjalmar Thiel* I.  Introduction The deep sea is the largest, continuous ecological unit on earth. However, it is also of all environments the most remote and least well known, both to scientists and to the public. But this remoteness has not protected the deep sea from anthropogenic impacts. Wastes released anywhere on the high seas or into the atmosphere may rapidly sink into the abyss, to be out of sight and out of mind. Invisible and visible wastes penetrate this vast volume of water from a variety of sources and via different pathways. There are few areas of the world’s oceans that have not received any anthropogenic impact, invisibly and by slow-paced transport. Life is ubiquitous in the oceans. Since most species require oxygen, this essential gas must be transported to all locales with the currents; these same currents transport invisible contaminants. These invisible substances have travelled for long distances and periods of time, and may affect organisms many degrees of latitude and longitude away from their origin and their entrance to the oceans. In contrast, human intrusions into the deep sea are already direct sources of environmental disturbances and these intrusions, visible and made with consciousness of their impact, may become more numerous and more serious in coming years. Anthropogenic impacts in the deep sea deserve serious consideration and international legal regulation. Invisible deep sea contaminants may eventually return to the ocean surface, add to the local pollution and disturb species or communities, and eventually man, through direct or synergistic effects. Turn-over times in the oceans, depending on regional * Portions of this Chapter are extracted and slightly modified from: Hjalmar Thiel, “Anthropogenic Impacts on the Deep Sea” in P.A. Tyler (ed.), Ecosystems of the World, Volume 28: Ecosystems of the Deep Oceans (2003), pp. 427–470. The Author is grateful to the editors for selecting the parts on ‘radioactivity contamination in the deep sea’ from his 2003 paper and for adjusting the reference style from that used in oceanography.

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peculiarities, are estimated at a few hundred to one thousand years or so. One has no idea what the pollution status of the ocean surface will be when contaminants resurface after such long time periods. Visible contaminants, intentionally dumped into the deep sea, cannot be retrieved. Any realization that specific substances may not have found their final storage at great ocean depth will inevitably come too late; there would be no possibility to redress the situation. Similarly, impacts occurring in the deep sea as a consequence of mining mineral resources will have long-term effects. A thorough knowledge of the ecology of the deep sea is essential to arrive at the right decisions. However, effective protective measures for the deep sea will be possible only if the impacts are known or their extent can be estimated. These are certainly difficult tasks, but impact prediction must be undertaken a long time in advance. Oceanographers of all disciplines must think ahead. Appropriate deep sea research must be conducted, targeted so as to understand that potential impacts and experimental large-scale approaches are essential. From a conservation point of view, the deep sea is firmly within the ambit of the human community despite its remoteness. Besides ocean scientists, politicians, economists and engineers must take the potential disturbance of the far-distant deep sea into account. They all share responsibility for the deep sea as part of the oceans and the human environment. II.  Non-Visible Contamination A.  Radiation During late 1986, scientists analyzing corer samples from the Norwegian Sea for radiocesium found high levels of radionuclides Cs134 and Cs137. Bioturbation had carried this material about 10mm into the sediment. Further analysis of the material proved that the radionuclides had originated from the Chernobyl accident on April 26, 1986. Strong fallout occurred on May 10th and 11th on Greenland and Svalbard and   H. Erlenkeuser & W. Balzer, “Rapid Appearance of Chernobyl Radiocesium in the Deep Norwegian Sea Sediments,” 11 Oceanologica Acta 101 (1988). Two box corer samples were collected by Erlenkeuser and Balzer on July 4, 1986, one off the continental slope of the Norwegian Sea (depth: 976m) and the other off the adjacent Vøring Plateau (depth: 1426m).



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it may be assumed that radioactive material had already contaminated the surface of the Norwegian Sea. Organic matter may have scavenged the cesium and fast-sinking aggregates may have transported the material to the seafloor. This is an example of deep sea contamination which can be traced back to its origin and it can be confidently assumed that larger areas of the bathyal and the abyssal floors of the Norwegian and the Greenland Seas received radionuclides during the spring of 1986. By 1987, Cs134 derived from the Chernobyl accident had certainly penetrated into the water column to a depth of 1000m near the northern slope of the Barents Sea and to about 300m in the adjacent Nansen Basin. Other fallout events originated from nuclear bomb tests. Nies presented vertical profiles through the water column in the Northeast Atlantic for Cs137, Sr90, Tritium and Pu239/240. Although the highest concentrations were found in surface and subsurface waters, down to depths of more than 1000m, these radionuclides could be traced to abyssal depths. Their vertical distribution depends partly on their reactivity with particulate matter. The concentrations of Cs137 and Pu239/240 in some instances show an increase in the nepheloid layer above the seafloor. However, for his most westerly samples, Nies assumed that the higher values near the bottom, 25°W, originated from northern sub-polar water-masses—that is, from sources other than fallout in the general area. In possible support of this conclusion, Scholten discovered Cs137, derived from atmospheric testing of atomic weapons and from the nuclear reprocessing facility at Sellafield, mixed throughout the water column in the Arctic Ocean. These water masses are those which will be transported into the Atlantic, and later the Indian and Pacific Oceans, together with their contamination load.

   J.C. Scholten, M.M. Rutgers van der Loeff & A. Michel, “Distribution of Th230 and Pa231 in the Water Column in Relation to the Ventilation of the Deep Arctic Basin,” 42 Deep-Sea Res. Part II: Topical Stud. in Oceanography 1519 (1995).   H. Nies, “Artificial Radioactivity in the Northeast Atlantic,” in J.C. Guary, P. Guegueniat & R.J. Pentreath (eds.), Radionuclides: A Tool for Oceanography (1988), pp. 250–259; H. Nies, “Plutonium and Cs137 in the Water Column of the Northeast Atlantic,” in F. Nyffeler & W. Simmons (eds.), Interim Oceanographic Description of the North-East Atlantic Site for the Disposal of Low-Level Radioactive Waste (1989), pp. 77–81 [hereinafter H. Nies].    See Scholten, supra note 2.

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Although not specifically related to the deep sea, Kautsky summarized data previously collected on the distribution of Cs134 and Cs137 in surface waters of the Northeast Atlantic, the North Sea and the Norwegian and Greenland Seas during the period of 1982 through 1985 and in 1979. He traced the transport routes from their sources, the nuclear fuel reprocessing plants of Sellafield on the Irish Sea and La Hague on the English Channel, all the way through the North Sea, the Norwegian Sea, into the Barents Sea and to the Greenland Sea. There, the water may be entrained into the down-welling processes. It is this down-welled water with a high density which leaves the Norwegian and Greenland Seas, passing the Shetland-Greenland ridge and contributing to the North Atlantic Bottom Water. Scientists calculated the transport time for the surface waters from Sellafield to the Greenland Sea to take between seven and ten years. Adding to this the transport time from the Greenland Sea to the North Atlantic deep sea, probably in the same time range, the total time from Sellafield or La Hague to the deep ocean would still range well below the 30.2 years half-life of Cs137. This rough calculation demonstrates that contaminants from terrestrial sources will reach the deep sea, provided that they are persistent and not deposited somewhere in shallow sediments. Nies had discovered Cs137 values in the bottom water layer to be higher than in the water column above. This is the North Atlantic Bottom Water which carries the signature of the water from Sellafield and La Hague. Other contaminants may originate from dumping sites in shallow water in   H. Kautsky, “Determination of Distribution Processes, Transport Routes and Transport Times in the North Sea and the Northern North Atlantic Using Artificial Radionuclides as Tracers,” in J.C. Guarry, P. Guéguéniat and R.J. Pentreath (eds.), Proceedings of the Cherbourg Symposium on Radioactivity and Oceanography (1988), pp. 271–280.    See also P.J. Kershaw and A. Baxter, “The Transfer of Reprocessing Wastes from North-West Europe to the Arctic,” 42 Deep Sea Res. Part II: Topical Stud. in Oceanography 1413 (1995).    B. Rudels & D. Quadfasel, “Convection and Deep-Water Formation in the Arctic Ocean—Greenland Sea System,” 2 J. Marine Systems 435 (1991); P. Schlosser, J.H. Swift, D. Lewis and S.L. Pfirman, “The Role of Large-Scale Arctic Ocean Circulation in the Transport of Contaminants,” 42 Deep Sea Res. Part II: Topical Stud. in Oceanography 1341 (1995)(a).   A. Aarkrog, et al., “Technetium-99 and Cesium-134 as Long Distance Tracers in Arctic Waters,” 24 Estuarine Coastal Shelf Sci. 637 (1987); H. Kautsky, supra note 5; F. Nyffeler, A.A. Cigna, H. Dahlgaard, H.D. Livingston, “Radionuclides in the Atlantic Ocean: A Survey,” in P. Guéguéniat, P. Germain & H. Métivier (eds.), Radionuclides in the Oceans, Inputs and Inventories: Les Éditions de Physique, Les Ulis (1996), pp. 21–28.    See H. Nies, supra note 3.



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Northern Siberia and from rivers discharging into the Arctic Ocean.10 These contaminants may be transported into the deep Arctic basins by the down-slope convection. Indications from radionuclides for deep convection are presented by Cochran and Wedekind for the Norwegian and Greenland Seas, by Papucci, Yiou and Merino for the Mediterranean and by Gulin for the Black Sea.11 Their tracers originated partly from the Chernobyl accident. B.  Flux to Great Depth and Reactive Contaminants Persistent contaminants will enter the deep ocean from various sources, and be transported around in this enormous water body, with the thermohaline circulation system. Radionuclides resulting from nuclear tests occur throughout the earth’s atmosphere and arrive by fallout with rain, snow or airborne particulate matter at the water surface. Their main entry into the deeper parts of the ocean takes place through the formation of bottom water by down-welling of dense water masses, which occurs in rather limited regions around Antarctica and in the Greenland and Labrador Seas.12 The bottom waters of enclosed deep basins like the Mediterranean and the Red Seas are also formed in fairly restricted areas and also carry contaminants into the deeper layers.

10  H. Nies et al., “Transport and Dispersion of Artificial Radioactivity in the Arctic Ocean: Model Studies and Observations,” 32 Radioprotection Colloquium C2: 407 (1997); I.L. Khodakovsky, “Radionuclide Sources of Arctic Contamination,” 8 Arctic Res. of the U.S. 262 (1994). 11   J.K. Cochran et al., “Natural and Anthropogenic Radionuclide Distribution in the Nansen Basin, Arctic Ocean: Scavenging Rates and Circulation Timescales,” 42 Deep Sea Res. Part II: Topical Stud. in Oceanography 1495 (1995); Ch. Wedekind et al., “The Distribution of Artificial Radionuclides in the Waters of the Norwegian–Greenland Sea in 1985,” 35 J. Envtl. Radioactivity 173 (1997); C. Papucci, R. Delfanti & L. Torricelli, “Anthropogenic Radionulides as Tracers of Recent Changes in the Eastern Mediterranean Circulation: The Cs137 Distribution,” in E. Th. Balopoulos, G. Th. Chronis, E. Lipiatou & I. Oliounine (eds.), Oceanography of the Eastern Mediterranean and Black Sea. Similarities and Differences of Two Interconnected Basins, Research in Enclosed Seas Series 8, European Commission, Directorate-General for Research, 123, abstract (2000); F. Yiou, G.M. Raisbeck, Z.Q. Zhou & L.R. Kilius. “I129 in the Mediterranean Sea,” 35 Radioprotection Colloquium, C2: 105 (1997); J. Merino et al., “Artificial Radionuclides in a High Resolution Water Column Profile From the Catalan Sea (the Northwestern Mediterranean),” 32 Radioprotection Colloquium 85 (1997); S.B. Gulin et al., “Chronological Study of Cs137 Input to the Black Sea Deep and Shelf Sediments,” 32 Radioprotection Colloquium 257 (1997). 12   B. Rudels & D. Quadfasel, “Convection and Deep-Water Formation in the Arctic Ocean–Greenland Sea System,” 2 J. Marine Systems 435 (1991); Schlosser, supra note 7.

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Lipiatou13 calculated mass budgets and dynamics for polycyclic aromatic hydrocarbons which enter the Mediterranean from atmospheric fallout and riverine input. Some of this material and other contaminants settle to the seafloor within the Mediterranean, but some find their way into the Atlantic with the Mediterranean outflow over the sill 300m deep in the Strait of Gibraltar, to form a well-marked water mass slowly spreading throughout the North-east Atlantic at a depth between 600m and 1000m. A more direct and widespread route into the deep sea, particularly for those substances which enter the metabolism of living organisms or are scavenged by particulate matter, is through the sinking of particles, which may occur at all latitudes. This route into the deep ocean by the sinking of particulate matter has been recognized for more than hundred years, but it is only within the last twenty years or so that it has been realized that mass particulate transport to great depth can occur in a matter of weeks.14 Although this transport mechanism probably exists throughout the world oceans, its extent varies markedly in space and time, being largely dependent upon the level of primary production and season. For example, aggregate formation and rapid sinking of organic matter, with any associated contaminants, occurs in the North Atlantic predominantly after the spring phytoplankton bloom and this phytodetritus arrives at the seafloor after about six weeks. In tropical regions, where both the seasonal influence and the standing stocks are lower, aggregation and sinking are much less important and it may be expected that contaminant transport to great depth by this means is smaller and less episodic.

13  E. Lipiatou et al., “Mass Budget and Dynamics of Polycyclic Aromatic Hydrocarbons in the Mediterranean Sea,” 44 Deep Sea Res. Part II: Topical Stud. in Oceanography 881 (1997). 14  D.S.M. Billett, R.S. Lampitt, A.L. Rice & R.F.C. Mantoura, “Seasonal Sedimentation of Phytoplankton to the Deep-sea Benthos,” 302 Nature 520 (1983); A.L. Rice et al., “Seasonal Deposition of Phytodetritus to the Deep-sea Floor,” 88 Proc. Royal Soc’y Edinburgh, 265 (1986); H. Thiel et al., “Phytodetritus on the Deep-sea Floor in a Central Oceanic Region of the North-east Atlantic” 6 Biological Oceanography 203 (1988); C.R. Smith et al., “Phytodetritus at the Abyssal Seafloor Across 10° of Latitude in the Central Equatorial Pacific” 43 Deep Sea Res. Part II: Topical Stud. in Oceanography, 1309 (1996); P.A.W.J. De Wilde et al., “Late Summer Mass Deposition of Gelatinous Phytodetritus Along the Slope of the N.W. European Continental Margin” 42 Progress in Oceanography 65 (1998).



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Speculation on this rather direct route for deep sea contamination finds support in the demonstration of various substances accumulating on particles and concentrating in deep sea organisms. Duce, Mason and Flegal / Patterson15 described vertical profiles in the water column for the concentrations of various metals; heavy metals were found in deep sea shrimps and fish, for instance by Kobayashi, Thiel, Karbe, Steimle, Mason and Fitzgerald and Monteiro.16 However, not all high concentration values are due to anthropogenic inputs to the ocean; they may be due to age and food-chain relationships.17 Data from the Red Sea18 clearly indicate increasing concentrations in organisms above the Atlantis-II-Deep, a region subject to hydrothermal influence. Various organic contaminants in deep sea fish were reported by Krämer and Steimle.19 Further transport mechanisms exist in the sedimentary environment. Reactive substances of riverine or atmospheric origin may be adsorbed to particulate matter and transported far into the open ocean, for 15  R.A. Duce et al., “The Atmospheric Input of Trace Species to the World Ocean” 5 Global Biogeochemical Cycles 193 (1991); R.P. Mason, W.F. Fitzgerald & F.M.M. Morel “The Biogeochemical Cycling of Elementary Mercury: Anthropogenic Influences,” 58 Geochimica et Cosmochimica Acta 3191 (1994); A.R. Flegal & C.C. Patterson, “Vertical Concentration Profiles in Lead in the Central Pacific at 15° N and 20° S,” 64 Earth & Planetary Sci. Letters 19 (1983). 16  R. Kobayashi et al., “Heavy Metal Contents in Deep-sea Fishes,” 45 Bull. Japanese Soc’y of Sci. Fisheries 493 (1979); H. Thiel, H. Weikert & L. Karbe, “Risk Assessment for Mining Metalliferous Muds in the Deep Red Sea,” 15 Ambio 34 (1986); L. Karbe, “Hot Brines and the Deep Sea Environment,” in A.J. Edwards & S.M. Head (eds.), Red Sea, Key Environments Series (1987), p. 70; F.W. Steimle, V.S. Zdanowicz & D.F. Gadbois, “Metals and Organic Contaminants in Northwest Atlantic Deep-Sea Tilefish Tissues,” 21 Marine Pollution Bull. 530 (1990); R.P. Mason & W.F. Fitzgerald, “The Distribution and Biogeochemical Cycling of Mercury in the Equatorial Pacific Oean,” 40 Deep Sea Res. Part I: Oceanographic Res. Papers 1897 (1993); L.R. Monteiro, V. Costa, R.W. Furness & R.S. Santos, “Mercury Concentrations in Prey Fish Indicate Enhanced Bioaccumulation in Mesopelagic Environments,” 141 Marine Ecology Progress Series 21 (1996). 17  H. Windom, D.L. Stein, R. Sheldon & R. Smith, “Comparison of Trace Metal Concentrations in Muscle Tissue of a Benthopelagic Fish (Coryphenoides armatus) from the Atlantic and Pacific Oceans,” 34 Deep-Sea Res. 213 (1987); P. Vas, J.D.M. Gordon, P.R. Fielden & J. Overnell, “The Trace Metal Ecology of Ichthyofauna in the Rockall Trough, Northeastern Atlantic,” 26 Marine Pollution Bull. 607 (1993); M.F. Cronin et al., “Trace Metal Concentrations in Deep Sea Fish From the North Atlantic,” 45 Marine Envtl. Res. 225 (1998). 18   See Thiel, supra note 16, and Karbe, supra note 16. 19  W. Krämer et al., “Global Baseline Pollution Studies IX: C6–C14 Organochlorine Compounds in Surface-Water and Deep-Sea Fish from the Eastern North Atlantic,” 13 Chemosphere 1255 (1984); Steimle, supra note 16.

26

hjalmar thiel

instance by the large visible plumes shed into the Atlantic Ocean by the Amazon and Congo rivers. Sediment may accumulate in shallow waters on the outer shelf, the shelf edge or the upper continental slope. Sediment masses, predominantly below the shelf edge, may become unstable and mass flows may be triggered, transporting sediment and contaminants in slumps, slides or turbidity currents to great depths. Although these events are rare in ecological terms, the amounts transferred into the deep ocean may be very large.20 Quadfasel et al.21 reported the existence of turbidity currents in the Sulu Sea at intervals of several decades following long-term sediment accumulation. Various other means of contaminant transport occur, although these may be rather weak and geographically limited. Contaminants scavenged during the freezing process together with sedimentary materials, or those precipitated on ice floes in polar seas, may be released from the ice cover into the ocean by the melting process, together with particulate matter, after drifting long distances over several years. Other contaminants are drained out of the ice much faster, together with salt brines concentrated during freezing.22 Absorbed to particulate matter, they settle to the seafloor. Those in solution are transported with the currents and downwards-directed convection with cold water transfers them into deep water. Quadfasel et al. and Fohrmann23 described and modeled the occurrence of sediment-laden or turbidity plumes, originating from melting ice and the release of the particulate load from ice floes, in the Arctic. Both types of plume probably drifted to the Svalbard and Bear Island regions from the far northern regions of Siberia, with added components from fallout of contaminants with snow. Because of its higher density this particle-laden water mass sinks to great depth. The particulate matter is lost during this passage through the basin, predominantly along the continental slope of the northern Norwegian Sea and the Barents Sea, where further cold water masses from the shelf penetrate

20  E. Seibold and W.H. Berger, The Sea Floor: An Introduction to Marine Geology (1993), p. 356. 21  D. Quadfasel, H. Kudrass & A. Frische. Deep Water Renewal by Turbidity Currents in the Sulu Sea. 348 Nature 320 (1990). 22  Arctic Monitoring and Assessment Programme (1998). 23  D. Quadfasel, B. Rudels & K. Kurz, “Outflow of Dense Water from a Svalbard Fjord into the Fram Strait,” 35 Deep Sea Res. 1143 (1988); H. Fohrmann, “Sedimente in Bodengebundenen Dichteströmungen: Numerische Fallstudien,” Dissertation Universität Hamburg, p. 106.



deep sea impacts

27

into the deep sea.24 Adsorbed reactive contaminants are distributed at the sediment surface below the paths of the currents. Another example of down-slope transport is known from upwelling areas, for instance off northwestern Africa. Primary organic matter (determined as chlorophyll a and its degradation products) and benthic organisms have their maximum down-slope concentration at depths between 800m and 1000m—an unexpected increase with increasing depth.25 Support for the deduction that food energy is transported may be derived from the existence of turbid bottom water layers26 and from indications of down-slope transport of sediment.27 These phenomena may be partially explained by a down-slope component of the under current flowing to the north along the upper continental slope,28 and internal waves may regularly interact with the upper slope, resulting in the re-suspension of particulate matter.29 Down-slope transport of water and particles was also observed by Thomsen and van Weering30 along a transect south of the Porcupine Seabight in the Northeast Atlantic. This short account of existing and potential contaminants in and pathways into the deep sea is far from comprehensive.31 There are more results available from other ocean regions, as well as a more detailed descriptions of the processes involved. However, this analysis shows that a variety of transfer mechanisms exist by which contaminants not visible to the human eye reach the deep sea. Their concentrations have

24  M.M. Rutgers van der Loeff et al., “Ra228 as a Tracer For Shelf Water in the Arctic Ocean,” 42 Deep Sea Res. Part II: Topical Stud. in Oceanography 1533 (1995). 25  H. Thiel, “Zoobenthos of the CINECA Area and Other Upwelling Regions,” 180 Rapport et Proces-Verbaux des Réunions du Conseil International pour l’Exporation de la Mer 323 (1982). 26  G. Kullenberg, “Light Scattering Observations in the Northwest African Upwelling Region,” 25 Deep Sea Res. 525 (1978). 27  A. Bein & D. Fütterer, “Texture and Composition of Continental Shelf to Rise Sediments off the Northwestern Coast of Africa: An Indication of Downslope Transportation,” Reihe C, 27 Meteor Forschungsergeb. 46 (1977). 28  E. Mittelstaedt, “Large Scale Circulation Along the Coast of Northwest Africa,” 180 Rapport et Proces-Verbaux des Réunions du Conseil International pour l’Exporation de la Mer 50 (1982). 29  E. Fahrbach & J. Meincke “High-Frequency Velocity Fluctuations on a Steep Continental Slope” 180 Rapport et Proces-Verbaux des Réunions du Conseil International pour l’Exporation de la Mer 76 (1982). 30   L. Thomsen & Tj. C.E. van Weering, “Spatial and Temporal Variability of Particulate Matter in the Benthic Boundary Layer at the North East Atlantic Continental Margin (Goban Spur),” 42 Progress in Oceanography 61 (1998). 31   See also Oslo & Paris Commission (OSPARCOM) (for the Protection of the NorthEast Atlantic marine environment), (2000).

28

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so far not reached such an unacceptable level32 that they would be classified as pollutants, but from the data available it seems that no region of the deep sea has escaped anthropogenic impact. No results are available from deep sea trenches, but since vertical sinking is independent of depth and most trenches are situated close to the continents and to island arcs and because some water renewal occurs down to maximum depths, contaminants are ubiquitous throughout the oceans. III.  Visible and Conscious Contamination In contrast to the non-visible substances in the sea, visible contamination ranges from items of small litter thrown overboard by seamen and tourists to regular ocean disposal using the deep sea as a repository. This category includes deep sea mining and fishing. Primarily, ore is extracted from the deep seafloor, but much of the material mined is discharged back into the ocean. Both disposal of wastes and mining of mineral resources must be economically feasible and therefore can be organized only on the basis of large-scale intrusions including the mobilization of large amounts of material. Fishing, if it is to be profitable, may not be sustainable at great depth. All these uses of the deep sea may have long-lasting and far-reaching effects. A.  The Regular, Thoughtless and Secret Dumping of Wastes at Sea Ever since man first crossed the oceans, the sea has been the recipient of all wastes produced on canoes, rafts, sailing ships, steamers and ocean liners. A trawling of the bathyal or the abyssal seafloor will recover beer and medicine bottles, cans, dishes, furniture parts, plastic sheets, paint brushes, bricks and many other remnants of civilization.33 The most abundant waste material, however, is clinker (residue remaining after the combustion of coal) together with some unburnt hard coal.34 During the steamship era thousands of tons of coal were burnt daily, and

32   K.H. Ballschmiter, O. Froescheis, W.M. Jarman & G. Caillet, “Contamination of the Deep-Sea,” 34 Marine Pollution Bull. 288 (1997). 33   B.S. Galil, A. Golik & M. Türkay, “Litter at the Bottom of the Sea: A Sea Bed Survey in the Eastern Mediterranean,” 30 Marine Pollution Bull. 22 (1995). 34  H. Thiel, “Meiofauna und Struktur der Lebensgemeinschaft des Iberischen Tiefseebeckens,” Reihe D, 12 Meteor Forschungsergeb. 36 (1972).



deep sea impacts

29

all the ashes and clinker were shovelled over the rail. On the deep sea floor, the shipping routes are clearly marked by this material, as today there are oil residues and drifting tar lumps on the ocean surface35 which may eventually sink to the seafloor. Much of the material disposed of on the high seas will eventually sink down to great depths. Wastes with hard surfaces arriving at the bottom of the deep ocean may disappear in the soft ooze, but may also extend into the near-bottom water and constitute a hard substrate for colonization by sedentary species. B.  Radioactive Wastes Nuclear waste products were deposited in the deep sea of the Northeast Atlantic Ocean between 1949 and 1982 (see Figure 1) by eight European countries: Belgium, France, Germany, Italy, The Netherlands, Sweden, Switzerland and the United Kingdom.36 In 1967 the disposal occurred in the northern Iberian Abyssal Plain at a depth of 5300m. The level bottom of this plain seemed at that time to be suitable under the prevailing conditions of currents, disturbance and mixing. However, it was argued that the site was too close to the Iberian peninsula and for subsequent disposals other sites were chosen to the northwest in the abyssal hill regions at depths of 4500m to 5300m. Iron drums were used as waste containers. The low-level waste was homogeneously mixed or packed as larger solid pieces within a matrix of bitumen or concrete. In some cases these drums were placed in a second metal or concrete container. Some of them were fitted with a pressure equalization device. The drums were dumped into the ocean surface, singly or several at a time and sank to the seafloor. Radioactivity was calculated to be low, even if the drums broke open upon their arrival at the seafloor. Except for some seal failure, it was thought that drums would disintegrate as a result of corrosion and their lifetimes were estimated to range from fifteen to one hundred and fifty years, though

35  R.H. Day & D.G. Shaw, “Patterns in the Abundance of Pelagic Plastic and Tar in the North Pacific Ocean, 1976–1985,” 18 Marine Pollution Bull. 311 (1987); A. Golik, K. Weber, I. Salihoglu, A. Yilmaz & L. Loizides, “Pelagic Tar in the Mediterranean Sea,” 19 Marine Pollution Bull. 567 (1988). 36  ENEA (European Nuclear Energy Agency) / NEA (Nuclear Energy Agency) 1967 to 1991; IAEA (International Atomic Energy Agency) since 1991. General overviews have been published by the Nuclear Energy Agency (1982–1995).

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60°

1951, 1953

50°

1950-1963

1969 1949, 1965-66, 1968, 1970

1962

1971-1982

1963, 1964

1967

40° Azores

Madeira 1957, 1958,

1955

1961

20°

10°

0°

Source: Nuclear Energy Agency, 1985

Figure 1. Dumpsites Used by European Nations, Northeast Atlantic, 1950 to 1982

48°30’ 49°50’ 49°50’ 55°26’ 49°50’ 55°08’ 49°50’ 49°50’ 49°50’ 32°37’ 49°50’ 49°50’ 32°42’ 32°42’ 49°50’ 49°50’ 49°50’ 49°50’ 32°38’

1949 1950 1951

13°00’ 02°18’ 02°18’ 11°20’ 02°18’ 12°10’ 02°18’ 02°18’ 02°18’ 14°05’ 02°18’ 02°18’ 19°30’ 19°30’ 02°18’ 02°18’ 02°18’ 02°18’ 20°05’

Long°W 9 350 319 33 534 57 758 1145 1164 1453 1038 1537 4404 2715 1011 1197 2551 1967 4361

Tones   0.00   0.07   0.04   0.04   0.07   0.07   0.37   0.85   1.30   0.44   1.63   4.03 35.34 25.72   2.15   0.15   2.74   0.74 20.38

α

  0.04   0.74   0.67   0.19   1.07   0.07   1.44   2.04   1.63   1.22   1.22   5.96   3.26 40.15   2.11   2.74   8.07 11.4 60.31

β,γ

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

Tritium No No No No No No No No No No No No No No No No No No No

NEA38 UK UK UK UK UK UK UK UK UK UK UK UK UK UK UK UK B,UK UK UK

Countries39

deep sea impacts

38

37

  Quantities dumped in 1012 Becquerels per year.  Under NEA supervision. 39  Countries which supplied waste: Belgium (B); Switzerland (CH); France (F); Germany (D); Italy (I); Netherlands (NL); Sweden (S); United Kingdom (UK).

1959 1960 1961

1958

1956 1957

1954 1955

1952 1953

Lat°N

Year

Table 1. Annual Quantities of Low-Level Radioactive Waste Dumped in the Northeast Atlantic Ocean, by Activity Type & Approximate Locations37 3839

31

46°27’ 49°50’ 49°50’ 45°27’ 45°27’ 48°15’ 48°15’ 42°50’ 48°20’ 49°05’ 48°20’ 46°15’ 46°15’ 46°15’ 46°15’ 46°15’ 46°15’ 46°00’ 46°00’ 46°00’ 46°00’ 46°00’ 46°00’

1962

06°10’ 02°18’ 02°18’ 06°16’ 06°36’ 13°15’ 13°15’ 14°30’ 13°16’ 17°05’ 13°16’ 17°25’ 17°25’ 17°25’ 17°25’ 17°25’ 17°25’ 16°45’ 16°45’ 16°45’ 16°45’ 16°45’ 16°45’

Long°W

Source: Nuclear Energy Agency, 1985

Total

1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982

1963

Lat°N

Year

Table 1 (cont.)

142,284

253 1444 1543 5809 4392 1760 1044 10895 3164 9178 1674 3968 4131 4350 2265 4454 6772 5605 8046 5416 8391 9434 11693

Tones

680.21

  0.63   0.19   0.11 13.65 16.43   4.22   2.89   9.36 27.06 17.95   8.62 23.20 25.20 27.38 15.39 28.38 32.49 35.45 40.74 52.32 68.64 80.55 52.74

α

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1098.53 766.01 1179.78 1354.68 1562.88 3631.00 2751.75 2865.61

Tritium

41,638.73 15,210.26

6.03 2.81 1.63 263.85 558.33 508.90 101.45 282.53 2768.97 816.44 748.29 412.48 800.16 468.42 3713.17 2122.84 1980.17 2828.69 2946.24 3077.14 6705.40 5681.94 4698.56

β,γ

No No No No No No No Yes No Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

NEA38 UK B,UK UK B,UK UK UK UK B,D,F,NL,UK UK B,FI,NL,S,CH,UK UK B,NL,CH,UK B,NL,CH,UK B,NL,UK NL,CH,UK B,NL,CH,UK B,NL,CH,UK NL,CH,UK B,NL,CH,UK B,NL,CH,UK B,NL,CH,UK B,NL B,NL,CH,UK

Countries39

32 hjalmar thiel



deep sea impacts

33

concrete caps may last only three years. Waste blocks embedded in concrete or bitumen were assumed to last for one thousand years.40 Between 1949 and 1970, a total of 50,201 metric tons41 were dumped in various deep sea regions of the Northeast Atlantic (see Table 1 and Figure 1). Between 1971 and 1982, gross mass ranged from 2265 tons to 11,693 tons per year, in total 64,525 tons and the number of drums amounted to 122,732 (see Table 1). They were distributed over an area of about 5000 square kilometers in the outer Bay of Biscay, on average 24.5 per square kilometer, although clustering of the barrels can be assumed. No dumping occurred after 1982. The United States disposed of 34,282 drums into the western Atlantic between 1949 and 1967, most of them in deep water. Between 1946 and 1970, another 52,261 containers were dumped in various places of the Pacific Ocean, mostly into the deep sea of the northeastern part.42 The Pacific Ocean received a further 3185 drums between 1954 and 1976 from the countries Japan, South Korea and New Zealand, all close to the countries of origin.43 Yablokov44 reported on the dumping of nuclear wastes by the former Soviet Union, though only a few items were deposited in the deep sea. An overview of nuclear-waste dumping is presented in Figure 2, including the total radioactivity of low-level wastes in each general ocean region. Based on preliminary regulations, the London Convention45 was adopted in 1972 and entered into force in 1975. Whereas dumping of low- and medium-level radioactive wastes was permitted under certain conditions, a voluntary moratorium on the dumping of low-level wastes at sea was introduced by the Contracting Parties in 1983. Dumping was 40  F.G.T. Holliday, HMSO Chairman, Report of the Independent Review of Disposal of Radioactive Waste in the Northeast Atlantic (1984), p. 60; NEA/OECD, Review of the Continued Suitability of the Dumping Site for Radioactive Waste in the North-East Atlantic (1985), OECD, p. 448. 41  Equivalent probably to 100,000 drums. 42  R.G. Johnson, M. Kahn & C. Robbins, EPA 530/1−84−017, United States Practices and Policies for Ocean Disposal of Radioactive Wastes, 1946–1984 (1984); IAEA, TEC DOC-588, Inventory of Radioactive Material Entering the Marine Environment: Sea Disposal of Radioactive Waste (1991), p. 54. 43  IAEA, supra note 42. 44  Alexi V. Yablokov, et al., “Facts and Problems Connected with the Disposal of Radioactive Waste in the Seas Adjacent to the territory of the Russian Federation” (Administration of the President of the Russian Federation, Moscow, February) (1993). 45  Convention on the Prevention of Maritime Pollution by Dumping Wastes and Other Matters, Dec. 29, 1972, 1046 U.N.T.S. 120.

34

hjalmar thiel

banned through amendments adopted in 1993, taking effect in February 1995. These amendments also state that the Contracting Parties shall review the dumping of low-level radioactive wastes after twenty-five years, on the basis of scientific studies. Various investigations have been carried out in the vicinity of the Nuclear Energy Agency (NEA) dumping areas. No specific activity was found which could be traced back to the leaking of the drums. Nies46 investigated the concentrations of the radionuclides Cs137, Sr90, Tritium and Pu239/240 in the water column and concluded that their origin was related to fallout. Rutgers van der Loeff and Lavaleye47 studied the sediments and organisms. While Feldt48 analyzed plankton and benthos samples, they initially thought that some fauna close to a dump site might have been contaminated from leaking drums, but ultimately concluded in 1989 that Cs137 in Actiniaria resulted from various biogeochemical processes. The NEA49 did not report any scientific evidence for pollution and expressed the opinion that the dump site could continue to be used, with dumping rates already considered suitable earlier. Together with dumping activities, the loss of nuclear-powered submarines must be considered. The USS Thresher sank in 1963 at a depth of 2590m on the slope off Nova Scotia,50 and the USS Scorpion was lost in 1968 southwest of the Azores at a depth of 3050m, along with two torpedoes carrying nuclear warheads containing plutonium and uranium.51 Radiological monitoring was conducted during several cruises around both wrecks following their loss, but no significant effect on the environment was detected.

  See H. Nies, supra note 3.  M.M. Rutgers van der Loeff & M.S.S. Lavaleye, Sediments, Fauna and the Dispersal of Radionuclides at the N.E. Atlantic Dumpsite for Low-Level Radioactive Waste (Netherlands Institute for Sea Research, 1986), p. 134. 48  W. Feldt, G. Kanisch, M. Kanisch & M. Vobach, “Radioecological Studies of Sites in the Northeast Atlantic Used for Dumping of Low-Level Radioactive Wastes—Results of the Research Cruises of FRV ‘Walther Herwig’ 1980–1984,” 35 Arch. Fischereiwiss. 91 (1985); W. Feldt, G. Kanisch & M. Vobach, “Deep-Sea Biota of the Northeast Atlantic and Their Radioactivity,” in NEA/OECD 3 Interim Oceanographic Description of the Northeast Atlantic Site for the Disposal of Low-Level Radioactive Waste (1989), pp. 178–204. 49  NEA/OECD, Co-Ordinated Research and Environmental Surveillance Programme Related to Sea Disposal of Radioactive Waste—Activity Report 1986–1990 (1990) p. 152. 50  Sheldon & D. Michne, Deep Sea Radiological Environmental Monitoring Conducted at the Site of the Nuclear Power Submarines “Thresher” (a) and “Scorpion” (b) Sinking, (1993) (a and b), Kapl. Inc., New York, p. 96 (a) and p. 83 (b). 51   Ibid. 46 47

North-West Atlantic 11 Sites 2.94 PBq

West Pacific 5 Sites 0.02 PBq

Figure 2.  Quantities of Low-Level Radioactive Wastes Disposed of in the Atlantic and Pacific Oceans (Given in PBq, Peta Becquerel = 1015 Bq)

North-East Atlantic 15 Sites 42.31 PBq

deep sea impacts

(Redrawn from International Atomic Energy Agency, 1991)

North-East Pacific 16 Sites 0.55 PBq

35

36

hjalmar thiel

The same is true for the U.S.S.R. submarine Komsomolets, which sank with two nuclear warheads on the Barents Sea continental slope to the southwest of Bear Island in 1989 at a depth of 1685m.52 Corrosion of cooling systems released some Co60 and Ni63 in low concentrations. The total amount of radioactivity was small and Vinogradov et al. considered that only very limited effects on the environment might result in the future.53 Summarizing these data, it becomes evident that in the general dumping areas no increased levels of nuclear radiation have been detected, indicating no or very low leakage from the drums.54 However, studies were not conducted in the immediate proximity of the drums and their surroundings, except the photographic survey of Sibuet and Coic, who took images from an autonomous underwater vehicle gliding a few meters above the seafloor.55 No study has been undertaken to investigate the impact on the seabed and on the community close to or on the drums. Such impacts may be expected to occur in concentric rings around the source, probably somewhat distorted by the direction of prevailing currents. Some of the drums may be leaking,56 and it would be of interest to learn about their effects on sediment and fauna and whether specific types of drums show a higher rate of leakage than others. Inspecting the various NEA dump sites, one would find drums which had been resting on the seafloor for twenty-one to thirty-six years; in the Northeast Atlantic the first drums were disposed of more than fifty years ago. These long-term introductions of hard substrata and obstacles for currents should be viewed as if they were “experimental” environmental changes and their influence on the physical-biological

52  M.E. Vinogradov, A.M. Sagalevich & S.V. Khetagurov (eds.), Okeanologicheskie Issledovaniya I Podvodno-Tekhnichekie Raboty na Meste Gibeli Atomnoi Podvodnoi lodki “Komsomolets” [Oceanographic Research and Technical Operations on the Site of Nuclear Submarine ‘Komsomolets’ Wreck] (1996), p. 360. 53   Ibid 54  R. Vartanov & C.D. Hollister, Nuclear Legacy of the Cold War: Russian Policy and Ocean Disposal 21 Marine Pol’y 1 (1997). 55  M. Sibuet, D.P. Calmet & G.A. Auffret, “Reconnaissance Photographique de Conteneurs en Place dans la Zone d’Immersion des D’echets Faiblement Radioactifs de l’Atlantique Nord-Est” Série C, 301 Comptes Rendus Académie des Sciences Paris 497 (1985); M. Sibuet & D. Coic, “Photographic Prospection of the NEA Dumpsite in the Northeast Atlantic: Quantitative Distribution of Epibenthic Megafauna,” in 3 Interim Oceanographic Description of the North-East Atlantic Site for the Disposal of Low-Level Radioactive Waste, OECD (1989) p. 167. 56   Ibid.



deep sea impacts

37

system should be studied together with the distribution of anthropogenic radionuclides. Essential for such investigations are close-up observations and narrowly spaced sampling in the vicinity of the sources and this demands the use of manned submersibles and/or remotely operated vehicles (ROVs). It is important to obtain visual impressions of organism growth on the sunken submersibles and on the drums and to observe corrosion and its influence on the sediments and animals. IV.  Conclusion Drums with radioactive wastes, lost nuclear submarines, ammunition dumping and shipwrecks in the deep sea together offer an arsenal of “experimental” facilities which should be used to answer basic questions on the ecology of the deep sea and to respond to questions on applied problems and societal needs. All dumping activities included low-level wastes. The disposal of high-level wastes was discussed by various committees but abandoned; however, the option of burial below the seafloor may be reconsidered one day and would need further research for environmental evaluation.57

57  C.D. Hollister & S. Nadis, “Burial of Radioactive Waste Under the Seabed,” Sci. Amer. 40 (1998).

CHAPTER THREE

Risk and Vulnerability at Contaminated Sites in the Pacific and Australian Proving Grounds from a ‘Long-Term Stewardship’ Perspective: What Have We Learned? Thomas M. Leschine* I.  Introduction When contaminated lands are not cleaned up to levels that support unrestricted use—as they have not been at the majority of sites used to produce or test nuclear weapons—long-term stewardship is required to protect humans and the environment from harm. In some cases protection is required for many thousands of years, though at some testing grounds in the Pacific the period of highest concern may be on the order of one hundred to one hundred fifty years. Following partial cleanup, some sites—including some former test sites in the Pacific and in South Australia—have been returned to conditions supportive of restricted human use in surprisingly short periods of time. How uncertainties, risks, and vulnerabilities are conceived, analyzed and responded to by authorities has major implications for who can live in the restored lands and under what conditions however. Who gets to participate in deciding has major correlative importance, illustrated by the different paths and outcomes of decision making with respect to Pacific Islands test sites under U.S. administration on the one hand and Australian test sites under British and Australian administration on the other. These outcomes both inform and challenge the notion of long-term stewardship of contaminated lands that has evolved in a

*  This paper is derived in part from T.M. Leschine, “Introduction: Long-Term Management of Contaminated Sites,” pp. 1–10, and A.B. Jennings, A.M. Seward & T.M. Leschine, “Living in a Nuclear Landscape: Rehabilitation and Resettlement of Proving Grounds in Australia and the South Pacific,” pp. 165–192, both in T.M. Leschine (ed.), Long-Term Management of Contaminated Sites, Volume 13 of Research in Social Problems and Public Policy, (Elsevier JAI: Oxford 2007) with permission of Elsevier Ltd.

40

thomas m. leschine

different but closely related context—the U.S. Department of Energy’s custodianship of more than one hundred sites on the Continental U.S. that contributed to the manufacture of the nuclear weapons that were tested in the Pacific Proving Grounds during the Cold War. Although the decision pathways have differed in the cases of the Maralinga Lands of South Australia and the Marshall Islands sites that are the focus of this paper, the current situations at both locales raise similar questions of whether and how long-held cultural practices of indigenous peoples can co-exist with long-lasting environmental contamination of modern origin. II.  After the Tests Long-term stewardship refers to the system of controls—including maintenance, monitoring, institutions and information as well as physical controls—necessary to ensure protection given that cleanup has not been sufficient to permit unrestricted use. Effective long-term stewardship depends on the identification and active management of both risks and vulnerabilities. Although the two concepts are related, they are not the same. Both are framed by uncertainties, but of different orders and sources. Risk is the probability of harm to humans or the environment from failures of systems put in place to isolate residual contamination from the biological environment, while vulnerability is susceptibility to harm that derives from socio-economic factors, cultural practices or demographic patterns of human occupation in relation to contaminated resources or lands. While both have proved difficult to assess and manage, the scientific-technical orientation of the managing agencies has led to an emphasis on the risk side of the equation with less adequate mechanisms in place to identify and address questions of vulnerability that have their roots in local socio-economic conditions and cultural practices. Between 1946 and 1962 the United States detonated 109 nuclear weapons in an area of the Pacific Ocean called the Pacific Proving Grounds, mainly at the Enewetak and Bikini Atolls in the Republic of the Marshall Islands (RMI). The British nuclear testing program spanned eleven years (1952 to 1963) and involved detonation of twenty-one weapons in addition to a number of small-scale experiments (the Minor Trials) in South Australia. Cleanup and resettlement of the contaminated lands in these two areas raised similar questions



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of cultural identity and communication and the importance of cultural as well as technical understanding in establishing conditions for safe resettlement. A.  Bikini Atoll Twenty-three nuclear weapons tests were conducted at Bikini Atoll, starting with Operation Crossroads in 1946 and ending with the Juniper test in 1958. The yield at Bikini exceeded seventy-five thousand kilotons and comprised 72% of the Pacific Testing Program’s total yield. Bikini was declared safe in 1968 after a preliminary cleanup and was partially resettled five years later. Human health monitoring soon revealed excessive radiation exposure, and the islanders were removed in 1978. Presently, Bikini is inhabited by a handful of workers and dive-tourism staff but has not been officially resettled and cleanup plans have not been finalized. The failure of the initial resettlement of Bikini provides a lesson in the necessity of coming to terms with vulnerabilities that can lead to exposure to harm as well as risks that stem from the inherent fallibility of designed protective systems. Both risk and vulnerability assessment can be said to have failed at Bikini. Pre-settlement estimates of the availability of the radioisotope cesium to humans were based on experience with chemical behavior in continental environments, and did not take into account the presence of calcium-carbonate rich but potassium-poor soils on Pacific islands. Cesium readily substituted for potassium in plant uptake under the conditions that prevailed at Bikini, especially for coconut palms, and coconut milk proved to be the principal vector that transferred radioactive cesium and strontium to humans. Officials had been concerned at the outset about the consumption of coconuts but failed to communicate effectively the risks involved to the resettled population. Nor did they have the cultural understanding to know the importance of coconut consumption to the Bikinians, a failure to recognize inherent vulnerabilities. U.S. officials had promised a temporary evacuation and a quick return of land. However, the scope of testing changed and the ‘temporary’ evacuation of the Bikinians turned into a ‘relocation’, persisting now for nearly sixty years. Much has changed over the intervening time. Three islands of the atoll were vaporized in one test, nearly one hundred ships were sunk in the lagoon, all the vegetation was destroyed and the topsoil was contaminated with the byproducts of fission—cesium,

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uranium, strontium and plutonium. In that time, the fabric of Bikini society has been rearranged and a traditional way of life is all but lost. The U.S. presumably remains bound by obligations spelled out in the 1985 Compact of Free Association, which calls on the U.S. to “fulfill its responsibility for restoring Bikini Atoll to habitability.” The U.S. and Marshallese appear to have reached a stalemate about how to proceed, and relations are strained over the concept of ‘habitability.’ The cost and logistics of the cleanup proposed by the Marshallese, as well as requests for ongoing financial and other support, have not been fully accepted by the U.S.; the scope of the cleanup and extent of protection and remuneration proposed by the U.S. is considered inadequate by the Marshallese. Medical monitoring was required of all returnees as a condition of Bikini’s resettlement in the mid-1970s. Its effectiveness in detecting rapidly increasing body burdens of both cesium and strontium in the resettled population, that led to the population’s removal once more in 1978, can be said in hindsight to constitute an important “lesson learned” for long-term stewardship: Layering and redundancy in the administrative systems put in place to protect humans and the environment from harm are important factors determining the robustness of institutional controls (to the U.S. EPA, “non-engineered instruments such as administrative and/or legal controls that minimize the potential for human exposure to contamination by limiting land or resource use”). Layering refers to having in place more than one element in a system of protectiveness to accomplish the same purpose (e.g., medical monitoring as well as efforts at risk communication) and redundancy refers to having more than one institution responsible for the same task (e.g., medical authorities as well as various agencies of the U.S. Government under the administrative arrangements of the Trust Territory of the Pacific). B.  The Maralinga Lands of South Australia The Maralinga Aborigines of South Australia were moved to mission outstations beginning in the 1920s and were later restricted from their traditional lands for British nuclear weapons tests. Today they appear to be settling for a partial cleanup of the test site’s 3200 km2 of contaminated land as prelude to reoccupation. The British nuclear weapon testing program in Australia and the Pacific consisted of approximately twenty-one weapons tests and a number of small-scale experiments con-



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ducted between 1952 and 1963. The Maralinga site, the only inhabited testing site in Australia, was intended to be a permanent atomic bomb testing site—the “Los Alamos of the Commonwealth.” The Maralinga lands were returned to the traditional owners in 1984; today, access is restricted in 120 km2 of the test site’s 3200 km2. Cleanup commenced in 1996 and ended in 1999 after a sub-surface explosion occurred during stabilization of debris pits at one of the sites; even after an extensive investigation the cause of the explosion was not determined and the cleanup of the remaining pits (according to the original cleanup plans) was never completed. The most serious and long-term damage to the Maralinga Lands (in terms of total land area affected and level of contamination) is the result of the series of “Minor Trials.” These trials, which numbered about two hundred between 1953 and 1962, did not involve nuclear explosions. Plumes of plutonium dust were unexpectedly spread over five hundred square kilometers of land traditionally occupied by the Maralinga Aborigines however. The Maralinga Aborigines—unlike the Bikinians—were not evacuated from their land specifically for the testing. Beginning in the 1920s, drought conditions forced Aboriginals off their land and all around Australia Aborigines were being moved from their traditional lands to mission outstations. In the 1980s, there was a move on the part of the Aborigines in South Australia to leave the mission sites and return to a traditional lifestyle on their traditional lands. In 1984, the Maralinga people were granted 76,000 square kilometers of traditional land. Aboriginal control over the land was not absolute however. Rather, access to land transferred to the Maralinga Tjarutja with passage of the 1984 Maralinga Tjarutja Land Rights Act was restricted due to contamination resulting from the British nuclear weapons testing. On the Maralinga lands today, topsoil contamination is widespread, and contaminated debris pits dot the landscape. The most intensely contaminated sites are the Minor Trials sites. The Maralinga people have had fairly significant participation in decisions on cleanup and the turning back of traditional lands for resettlement, with the result that they have accepted—albeit with misgivings—lands that of necessity have considerable restrictions on their use. Maralinga representatives sat on the Royal Commission established in 1983 to consider the future of British nuclear test sites in Australia and on various advisory committees established subsequently. The Maralinga Rehabilitation Project

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was undertaken in 1996 with the goal of completing the cleanup process and opening the area to habitation or “to reduce the risk arising from radiation exposure of individual Aborigines, living an outstation lifestyle, to a level that was acceptable to the Aboriginal Community and the Australian Government.” The Maralinga people have agreed to extensive fencing to block access to the most contaminated areas and accepted the abrupt cessation of cleanup that followed the 1999 incident that ended efforts to stabilize contaminants that had been bulldozed into debris pits. III.  Trusting the Trustee: Cultural Vulnerability in Light of Incomplete Cleanup that Restricts Future Use Mistrust has been a significant factor inhibiting the forging of agreements on cleanup goals and approaches in both the Pacific Islands and Maralinga Lands. The relatively greater participation in decision making in Australia has seemingly contributed to a greater capacity for reaching mutually agreed decisions. The removal by scraping of large quantities of contaminated topsoil long desired by the Marshallese has been resisted by U.S. officials on both cost and ecological grounds, who argue that the associated ecological harm will require longer recovery time than the natural decay time of the most biologically active remaining contamination. The participants in the Maralinga cleanup, in contrast, rejected massive removal of topsoil on similar grounds. At present, Bikini Atoll’s main islands, Bikini Island and Eneu Island, are technically habitable, based on the U.S. EPA’s recommended fifteen millirem limit for annual radiation exposure and assumed continued restrictions on the consumption of locally grown food (coconuts in particular) and locally drawn water. In fact, Bikini today is said to have lower background radiation than some American cities. The problem, however, is that the ground still contains Cs137 and the failed 1973 relocation attempt remains a vivid memory for many Bikinians. The Marshallese now appear disinclined to accept much expert advice, to enter into agreements concerning another relocation attempt or to take actions that might limit or terminate the US role in maintaining health care, food, agriculture and water programs that have been set up since the first relocation. Similar mistrust characterizes the situation on the other major U.S. test site in the Pacific, Enewetak Island. Experts say the so-called Runit Dome is providing reliable protection



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from the plutonium and other radioactive constituents buried beneath it, while native Enewetakese see many reasons to interpret the available evidence differently. Just as cultural practices can increase a population’s susceptibility to hazards in their environment, the continued presence of hazards can pose a threat to culture itself, in other words, cultural vulnerability. Bikini today perhaps provides an example. Despite continuing concerns for contamination, Bikini does not lie uninhabited; indeed, it has become a resort center for international dive tourism, an industry much more able to accommodate the current restrictions on the consumption of locally grown food and water than traditional lifestyles. A few native Bikinians are able to live on the island, but mostly as employees of the tourism enterprise, with food and lodging provided by their employers. As noted in a 1997 New York Times article on Bikini, the paradox is that “the same atomic bombs and hydrogen bombs that once caused immense tragedy to the Bikinians . . . have now made the island an unusually valuable tourist property.” A similar cultural conundrum confronts the Maralinga people. Traditional practices like sleeping directly on the ground are rendered risky by the presence of surface plutonium contamination, capable of causing serious respiratory injury in even minute quantities if inhaled. The cleanup that was completed in 2000 resulted in 90% of the former Maralinga lands being returned in a condition that the participating parties agreed was fit for habitation. But members of a key governmental advisory committee have expressed concern that estimated risks to aboriginals pursuing traditional lifestyles on the returned lands are five times those considered acceptable to members of the general public. British and Australian authorities can perhaps be credited with earlier efforts and relatively greater success at achieving cultural understanding able to guide rehabilitation decisions compared with U.S. government efforts in dealing with the Marshallese. Nevertheless, the Maralinga people were still presented with a choice between culture and risk: they could return to their former lands, but not fully to their traditional lifestyles. The Australian government has acknowledged that the degree to which exposure pathways contribute to the potential dose to humans depends on the “type of lifestyle practiced by occupants of the land.” A statement in the 2004 final report of the Australian Radiation Protection and Nuclear Safety Authority on the cleanup is telling:

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thomas m. leschine Lifestyle changes could also markedly affect dose estimates. If in time the Maralinga Tjarutja were to move towards a more European lifestyle, with extensive areas being covered by concrete, tarmac, buildings and lawns, and living in western-style houses in suburban settings, then the dust levels and hence doses are expected to be much lower.

Hence the conception of habitability that guided the Maralinga Rehabilitation Project and led the government to hail the project’s completion an “unparalleled success,” may still raise fundamental questions regarding cultural values. Full resumption of traditional lifestyles can only be done at the assumption of greater risk. The presumption is that this tradeoff has been duly considered and accepted through the extensive involvement that members of the Maralinga Tjarutja had in decisions about the cleanup and rehabilitation of the site. IV.  Conclusions: Informing and Challenging Notions of Long-Term Stewardship With Lessons From The Pacific Proving Grounds These outcomes both inform and challenge the notion of long-term stewardship that has evolved in a different but related context—the U.S. Department of Energy’s responsibilities as custodian of more than one hundred contaminated sites spread across the U.S. mainland. These sites formerly comprised the manufacturing and testing complex for the U.S. nuclear weapons arsenal, including the bombs that were exploded in the Pacific Proving Grounds. The DOE has been criticized by the National Research Council and others for failure to factor into current cleanup planning the needs and uncertainties associated with future long-term stewardship. The ‘risk-based end states’ favored in present-day cleanup decision making presume that risks are known sufficiently and that actions taken today that preclude unrestricted use in the future are justified by present-day cost savings and the avoided collateral damage to ecosystems by less intensive actions to remove or sequester wastes. The issues raised by wastes left in place at sites across the U.S. weapons complex are not dissimilar from those that have confounded efforts to return the former proving grounds to conditions of habitability. The department relies on regulatory-driven approaches to cleanup decision making that aim to achieve once and for all outcomes in a single   Australian Radiation Protection and Nuclear Safety Agency, 2004.





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pass. Adaptive, learning-oriented and iterative approaches likely better able to recognize and respond to vulnerabilities that stem from future changes in social conditions or in the natural environment external to the sites themselves are little employed however. Local communities are in a better position to know and manage many of the longer term risks (e.g., those associated with changes in local land use) but they are in a position of inherently unequal power with respect to the federal government. This leaves them reluctant to let federal authorities off the hook with current cleanup, as the federal government is seen as not necessarily to be trusted to recognize or respond to future problems not anticipated in current cleanup actions. As a consequence, discussion among federal, state and local authorities about cleaning up toward conditions that are most likely to be manageable over time does not occur. Finally, the cleanup of the largest sites in the American West, particularly the Hanford Reservation in Eastern Washington, presents challenges to the cultural resilience of Native American tribes whose lands were ceded when the Manhattan Project took shape in the 1940s, and the cultural issues raised are not dissimilar from those experienced by the Marshallese and Maralingans. The elements and underlying conditions of governance that can make for a robust system of institutional management for lands with long-lived contamination are fairly well understood in a general way. Producing the requisite systems and conditions for the reliability, trust and constancy to mission through long time that seem necessary constitutes a very difficult challenge, however. The differences that currently exist between the RMI and the Bush Administration over the appropriate standards to apply in final cleanup actions on Bikini and Enewetak are illustrative. The RMI’s 2000 Changed Circumstances Petition to the U.S. Congress argued that the strictest radiation protection standards applied in U.S. mainland cleanups should be applied. In at least one mainland case (the Hanford Reservation) a 15 mRem cleanup standard was pursued as a way of producing conditions that would permit unrestricted human use, even though the planned use of the land as part of a National Monument is presumably enabled by less stringent cleanup. In its 2004 rejection of the RMI petition however, the Bush Administration argued that an older and more forgiving standard, 100 mRem of annual exposure, could be safely applied, stating further that since even the 15 mRem exposure standard was not currently being exceeded, no additional cleanup was in fact necessary. The debate is thus framed

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as maximizing cleanup or minimizing cost, ecological considerations and questions of compensation for past harm notwithstanding. As the Congressional Research Service’s 2005 review of the issue makes clear however, how much cleanup (and where) is required under either standard depends on estimated environmental concentrations of radioactivity in the areas that would be occupied and the pathways of exposure that would exist. What restrictions on use would be agreed to, and what would be done to assure that what is agreed to is honored and that agreed restrictions stay in place for as long as is necessary? The nature of discourse appears to be such that these questions have not received anything like the level of attention they have received in the more technocratic decision process that framed the Maralinga case. But even then, whether what was agreed to at Maralinga is what can be lived with remains to be seen. Early failures to facilitate human occupation in the presence of environmental contamination, like at Love Canal, New York and the 1973 attempt to resettle Bikini, do not perforce doom present day efforts like those ongoing at Bikini, Enewetak, and on the Maralinga lands. But learning from past failures is also a prerequisite, and better ways to capture and convey lessons across the growing number of political and institutional regimes dealing with these kinds of issues are needed.

CHAPTER four

Legacies and Perils from the Perspective of the Republic of the Marshall Islands Nuclear Claims Tribunal Philip A. Okney I.  Introduction At the birth of the Atomic Age in the 1940s, mankind’s attention was focused on World War II. Following the war, the major powers had a keen interest in the future use of atomic weapons. The United States devised a nuclear testing program in the Northern Atolls (Bikini and Enewetak) of the Marshall Islands. Between 1946 and 1958, the program oversaw the execution of sixty-seven nuclear tests. These tests resulted in fallout over both the land and ocean with radioactive fission, activation products and unfissioned nuclear fuel. The consequences of the testing program have drawn the attention of scientists, governments, the people of the Marshall Islands and other interested parties. The Republic of the Marshall Islands Nuclear Claims Tribunal was established primarily to address claims for damages to persons and property of citizens of the Marshall Islands. Since 1987, the Tribunal has resolved claims, awarded compensation and stayed informed on nuclear issues. The Tribunal is an independent body that has jurisdiction to exercise both administrative and adjudicatory authority. During the course of its work, the Tribunal has considered radioactive contamination of land and the resulting risk to human health. More importantly for this volume, information on the related themes of contamination in lagoon seawater, sediment, water tables and the oceans has been catalogued in the course of the Tribunal activities. II.  Radionuclides in Sediment and Seawater: A Legacy of Nuclear Testing Scientific interest in long-lived, man-made radionuclide behavior in the ocean and lagoon sediment and seawater in the Northern Atolls

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of the Marshall Islands originated with the conduction of the United States Nuclear Testing Program. Since the program’s inception in 1946, radiological data, which can be used to determine the relationship between radionuclides in the water and their effects on human health, has been collected. In 1963, E.E. Held from the University of Washington, Laboratory of Radiation Biology, published a ‘qualitative summary’ of data collected from samples at Rongelap Atoll lagoon in the late 1950s. Although mainly gross activity of particles of other than man-made radionuclides were identified, it is assumed that more sensitive techniques would more than likely have shown the presence of man-made radionuclides. The radionuclides Am241, Eu155, Cs137 and Sr90 have been found in the surface sediments in the Rongelap lagoon. While the radionuclides in the lagoon normally would not place people at risk for radiation exposure, their entry into the human food chain through consumption of marine life and transfer to land through soil replacement could potentially cause adverse human effects. It is noteworthy that sediment from Rongelap lagoon is less contaminated than sediment in Bikini lagoon. Soil replacement utilizing Rongelap lagoon sediment may well be safer than using soil from any of the other four most affected radiated northern atoll islands. Furthermore, Rongelap surface sediments are free of Cs137 and contain very low levels of transuranic radionuclides. Significantly, the levels of Pu239+240 in lagoon water collected in 1978 and 1981 are greater than background radiation in the equatorial Pacific Surface Waters between 1972 and 1982. Both Cs137 and Sr90 mix with seawater and cannot be differentiated from global fallout in the ocean water that comes into contact with the lagoon. These findings indicate the need for further study of lagoon sediments and seawater. Findings at Rongelap, in part, show that lagoon sediments contain the long-lived radionuclides Sr90 and the transuranic radionuclides Am241 and Pu239+240. As a consequence, human ingestion of edible marine life

   The Northern Atolls of primary concern for scientific work are Enewetak, Bikini, Rongelap, and Utrik. These are collectively known as the Four Atolls.   V.E. Noshkin et al., Lawrence Livermore National Laboratory, UCRL-LR-130250, Radionuclides in Sediments and Seawater at Rongelap Atoll (1998).    Ibid., at p. 5, Table 2.    Ibid., at p. 2.    Ibid., at p. 11.    Ibid., at p. 11.    Ibid., at p. 12.



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containing these radionuclides results in only a small part of the total effective dose to individuals residing on Rongelap. In an 1999 study “characterizing long-lived radionuclides available to the marine environment at Enewetak and Bikini Atolls, the observers found that man-made radionuclides contributed less than 0.3% of the total dose attributed to natural radionuclides present in the marine food chain.” Exposure pathways at Bikini Atoll are broken down into three components. Approximately 90% of the total effective dose results from ingestion of terrestrial foods, as a result of the uptake of Cs137 from the soil into the edible fruit. Approximately another 10% of the dose is the result of external gamma exposure from Cs137 in the soil. The rest of the pathways and radionuclides contribute approximately 1% of the total fifty-year integral dose, and of that portion the contribution of the marine food chain is approximately 0.05%.10 A May 2001 study by Robison, Noshkin, Hamilton, Conrado, and Bogen looked into whether materials employed as tracers or otherwise associated with the nuclear testing program “could be of sufficient concentration in either the marine environment or on the coral islands to be of a health concern to [people].”11 The assessment concluded that “the environmental concentration of these materials at the atolls is very, very low [and] they pose no toxicological or radiological risk, and they pose no adverse health affects to people living, or planning to live, on the atolls.”12 The materials assessed over the life of the program, including their quantities and half-life, are as follows: – sulfur 727,000 grams (g), stable – arsenic 75.7g, stable – yttrium 236g, stable – rhodium >200g, stable – indium 2,600g, stable

  Ibid., at p. 12.   W.L. Robison & V.E. Noshkin, “Radionuclide Characterization and Associated Dose from Long-Lived Radionuclides in Close-In Fallout Delivered to the Marine Environment at Bikini and Enewetak Atolls,” 237–238 Sci. Total. Env’t. 311 (1999). 10   Ibid., at p. 326. 11   W.L. Robison et al., Lawrence Livermore National Laboratory, An Assessment of the Current Day Impact of Various Materials Associated with the U.S. Nuclear Test Program in the Marshall Islands May 1, 2001, http://www.llnl.gov/tid/lof/documents/ pdf/240532.pdf. 12   Ibid., at p. 19.    

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– tantalum 88.3g, stable – tungsten 3,100g, stable – gold 500g, stable – thallium 155,000g, stable – polonium-210 1.09g, 138.4 d – thorium-228 0.0023g, 1,912 y – thorium-230 1,494g, 7.7 × 10 4 y – thorium-232 1,080,000g, 1.4 × 10 10 y – uranium-233 1,094g, 1.62 × 10 5 y – uranium-238 66,980,000g, 4.47 × 10 9 y – americium-241 0.29g, 433 y – curium-242 1.8g, 162.94 d.13 In general, the listed materials that were part of tests over water or in the atmosphere would not have been deposited on land.14 Due to the characteristics of the cloud resulting from a nuclear detonation “most of the materials volatilized during the explosions . . . were deposited over the Pacific and other world oceans and global land masses. . . . [L]ocal fallout is the source responsible for the radioactive contamination at the atoll, but the amount represents only a small fraction of the total amount produced during the test series and of the estimated local and regional component.”15 U238 is the single largest quantity on the materials list. Most of the 238 U would be broken down by the explosive process. It is estimated that about 281 kg of the original 66,980 kg could have been dispersed on the atolls. The remainder was cast over the oceans and land areas.16 Naturally occurring uranium is found in marine corals worldwide. Samples of coral from Enewetak have been analyzed for uranium content. Results from Enewetak and other atoll corals show that the uranium concentration in corals from around the world compare favorably with those found in the Marshall Island corals and pose little threat to human health.17

  Ibid., at p. 2, Table 1.   Ibid., at p. 2. 15   Ibid., at p. 7. 16   Ibid., at p. 11. 17   Ibid., at pp. 13–14, Tables 10 & 11, p. 18. 13 14



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This brief survey of the many water studies performed by scientific observers demonstrates limits on the current dangers of the effects of radiation on human health. One can see that specific environmental conditions are necessary for the transport of man-made radionuclides into the human food chain. Today population groups are living on Enewetak and Utrik Atoll. Radiological surveillance of these residents indicates that, given their current diet supplemented with United States canned food, risk to their health from man-made radionuclides found in lagoon waters is minimal. III.  Runit Dome: Environmental Risk and Temporary Storage of Nuclear Waste From 1977 to 1980 the United States completed a cleanup of the test site at Enewetak Atoll. Part of the cleanup resulted in the storage of nuclear waste materials at Runit Island in the atoll. The storage area was capped with a concrete dome. It is this domed area at Runit Island and related health issues that has captured the concerns of the Enewetak community. Although Bikini Atoll was the original nuclear testing site for the United States, the Atomic Energy Commission selected a second testing site, Enewetak Atoll, in 1947 because the “Bikini Atoll islands were neither large enough nor properly oriented for construction of a major airfield and support base.”18 The choice of Enewetak Atoll was favored over locations in the Indian Ocean, Alaska, Kwajalein Atoll (Marshall Islands), as well as in the continental United States. On December 21, 1947, 136 residents of Enewetak were relocated to Ujelang Atoll. Between 1948 and 1958, the U.S. Navy prepared the site for the fortythree nuclear tests which “produced close-in fallout that contaminated the islands and lagoon of the atoll with radioactive fission and activation products, and unfissioned nuclear fuel.”19 Runit Island and its reefs “were used for nine nuclear events and nine more were detonated on barges in the nearby lagoon.”20

18   R.R. Monroe, “The Radiological Cleanup Of Enewetak Atoll,” Defense Nuclear Agency (1981). 19   Ibid. 20   Ibid., at p. 403.

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The Enewetak community representatives pressed for and had been promised that they could return to their homeland once the United States had finished with its use of the atoll. Cleanup of the atoll was necessary to promote a safe return and [i]n 1972, the U.S. government announced that it would conduct a cleanup and restoration operation to return the atoll to the Enewetak people. The cleanup began in 1977 and lasted to 1980 and focused on reducing the concentration of the TransUranium elements (TRU)* in soils on some of the islands that might eventually be used for residence or for subsistence agricultural.21

As part of the cleanup, the environmental impact study identified areas containing plutonium concentrations over 400 pico curies per gram. Four islands, including Runit, fell in this category. On Runit, there was a crater about 37 feet deep and 346 feet across created by the Cactus nuclear event.22 Planners chose Cactus Crater as a temporary cleanup storage site for “relocating soil and some other contaminated debris. Some of the contaminated soil was mixed with cement and the mixture placed below the water level in the Cactus Crater. The remainder of the contaminated material was mixed with concrete and was placed above ground over the crater in the shape of a dome. A concrete cap was constructed over the dome of soil.”23 This became known as the Runit dome. The Enewetak community often raises environmental and human health concerns about the Runit dome and the ocean and lagoon water surrounding the site. Scientific observers have studied: aquatic impacts from the radionuclides entombed in the crater. A National Academy of Sciences (NAS) committee examined the dome and concluded that the containment structure and its contents present no credible health hazard to the people of Enewetak, either now or in the future. The committee suggested that ‘at least part of the radioactivity contained in the structure is available for transport to the groundwater and subsequently to the lagoon and it is important to determine whether this pathway may be a significant one’.24

*  Pu238,239,240 and Am241 are both transuranium elements. See “A Note on Radioactive Materials and Their Measurements,” infra, for a more detailed explanation. 21  V.E. Noshkin & W.L. Robison, “Assessment of a Radioactive Waste Disposal Site at Enewetak Atoll,” 73 Health Physics 234 (1997). 22   R.R. Monroe, supra note 18, at p. 405. 23  Noshkin, supra note 21, at p. 234. 24   Ibid.



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Acting upon this suggestion by the NAS, several follow-up studies associated with the radioactive waste disposal storage site at Runit Island and the marine environment at Enewetak have been performed. In fact, an assessment published by observers at Lawrence Livermore National Laboratory in 1997 stated that: a surveillance program was started in 1980, in conjunction with other research efforts, to study the radionuclides in samples of fish, groundwater and lagoon seawater. Our data and conclusions support the findings suggested by the National Academy committee over a decade ago in that any assumption of rapid remobilization of all or any of the dome’s transuranic or other radionuclides is an extreme one. Any fear that this structure contains amounts of activity whose release would cause damage to the environment that will result in greater effect on human health is unfounded.25

In regard to fish, the assessment found that: there has been essentially no change in the mean concentration of Pu239+240 in the flesh of reef or pelagic fish over time. The concentrations are comparable to levels measured in the flesh of fish from other regions of the Atoll that are caught and used as part of the marine diet by the Marshallese people. This near constant level in fish is regulated by the slow release and loss of the plutonium from the Atoll sediment reservoir.26

Given that conditions in the ocean and atoll lagoon environment remain fluid, radiological monitoring is necessary to assure both the scientific and atoll communities that past radiological characterizations predicting future stability in radionuclide-seawater interaction continue to be reliable. In mid-2005, a team from Lawrence Livermore National Laboratory completed a mission at Enewetak as part of a Department of Energy radiological surveillance program. They monitored the environment adjacent to Runit Island through a sampling survey of water, sediment, fish, and marine biota. The purpose of these activities was to try to identify, analyze, and predict the outcome of any isotopic signatures coming from Runit Dome.27

  Ibid.   Ibid., at pp. 245–46. 27   Upon completion, a report containing pertinent data will be posted on the Lawrence Livermore National Laboratory’s website; to access a report containing pertinent data from the period preceding 2005, see T.F. Hamilton et al., “Individual Radiation Protection Monitoring in the Marshall Islands: Enewetak Atoll,” (2002–2004) https://eed .llnl.gov/mi/pdf/Hamilton_UCRL-TR-220591.pdf (last visited November 26, 2008). 25 26

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IV.  An Episode: Storage of Low Level Nuclear Waste in the Marshall Islands Failure of Public and Private Promotion Efforts If not for the United States Nuclear Testing Program and resulting widespread contamination of the atolls in the 1940s and 1950s, the Marshall Islands government would have had no need to consider the storage of low-level radioactive waste on the contaminated lands in the 1990s. Faced with the populace fears and concerns of residual radioactivity on the affected atolls, the government representatives searched for a solution that might benefit the citizenry. Debate about the proper remuneration and location for a storage site raged for years. Eventually, the people decided to return to the policy of resettlement of their homelands advocated by the Bikini community and the Marshall Islands government and echoed in the original Compact of Free Association (COFA) Section 177 Subsidiary Agreement.28 After achieving the status of an independent state in free association with the United States, along with negotiating an eye-opening economic package, the Marshall Islands government turned its attention to attaining the goal of economic self-sufficiency. In trying to return displaced population groups to their former inhabited atoll lands now, as agreed in the Section 177 Subsidiary Agreement, COFA, it became apparent that considerable funding was needed by the four most-affected Northern Atoll communities to restore and rehabilitate to productivity these contaminated lands so that owners could take up residency on their lands. Such funding was not available from within the Republic. However, it became obvious that storing low-level nuclear waste in these contaminated areas could generate revenue. The logic was simple: certain lands could become revenue generating, thus, eliminating the expense of removing the contamination from these lands; and the revenues could be used to restore and rehabilitate the remaining contaminated lands. Because the United States was working to select a permanent site for a nuclear waste repository, the Marshall Islands government first lobbied in Washington for the addition of the Marshall Islands to a legislative list of available sites. Although this endeavor met with success, the plan ultimately failed because the United States decided to locate the repository within the borders of its own country.   Compact of Free Association Act of 1985, Pub. L. No. 99–239, 99 Stat. 1778 (1986).

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The Marshall Islands then looked westward and sought support from the Pacific region leadership for the Marshall Islands to open its territory as a site for nuclear waste storage. Early in 1994, the Marshall Islands Cabinet established the National Commission for the Protection and Maintenance of Global Health, Environment, Peace, and Security (PAMGHEPS Commission) to promote cleanup of the contaminated atolls and, at the same time, advance the scheme for the nuclear waste storage. In August 1994, His Excellency Amata Kabua, President of the Marshall Islands, in a speech to the South Pacific Forum, outlined a plan for an association of Pacific states to back the disposal of nuclear materials on an uninhabited island(s) of the Marshall Islands.29 At the conclusion of the session, the Forum took the waste proposal under advisement and raised no major objection to a feasibility study. In September 1994, the Marshall Islands Nitijela (parliament) passed a resolution for the accession of the Republic to the Treaty on the NonProliferation of Nuclear Weapons. In October 1994, Ambassador to the United States Wilfred Kendall held discussions with private enterprises in Japan, South Korea, and Taiwan in order to promote the Marshall Islands as a repository for nuclear waste disposal. The Marshall Islands gathered support for a feasibility study for a repository site within its borders by promising adherence to the International Maritime Organization standards and the use of International Atomic Energy Agency technical assistance and personnel. This second promise by the Marshall Islands government was explored at a meeting of the IAEA in January 1995.30 The message of the government was clear. Because funding from the United States for the cleanup of contaminated atolls was slow in materializing, the Marshall Islands would seek other means to accomplish their goal of restoration of contaminated land. In November and December of 1994, the Marshall Islands and the United States clashed during meetings to discuss the government’s economic goals and the implementation of the COFA. At these meetings, the Marshall Islands Minister of Foreign Affairs expressed disappointment at the United States officials’ lack of support for a feasibility study on the waste disposal site. The Marshall Islands government

 Nitijela Res. 124, at p. 5 (1999).   Ibid., at pp. 4, 6.

29 30

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maintained that sites in the country were both ‘geologically’ and ‘geographically’ well-situated for a repository and recommended that a decision on the proposal remain pending until officials from the two governments held further discussions.31 A lengthy Nitijela resolution summarizing the strides taken towards completion of the feasibility study and establishment of a nuclear waste repository was then approved on January 13, 1995.32 Still, diplomatic efforts by the Marshall’s government could not convince the United States to support a feasibility study. In early 1995, the United States confirmed its refusal for involvement in the Marshall’s nuclear storage project. After all, the COFA contained a strong statement which frowned on the storage of radioactive material in the freely associated states.33 In March 1995, after meeting with private concerns seeking a lowlevel nuclear waste storage site, legal counsel for Kili/Bikini/Ejit local government suggested that educating the affected communities about nuclear waste would encourage them to approve any decision for waste storage at Bikini Atoll. Based on this suggestion, the Local Council passed Resolution 3–95, which directed its legal counsel to prepare materials on nuclear waste storage for educational purposes. Shortly thereafter, several issues of the local newspaper featured an open debate on the activity, which revealed that the Bikini community opinion was split on the question of a low-level nuclear waste storage.34 By May 7, 1995, the Marshall Islands government publicly supported an amendment to the Nuclear Non-Proliferation Treaty calling for cleanup of the contaminated lands in the Northern Atolls to ‘appropriate standards,’ assistance in the effort by the United States, and oversight by ‘appropriate organs and specialized agencies of the United Nations’ for the cleanup, disposal, and resettlement of the contaminated areas.35 The approved amendment by the United Nations gave international 31   Text of statement by Marshall Islands Minister of Foreign Affairs, Hon. Phillip Muller, “U.S. Urged To Face Problems,” 25:51 Marshall Islands J. (1994), at 1, 17, 20. 32  Nitijela Res., supra note 29. 33   Compact of Free Association, supra note 28, at § 314, Title Three. 34   Citizen Niedenthal, Letters to the Editor, “Attorney Called ‘Abortionable,’” 26:11 Marshall Islands J. (1995) at 8; Jonathan M. Weisgall, Letters to the Editor, “Weisgall Responds: Don’t Prevent Bikinians from N-waste Option,” 26:13 Marshall Islands J. (1995) at 8–9; Citizen Niedenthal, “Fools Rush in Where Angels Fear to Tread,” 26:4 Marshall Islands J. (1995) at 9–10. 35   Journal Staff, “Special Responsibility,” 26 Marshall Islands J. (1995) at 19, last page.



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recognition to the idea that the United States was responsible for the effects of nuclear testing in the Marshall Islands.36 Interestingly, on May 17, 1995, the Kili/Bikini/Ejit Council repealed its earlier action promoting nuclear storage through the educative process and resolved to achieve its “goal to cleanup and resettle Bikini.”37 V.  Creation of the Nuclear Claims Tribunal: A Remedy for the Consequences of Nuclear Testing The signing of 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 signed on June 25, 1983 addressed the legacy of the United States nuclear testing program located in the Northern Marshall Islands, coupled with a remedy for the program’s ramifications and resulted in an event of historic proportions.38 The agreement provided for the establishment of a Claims Tribunal that would have 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.”39 36   Journal Staff, “NPT Review Agrees: U.S. Responsible for N-test Damages,” 26:20 Marshall Islands J. (1995). 37   Journal Staff, “Bikini Council Goes for Island Cleanup,” 26:20 Marshall Islands J. (1995). 38   With the onset of the signing of the Compact of Free Association (COFA) on May 30, 1982 and the revised COFA on June 25, 1983, along with its subsidiary agreement implementing § 177 of the COFA, the Marshall Islands electorate voted to approve the COFA on September 7, 1983. Section 177 sets forth provisions for the settlement of all claims; the continued administration by the U.S. of direct medical surveillance, treatment programs and radiological monitoring; and the assumption of responsibility for enforcement of limitations on the use of affected areas by the RMI with assistance by the U.S. The United States completed the necessary Congressional approvals in 1985, thus opening the way in January 1986 for President Regan to sign into law the COFA effective as of October 1986. By 1991, the United Nations Trusteeship Council terminated the trusteeship of the island group and the Marshall Islands became a member state of the world organization. See A.C. Deines et al., “Marshall Islands Chronology 1944 to 1999 (draft)” (1991) (on file with History Associates Inc., The Historic Montrose School, Rockville, Maryland, DOE DE-AC08–87NV10594), at pp. 69, 78–79. 39   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 (Section 177 Agreement), Compact of Free Association Act of 1985, Pub. L. No. 99–239, Art. IV, § 1 [hereinafter 1985 COFA]. The Nuclear Claims Tribunal was established in 1987 by an act of the Marshall Islands Nitijela (parliament). Marshall Islands Revised Code, 42 MIRC Chap. 1, §§ 101–33 (Marshall Islands Nuclear Claims

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Thus, the United States’ commitment to compensate citizens of the Marshall Islands resulted in a regime whereby a claimant would be eligible for an award upon proof of personal injury and/or loss or damage to his or her property. “In fulfillment of its obligations under Section 177 of the Compact of Free Association” the United States agreed to make available for the establishment of a fund by the Marshall Islands the sum of $150 million.40 Most often individual personal injury claimants and class claimants, who are seeking relief for loss or damage to property, have appeared before the Tribunal to prove they are entitled to an award of compensation.41 In the property damage claims category, the claimant is

Tribunal Act 1987). Finality on nuclear claims was thought to be achieved by both parties to the COFA and the espousal of all claims that resulted in the dismissal of pending United States litigation, underscored this belief. Compact of Free Association Act of 1985, Pub. L. No. 99–239, Art. X, §§ 1–2. This provision prompted the dismissal of pending litigation in the United States including: The People of Bikini v. U.S.A. et al., C.A. No. 84–0425, US District Court (Hawaii); Antolok v. United States, 873 F.2d 369 (D.C. Cir 1989) (Antolok I); Antolok v. Brookhaven Nat Lab, No. CV822364 (Antolok II); Juda v. United States, 6 Cl. Ct. 441 (1984); Juda v. United States, 13 Cl. Ct. 667 (1987); Kabua v. United States, 546 F 2d. 381 (1976), cert. denied, 434 U.S. 821 (1977); Nitol v. United States, 7 Cl. Ct. 405 (1985); Nitol v. United States, 13 Cl. Ct. 619 (1987); Peter v. United States, 6 Ct. Cl. 768 (1984) and Peter v. United States, 13 Cl. Ct. 691 (1987). 40   1985 COFA, supra note 39, at art. I, § 1. In December 1986, the Marshall Islands vested the fund “to provide, in perpetuity, a means to address past, present and future consequences of the Nuclear Testing Program” including awards, programs and services. Ibid., at § 1(d). 41  In the case of a personal injury claimant, the compensatory award process adopted by the Tribunal draws upon “a list of medical conditions which are irrebuttably presumed to be the result of the Nuclear Testing Program” and each listed condition contains a corresponding amount of compensation that reflects the severity of the condition. (The list of conditions and corresponding amounts can be found at http://www.nuclearclaimstribunal.com/claim (last visited August 2, 2008).) Marshall Islands Nuclear Claims Tribunal Act, § 123(13)(a) (1987), and Regulations § 220(b), (c). This presumptive scheme provides an “efficient and uniform” approach to the “payment of compensation” to the claimant and compares favorably with presumptive compensatory programs available to similarly situated United States citizens involved in the Radiation-Exposed Veterans Compensation Act of 1988 and the Radiation Exposure Compensation Act. Marshall Islands Nuclear Claims Tribunal Act, §123 (13); see Radiation-Exposed Veterans Compensation Act of 1988 (codified as amended, 38 U.S.C. § 101 et seq.), and Radiation Exposure Compensation Act of 1990 (codified as amended, 42 U.S.C. § 2210 et seq.) That the two country areas of exposure compare favorably to each other is demonstrated by the similarity in size of the land areas. For a map comparing the two areas, see the Marshall Islands Nuclear Claims Tribunal Annual Report to the Nitijela for the Calendar Year 2003, copies of which are available from the author at P.O. Box 702, Majuro, Marshall Islands, MH 96960. A discussion “comparing exposures from the U.S. Nevada test site and the Marshall Islands Nuclear



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required to present evidence of causation between the damage claimed and the Nuclear Testing Program and an ownership interest in the property.42 A total of 7204 claims had been filed in the Tribunal as of December 31, 2005; this figure includes all categories of claims. As of the same date, the Tribunal has awarded personal injury compensation totaling $88,291,750 to 1958 individuals. Of that amount, $72,867,947 has actually been paid to those awardees or their heirs, leaving an unpaid balance of $15,423,802. Large numbers of individual loss or damage to property claims have been filed in the Tribunal. But, of the twenty-four populated atolls, the majority of the individual property claimants are represented by the eighteen atoll class action suits filed in the Tribunal as of December 31, 2005. Of these eighteen class action suits, decisions have been rendered in the Enewetak and Bikini class claims. As of December 31, 2005, the Tribunal had paid out $1,647,482 on an award of $487,548,817 to the people of Enewetak. At the same time the Tribunal had paid out $2,279,179 on an award of $631,379,179 to the People of Bikini. A.  Enewetak Class Action On April 13, 2000 the Enewetak claim was decided and a written decision filed in the Tribunal.43 The thirty-four page Memorandum of Decision and Order consists of an introduction; factual background section; framework of compensation analysis; loss of use, restoration, and hardship damages discussion and a conclusion. Tribunal concern focused on issues of damage remedied by awards of compensation since the United States admitted its “responsibility [liability] for compensation owing to citizens of the Marshall islands . . . for loss or damage to

Testing Program to individuals” can be found on the web at: http://foreignaffairs.house .gov/110/pla072507.htm (last visited July 27, 2008). 42  Marshall Islands Nuclear Claims Tribunal Act 1987, § 123 (15). Decisions must be by a preponderance of the evidence proved. Tribunal determination of the amount of any award shall “take into account the validity of the claim”, any prior compensation made as a result of such claim and “such other factors as it may deem appropriate.”. Ibid., at § 123 (12). Some of these “other factors” are the amount of property owned, the nature of the ownership interest; and the extent of the loss or damage. Ibid., at § 123 (14)(b), (15). 43  In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902, Apr. 13, 2000, http://www.nuclearclaimstribunal.com/bikinifin.htm.

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property and person. . . .” in the COFA.44 In reaching its conclusions, the Tribunal’s opinion draws on Marshall Islands law as well as customary law, United States statutory and case law and concepts of international law.45 To begin, the Tribunal took the view that “the goal of compensation, where there has been harm to property, should be to make the owner whole through the award of proper damages.”46 It is clear that the lands of Enewetak Atoll were contaminated with radiation due to direct fallout from nuclear testing and that residual radiation contamination remains in the soil and lagoon. To deal with these damages the land and the lagoon were to be treated as one category of damage.47 The Tribunal ruled that restoration of the lands to

  1985 COFA, supra note 49, at § 177(a).   Ibid., at art. IV § 3. 46   Hence the adoption of legal principles from the Restatement (Second) Torts § 929, Harm to Land from Past Invasions: (1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for (a) the difference between the value of the land before the harm and after the harm or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred, (b) the loss of use of the land, and (c) the discomfort and annoyance to him as an occupant; served as a framework for the decision making process. Determination of loss of use damages arose from the holdings discussed in Kimball Laundry Co. v. United States wherein the rule that fair rental value constituted the measure of damages in temporary takings was applied. Kimball Laundry Co. v United States, 338 U.S. 1 (1949). Real estate market appraisers familiar with land values in the Pacific Island community presented expert testimony establishing fair rental value for atoll land. Their methodology for calculating past loss of use damages produced a loss of use value “by multiplying the relevant annual rental value times the affected acreage times the period of years use of the land was lost to the owners.” In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902, p. 6 (Apr. 13, 2000). To calculate future denied use an income capitalization approach was applied. Both past loss of use and future loss of use values were provided to the Tribunal by the expert appraisers. These values were adjusted “for the deferred nature of the compensation for past loss and a discount for future loss” as well for as past compensation provided by the United States to class claimants. Ibid., at p. 6. 47   In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902, Decision and Order, pp. 7–8 (Aug. 11, 1995), and Order, p. 12. At page 12 the Tribunal stated: Paragraph 4 of the Defender’s Motion is GRANTED in part to the extent that no separate award will be made for loss of use of the reef and lagoon to the extent that Claimants request and are awarded damages on the basis of loss of use. Such damages will be included in and will be considered as a part of loss of use of the land of the atoll. 44 45



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a degree consistent with current accepted radiological health protection standards was the proper approach to fashion a just remedy.48 Cleanup costs were set after hearing various approaches to eliminate the risk to human health from the contaminated soil. These clean up techniques included: phytoremediation; soil removal, disposal and replacement; and spreading of potassium. Disposal of contaminated soil could be achieved within the atoll boundaries by entombment at an appropriate site or incorporated into the construction of causeways between islands or, alternatively, exported to a site outside the Marshall Islands. The remedy for damages to the atoll lands factored in the costs of soil rehabilitation and re-vegetation coupled with radiological monitoring of the resettled population. However, direct costs of resettlement of the community were held to be part of loss of use damages rather than a separate category of damages. The hardships endured by the people of Enewetak persuaded the Tribunal that an award for discomfort and annoyance was a fitting remedy. While the atoll population was evacuated from their homelands before the commencement of nuclear testing at Enewetak in 1947 and did not return to a portion their homelands until 1980, the alternative lifestyle offered by their presence on Ujelang Atoll gave rise to compensable hardships including “famine and hunger, near starvation and death from illness, food shortage and the limitations of the environment on Ujelang (fishing/collecting), the polio epidemic, the measles epidemic, the rat infestation, . . . continued homesickness and desire to return to Enewetak.”49 In total, the award of compensation as concluded by the Tribunal amounted to $325 million (rounded). Categories of damages set past

48   This approach relied on United States case law and environmental statutes and regulations along with evidence relating to the land given by scientific experts. Determination of an appropriate standard and its application to the land restoration process involved both legal concepts and expert scientific testimony. On December 21, 1998 the Tribunal had ruled that the United States Environmental Protection Agency “policies and criteria set out in OSWER No. 9200.4–18, including a general dose limit of 15 millirem per year effective dose equivalent to the reasonably exposed maximal individual are hereby ADOPTED by the Tribunal.”. In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902; Bikini, NCT No. 23–04134; Rongelap, NCT Nos. 23–2440, 23–501, 23–05443B, & 23–05445B; Utrik, NCT No. 23–06103 consolidated, Memorandum of Decision and Order, p. 7 (Dec. 21, 1998). 49   In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902, P. 28 (Apr. 13, 2000).

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and future loss of use damages at $199 million, restoration costs of $92 million and compensation for hardships suffered at $34 million (all rounded).50 B.  Bikini Class Action The people of Bikini filed their claim before the Tribunal on September 13, 1993, and the decision to award compensation to the People of Bikini was made by the Tribunal on March 5, 2001.51 In 1946, the people of Bikini Atoll were removed by the United States from their homeland in preparation for the nuclear testing program conducted from 1946 to 1958. Unlike the Enewetak community, the Bikinians have not returned to their home atoll. In 1969, a clean up of the atoll was initiated by the United States and a small number of community members returned to Bikini Island.52 When determining the loss of use damage component of the award of compensation, the Tribunal followed the approach set out in the Enewetak decision. For the value of past lost use less prior compensation the Tribunal awarded $164 million. Together with the sum of $114 million for future denied use, total loss of use compensation amounted to $278 million (rounded). In its discussion of the damage award for restoration of the atoll’s lands, the Tribunal found the cost to be $360 million including: 1. soil excavation and removal; 2. periodic clearing of land of underbrush prior to potassium applications; 3. purchase and periodic application of potassium/potassium fertilizer; 4. soil management that ensures proper dosage of potassium/potassium fertilizer; 5. a comprehensive surveillance program involving soil and crop samples analyses and bioassays; and 6. disposal of contaminated soil through construction of an elevated and sealed causeway.   Ibid., at p. 33.   In the Matter of the People of Bikini, et al., Claimants for Compensation, NCT No. 23–04134, (Mar. 5, 2001). The organization of the forty four-page opinion resembles the judgment in the Enewetak claim by including a summary, procedural history, factual background, framework of compensation analysis, loss of use calculation, two individual appraisal reports, restoration cost of clean up, hardship discussion, and a conclusion. 52   These residents were evacuated by the United States in 1978 when it was discovered that “due to excessive radiation exposures,” the burden of radionuclides in their bodies exceeded acceptable radiation health protection standards. Ibid., at p. 11. 50 51



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This total must be adjusted by the amount of $19,000,000 (U.S. Public Law 97–257) and $90,000,000 (U.S. Public Law 100–446). Restoration damages for clean up and rehabilitation of Bikini total $251,500,000.”53

Evidence provided to the Tribunal describing hardships of the Bikini community due to removal from their home lands encompassed “relocation to alternative lands, subsistence problems, changes in their subsistence pattern from marine to agriculture, loss of control over their lives, loss of the pleasures of life on an atoll as opposed to an island, and the undermining of traditional authority.”54 Also considering the food shortages and malnutrition, the Tribunal recognized that these consequences of the testing program resulted in a discomfort and annoyance award of compensation in the sum of $34 million. Totals from the three categories of damages produced a total award of compensation of $563 million (rounded).55 C.  Payment of the Class Action Awards Annual pro rata payments have been made by the Tribunal to satisfy the statutorily required yearly payment of the property awards of compensation on an available funds basis.56 In 2002, the first annual payment on the Enewetak award was $1.1 million (rounded) at a rate of 0.25 percent of the total award while the second payment of $568,732 at a rate of 0.125 percent was made in 2003. Payment of the Bikini award in 2002 was $1.5 million and in 2003 $787,370 at the same rates as the Enewetak payments, respectively.57   Ibid., at p. 35.   Ibid., at p. 36. 55   Ibid., at p. 43. 56  Marshall Islands Nuclear Claims Tribunal Act 1987, § 123(17)(b)(iii)(B). 57  Order, February 1, 2002, and Order, Feb. 4, 2003, In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No. 23–0902, Apr. 13, 2000 and In the Matter of the People of Bikini, et al., Claimants for Compensation, NCT No. 23–04134, Mar. 5, 2001, consolidated. Payments for later years have been deferred by the Tribunal in order to conserve funds. Statement of Determination, Nuclear Claims Tribunal, Republic of the Marshall Islands, p. 2 (Oct. 1, 2003). A total of $3.956 million (rounded) has been paid out of the fund for property awards. The supply of funds necessary to meet the payment of awards previously issued by the Tribunal is also of concern. Initially the Nuclear Claims Fund had a balance of $150 million. As of December 2005, the Fund stood at $1.86 million (rounded). Additional funding is being sought from the United States through direct efforts in Washington. The Marshall Islands government, through the “changed circumstances” provision of the COFA, has petitioned the Congress to address injuries resulting from the nuclear testing program that arose or were discovered after the effective date of the agreement and have served 53 54

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Only time will tell whether the Tribunal claims and awards process is a final remedy for the consequences of nuclear testing in the Marshall Islands. Personal injury claims and awards continue to be administered by Tribunal officials. In the category of class action damage or loss to property claims, sixteen class claims remain outstanding.58 VI.  Conclusion Over the last sixty years, events linked to nuclear testing have had a profound impact on the people and their lands and waters in the Marshall Islands. Herein a brief description of the vast amount of information gathered in the Tribunal has been presented. The study of lagoon waters of the Bikini and Enewetak Atoll test sites, as well as the fallout site at Rongelap, reveals the presence of radionuclides, but in spite of this condition, the lagoons remain hospitable to fish, corals and other bio aquatic life forms. Because they are low in radionuclides, edible parts of fish from the lagoons of these three atolls are still part of the Marshallese diet today. These natural land and water areas presently invite bright prospects for economic gain through eco-tourism and diving activities at places on Bikini and Rongelap Atolls, offer historic preservation sites for viewing and retain traditional usages, as well. International commercial fishing and sport fishing in the ocean waters of the Marshall Islands is growing at a brisk pace. Monitoring of the Exclusive Economic Zone is reflected in the licensing of vessels and surveillance of the country’s waters by surface and air travel. Commercial catch of tuna in Marshall Islands waters is monitored and no restrictions attach to the catch and sale of these fish in foreign markets as a result of nuclear testing.

to “render the provisions of this Agreement manifestly inadequate.” 1985 COFA, supra note 49, at Art IX. 58   While there is a substantial number of individual damage or loss to property claims, the large majority of these individuals have opted to be included in the class actions claims. The class action claims of Rongelap, Utrik, and their associated atolls, which were also severely affected, remain pending with a decision expected in 2006. Fourteen remaining atolls have filed their class action claims. The atolls of Ailinglaplap, Ailuk, Jabat, Jaluit, Kwajalein, Lae, Likiep, Lib, Majuro, Maloelap, Mejit, Ujae, Wotho, Wotje are these fourteen class claims. Time and funding restraints have made it necessary for the Tribunal to resolve these claims by an administrative rather than an adjudicatory process. This administrative process is going forward and the remaining claims were projected to be resolved before the end of 2007.



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Storage of radioactive soil and debris from the test sites on the atolls is of deep concern to their inhabitants. The temporary nuclear storage site at Runit Island has been the subject of intensive study. Results from scientific observation indicate that the Runit dome is secure and leakage causing contamination to surrounding areas is an extremely unlikely event. However, continued monitoring of the structure is reasonable to assure the community of its safety. In the 1990s the Marshall Islands faced and resolved a dilemma over the storage of low level nuclear waste on contaminated lands, the revenues from which would have served to finance the cleanup and resettlement of the vast majority of land damaged from nuclear testing. Support for the project wavered, community members argued among themselves and precious resources were diverted from the real task of returning people to their homelands. The storage project did help to strengthen the resolve of the islanders to take positive steps toward restoration of their lands and to better understand the potential for damage to the environment from radiation. Through the years the Nuclear Claims Tribunal has served its purpose in determining full, fair and just compensation for those damaged by nuclear testing. While payment of the awards has suffered from limitations on available funding, the need for adequate funding is being addressed by the United States and the Marshall Islands.

CHAPTER five

The Legacy of French Nuclear Testing in the Pacific Laurence Cordonnery I.  Introduction The French began a nuclear testing program in the Pacific in the 1960s and completed it in the 1990s. For more than forty years, the French government remained secretive about the testing, allowing researchers minimal or no access to either the data it collected or the atolls where the testing took place. This Chapter examines the legacy of French nuclear testing in the Pacific, which, after thirty years of governmental denial, is beginning to come to light. Part I provides a basic overview of the Chapter. Part II discusses the political dimensions of the French nuclear testing in the Pacific, focusing on the atolls where the testing took place and international opposition to the testing. Part III gives an overview of the environmental concerns resulting from the testing. Part IV summarizes the findings of the few scientific studies that the French government permitted to conduct on the atolls. Part V discusses the implications of international law on the French testing. Finally, Part VI gives a conclusion and several recommendations to help minimize the impact of the testing on the environment or human health. II.  The Political Dimension of French Nuclear Testing in the Pacific In 1962, despite the opposition of the French Polynesia Territorial Assembly, President Charles de Gaulle decided to establish nuclear facilities (Centre d’Expérimentation du Pacifique) on two uninhabited atolls of the Tuamotu group (Mururoa and Fangataufa), after the loss

   See Danielsson & Danielsson, Moruroa: Notre bombe coloniale: histoire de la colonisation nucléaire de la Polynésie Francaise (1993).

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of Algeria, where nuclear tests had previously been conducted. Mururoa is a coral ringed atoll located 750 miles from Tahiti. It covers an area of about six miles by eighteen miles. Fangataufa, the other atoll chosen for the tests measures five miles long and four miles wide. It is located twenty-six miles south of Mururoa and is the southermost atoll of the Tuamotu. Between 1966 and 1974, forty-four atmospheric nuclear tests were performed: thirty-nine in Mururoa and five in Fangataufa. The shift from atmospheric to underground tests in 1975 was a direct consequence of international pressure against the tests, including legal action by New Zealand at the International Court of Justice. Between 1975 and 1986, seventy-eight underground nuclear tests were performed despite continuous opposition by elected representatives of the French Polynesia territorial assembly as well as international campaigns against the tests which led to terrorist action by the French State, also known as the “Rainbow Warrior” Affair. In 1986, the ex-director of the French Secret Services (DGSE) declared that he was personally authorized by President François Mitterrand to sink the Greenpeace vessel Rainbow Warrior which was used to campaign against nuclear testing at Mururoa Atoll. In 1992, France agreed to observe a moratorium on its nuclear testing activities which was also followed by the U.S., Russia and the U.K. Yet, in June 1995, President Chirac decides to resume the French nuclear testing program, thus reactivating international protests. The French nuclear testing program was completed in 1998; the total yield of the French nuclear tests between 1966 and 1996 was approximately 13.5 Mt, a much smaller amount than the 170 Mt produced by the U.S. and the U.K. nuclear tests in the Pacific between 1946 and 1962. That same year, France was readmitted as an observer to the Pacific Forum and ratified the Rarotonga Nuclear Free Zone Treaty. All nuclear testing facilities were dismantled in 1998, with only thirty Légionnaires remaining on Mururoa Atoll to monitor radioactivity, monitor geological movements and prevent intrusion. The same year, France ratified the Nuclear Non-Proliferation Treaty. In 2005, for the first time, a French court granted financial compensation to an ex-soldier who developed a disease linked to his participation  South Pacific Nuclear Free Zone Treaty, Aug. 6, 1985, 1445 U.N.T.S. 177.   Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.S. 161.  



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in the French nuclear tests undertaken in Algeria. The same year, the newly elected and pro-independence President of French Polynesia, Oscar Temaru, created a Council to assess the impacts of nuclear testing in French Polynesia from 1966 to 1996. This Council is composed of representatives of the French Polynesia Government, representatives of the Territorial Assembly, members of the NGO Mururoa e Tatou and experts. These recent developments, coming after thirty years of official denial, indicate the “most politically favorable context ever” for the recognition of the impacts caused by nuclear testing upon human health and the environment. The extent to which it is possible to assess such impacts today constitutes the legacy of French nuclear testing in the Pacific. III.  Environmental Implications of the Testing In addition to instances of radioactive contamination resulting from the fall-out of atmospheric tests such as the ones recorded by the New Zealand National Radiation Laboratory in stations at Cook Islands, Niue, Samoa, Tonga, Fiji and Tuvalu in 1966, it is likely that the underground tests have also generated long-term leakage of radioactive isotopes into the marine environment. Underground nuclear tests have produced about forty-six shafts of 50 m to 150 m of diameter spread along the twenty-three km of coastline on Mururoa. At present, there is insufficient information to assess whether, and to what extent, the fractures caused in the volcanic rocks of the atolls as a result of the underground tests have increased the natural movement of water into and through the atoll structure and, with it, the rate of leaching radioisotopes into the ocean. The uncertainty pertaining to the migration rate of radioactive particles present in the shafts is reinforced by the absence of precise data concerning the depth at which underground tests were performed. This situation nonetheless raises an important question: will the geological structure of the atolls be able to contain such active and high level radioactive particles in the long-term?

   See B. Barrillot, Les Essais Nucléaires Francais 1960–1996: Conséquences sur l’Environnement et la Santé (Centre de Documentation et de Recherche sur la Paix et les Conflits, Lyon, France, 1996).

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A scientific group commissioned by the Australian Prime Minister’s Office estimated times for leakage of radioisotopes under different scenarios. It concluded that times for migration of fluids from the site of the test in the rocks to the sea (lagoon) could vary from approximately 750 years in the best case, to 20 to 50 years in the worst case. These figures represent the time needed for water migration to take place. The extent to which this water carries with it dissolved radioactive material depends on leach rate of the glass from nuclear testing, which is supposed to be very low. No experimental data, however, is publicly available for the rate of leaching of the glass from nuclear testing at Mururoa. What is certain is that the French authorities were aware of the geological impacts of underground testing, since it created cracks and triggered the collapse of the outer walls of the atolls, thus obliging the French authorities to shift the tests under the lagoons of Mururoa and Fangataufa. Solid radioactive wastes (SRAW), classified both as low level and high level, have been stocked in the higher part of shafts and then sealed with cement. This practice is not in accordance with French standards for nuclear waste disposal, which normally require such waste to be vitrified and buried at much greater depths within a stable geological structure. Open-air storage of radioactive waste was also a common practice on the north coast of Mururoa, which exposed the atoll to further contamination during the 1980 and 1981 cyclones, when debris was dispersed on land and in the lagoon. These wastes included approximately twenty kilograms of plutonium spilled during the socalled security tests in the late 1960s and then fixed on the ground with a layer of bitumen, which did not resist the cyclones. The extent of this open-air radioactive waste dump was 30,000 square meters. The question remains as to whether this open-air dump still exists today and, if not, how the wastes have been managed. Given the geological fragility of the atolls, risks of radioactive contamination into the ocean through leakage either from cracks resulting from multiple underground tests or from inappropriate storage of radioactive wastes are real, yet difficult to assess. The difficulty mostly lies with the defense seal that covers all military activities on the atolls,  Office of the Chief Scientist, Dept. of the Prime Minister and Cabinet, Canberra, The Impact of Nuclear Testing at Mururoa and Fangataufa: A Paper prepared for the South Pacific Environment Minister’s Meeting by a Scientific Advisory Group, Brisbane, Australia, Aug. 16–17, 1995. 



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in addition to the fact that access to all human health and environmental data collected during the testing period is restricted by the French military. This data includes: documents concerning accidents that occurred during the tests, health reports of military and civil personnel employed at the sites, the radiological state of the test sites, the management of the waste produced by the tests and the real costs of the nuclear program. IV.  Scientific Inspection Teams Before the 1998 International Atomic Energy Agency (IAEA) mission, the French government only authorized three independent inspections of Mururoa. These were: the 1982 Tazieff mission, the 1983 Atkinson mission and the 1987 Cousteau mission. The three missions were extremely short (three to five days); scientists were not allowed to visit the most contaminated areas and had to rely almost exclusively on data provided by the French military. The 1982 Tazieff mission was permitted to witness a nuclear test (of the smallest yield ever tested, with less than 1 kt), in order to check for any venting. However, the small yield of the device detonated prevented the mission from learning about the risks present during the normal test program. The 1983 Atkinson mission did not observe any tests and was not allowed to inspect any test sites or to collect biota or sediments from the lagoon. Measurements were restricted to soil testing near living quarters. The 1987 Cousteau mission collected samples of sediments, plankton and water from Mururoa, which did not reveal significant amounts of radioactive contamination, with the exception of radioactive iodine. The Cousteau mission produced an underwater film showing large cracks in the submerged portion of the atoll as a result of underground testing. However, the crew could not film below a depth of 50 m. Had they been able to film at a depth of 700 m or more, the minimum depth of the underground tests, the films would have revealed the true geological state of the atoll. In 1998, following a request by the French government, the IAEA sent a mission of experts to Mururoa in order to assess the radiological situation at the atolls of Murorua and Fangataufa. Experts were permitted to take measurements and samples to conduct tests for residual radioactive material in the terrestrial and marine environment. Analysis of the results is included in the IAEA report, which concludes that:

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– there will be no radiation health effects as a result of the residual radioactive material; – the expected radiation dose rates and modes of exposure are such that no effects on biota population groups could arise, although occasionally individual members of a species might be harmed, but not to the extent of endangering the whole species or creating imbalances between species; – no remedial action at Mururoa and Fangataufa is needed on radiological protection grounds, either now or in the future; – and no further environmental monitoring at Mururoa and Fangataufa is needed for purposes of radiological protection. The report is not, however, entirely optimistic. The IAEA report notes that, concerning the residual radioactive materials present in the atolls, several kilograms of plutonium resulting from four early atmospheric tests remain in the lagoon sediments of each atoll. Furthermore, leakage from underground test cavities has resulted in tritium concentrations in both lagoons which are ten times higher than in the open ocean. Perhaps because radioactive waste disposal was not considered part of the terms of reference for the study, the IAEA report is completely silent on that issue. Still, in August 1998, French Environment Minister Dominique Voynet called for an inquiry into the thirty years of nuclear testing in French Polynesia. She considered that the results of the IAEA study were incomplete and raised a number of questions. In 2005, the new government of French Polynesia set up a one-year, independent commission of experts to investigate the environmental and health impacts of nuclear testing and to formulate recommendations accordingly. The recommendations from the Commission call for the environmental rehabilitation of all contaminated sites, the establishment of an inventory of all radioactive wastes that were disposed of at sea, the setting up of a radiological laboratory, and a medical institute to follow up the health of local populations that were exposed to radiations.

   E. Gail de Planque, International Study of the Radiological Situation at the Atolls of Mururoa and Fangataufa, IAEA Bulletin, 40/4/1998. See also, National Atomic Energy Agency, Nuclear Tests in French Polynesia: Could Hazards Arise?, http://www.iaea .org/Publications/Booklets/mururoabook.html (last visited July 8, 2008).    Assemblée de la Polynésie Francaise, Commission d’Enquete sur les Conséquences des essais nuclaires, Les Polynésiens et les essais nucléaires, 2006, Papeete.



the legacy of french nuclear testing in the pacific 75 V.  Legal Implications

The legality of nuclear weapons and their testing under international law has been a matter of debate. A.  International Law Many states believe that the strategic benefits of nuclear weapons outweigh any potential adverse side effects and that the rules of military necessity and proportionality do not apply to render nuclear weapons or their use unlawful. Other states consider that these weapons violate fundamental principles of international environmental law, such as: Principle 21 of the Stockholm Declaration, whereby “States have a sovereign right to exploit their own resources and the responsibilities to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction,” and the precautionary principle, whereby the proponent of a dangerous activity has to establish that what is proposed to be done will not harm other States. The question of the legality of the use of nuclear weapons was put before the ICJ in two requests for Advisory Opinions submitted by the World Health Organization (the WHO) in 1993 and the U.N. General Assembly in 1994. The ICJ declined to hear the request submitted by the WHO, deciding that the WHO was acting outside its legal capacity in submitting the request for the Advisory Opinion. In its decision on the question submitted by the U.N. General Assembly, rendered in 1996, the Court held that nuclear weapons were not illegal per se, but that their use must be in accordance with the rules of law relating to the use of force and international humanitarian law. In 1974, Australia and New Zealand sought a declaration from the ICJ that France’s continuing atmospheric tests in the South Pacific were contrary to international law. The case was never determined on its merits, because the Court decided that the issue was moot when France announced its intention to move its tests underground. In 1995, New Zealand attempted to reopen the case and to obtain an injunction restraining underground tests, but this was rejected by the ICJ on the basis that the issue had already been dealt with in 1974.

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B.  Regional Treaty Responses There have been several regional treaties attempting to ban or restrict the use of nuclear weapons within regional zones. 1.  The 1985 Rarotonga Nuclear Free Zone Treaty The 1985 Rarotonga Nuclear Free Zone Treaty aims to ban nuclear testing within its area of application, which includes French Polynesia and other territories. France ratified this treaty in 1996. However, for a treaty that was framed with French testing in mind, the Rarotonga Treaty provides surprisingly little regulatory control over test facility dismantlement and radioactive waste management. The treaty does not include any provision on IAEA—verified dismantlement of nuclear weapons facilities that might be binding on France. Further, the treaty excludes land-based waste disposal from its provisions, thus making the treaty irrelevant to the clean-up of the Murorua and Fangataufa test sites. It has been noted that “[t]he failure to include land-based radioactive waste dumping may be directly attributed to Australia, which chaired the treaty negotiations and explicitly opposed controls over land-based dumping, presumably because of the wish to retain its own options for dumping associated with Australian uranium mining and nuclear industry”. 2.  The SPREP Convention The Convention for the Protection of the Natural Resources and Environment of the South Pacific (the SPREP Convention) contains a general provision on the testing of nuclear devices that requires Parties to take all appropriate measures to prevent, reduce and control pollution in the Convention Area which might result from the testing of nuclear devices.10 The area of application of the Convention includes French Polynesia.11 The SPREP Convention does not include inland waters, which     M. Hamel-Green, “Nuclear Denouement in the Pacific: French Testing, the Rarotonga Treaty and NFIP Movement”, in S. Alomes and M. Provis, (eds.), French Worlds, Pacific Worlds: French Nuclear Testing in Australia’s Backyard (1998), p. 17.     Convention for the Protection of Natural Resources and Environment in the South Pacific Region and Related Protocols, Nov. 24, 1986, 26 I.L.M. 38. 10   Ibid., at art. 12. 11   Ibid., at art. 2.



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means that the Mururoa lagoon is not covered. If, however, radioactive leakage into the surrounding seas was demonstrated, the Convention could provide some leverage on France to take adequate protective measures. 3.  The Waigani Convention The 1995 Waigani Convention on Hazardous Wastes covers both land and sea territories and also includes French Polynesia in its area of application.12 Yet, radioactive wastes are excluded from its most important provisions, such as minimization of waste generation, submission of reports over waste generation and movements, availability of adequate disposal facilities and cooperation with SPREP on waste management programs. The failure of the Waigani Convention to include radioactive wastes in its key provisions may be attributed to negotiating countries putting their nuclear power and uranium mining interests above regional interests. This may have been the case of Australia, which was chairing the South Pacific Forum in Waigani, where the Convention was signed. VI.  Conclusion and Recommendations Environmental and health damages either already caused by the tests or likely to be caused in the coming decades or centuries raise important issues of financial compensation and environmental rehabilitation. As noted earlier, existing regulatory regimes in the region have a limited capacity to address such issues and would need to be amended, the Waigani Convention in particular. Colonial authorities permitted thirty years of testing without accountability to the indigenous people. However, the political context of French Polynesia has evolved since pro-independence leader Oscar Temaru came into power in 2005. In this changing context, it is unlikely that France will be able to circumvent the necessary compensation, monitoring and clean-up programs to come. I therefore offer several recommendations to facilitate this process.

  Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (Waigani Convention), Sept. 17, 1995, 2161 U.N.T.S. 93. 12

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First, a waste management program will be needed. In several cases, when the French had finished testing they either put the resulting nuclear waste into the test sites or left it exposed on the ground. Since the atolls have become de facto permanent nuclear waste storage sites, these wastes need to be managed in accordance with international and national standards applicable to comparable nuclear waste storage sites of the civilian industry, which is not the case at present. Secondly, an environmental monitoring program should be present. Defining and understanding the structural and hydrological integrity of the atolls is critical to predicting timing and scale of any leakage of radioactivity and to assess the structural damage from the underground tests. For this reason alone, it seems logical to oppose the IAEA recommendation against the need for further environmental monitoring at Mururoa and Fangataufa. It is argued here that the need for environmental impact assessment and monitoring is based on the lack of published data which would permit independent analysis of release rates of radioactivity on the atolls. In addition, long-term monitoring of currents for the atolls and for the region is needed. Finally, scientists need access to the baseline data currently held secret by the French government. Access to the data collected by the French monitoring services is critical to any accurate and independent assessment of the environmental impacts of nuclear testing given that these services have gathered baseline information on the state of the environment, the structural integrity of the atoll and the levels of radioactivity in the environment. These are: the Service Mixte de Sécurité Radiologique, the Service Mixte de Contrôle Biologique, laboratories of the Direction des Centres d’Expérimentations Nucléaires (DIRCEN), and the Laboratoire d’Etude et de Surveillance de l’Environnement (LESE).

CHAPTER SIX

Hazardous Substances and the Baltic Sea Malgosia Fitzmaurice I.  Introduction The input of hazardous substances into the Baltic Sea has, unfortunately, quite a long history. The Helsinki Commission for the Protection of the Baltic Sea Environment (HELCOM) has been researching and analysing sources of pollution in the Baltic Sea for thirty years. Combating pollution in a marine area such as the Baltic Sea involves both eradicating and limiting input of hazardous substances both from the past and the present. But stopping the further disposal of hazardous substances in the sea, in the opinion of many, has the higher priority. The substances in the Baltic do not include nuclear materials to any significant degree. Our intention is that in examining the issue of a region addressing hazardous substances generally, we might gain insights into the challenges ahead in addressing ocean areas with dumped nuclear wastes. Since the early 1800s, excessive inputs of nutrients, originating mostly from agriculture and forestry runoff, have changed the Baltic Sea from an oligotrophic clean-water marine environment into an eutrophic one. Nitrogen inputs have more than doubled, and phosphorus inputs are on average over three times higher than a century ago. The loads of hazardous substances have been reduced considerably over past twenty to thirty years; their concentrations, however, remain up to twenty times higher than in the North Atlantic. Eradication of some of hazardous substances has been successful. For example, there is a noticeable decrease

   HELCOM News, Special Issue: The Health of the Baltic Sea, April 2005, http:// helcom.navigo.fi/stc/files/Publications/Newsletters/newsletter_04_2005_web.pdf (last visited August 2, 2008); Interview with Dr Anne-Christine Brusendorff, Executive Secretary, HELCOM.    Input of these substances into the Baltic Sea has resulted in eutrophication concern, i.e. alga blooms are very common, which results in oxygen depletion, which leads to internal nutrient loading. These conditions affect fish stocks and biodiversity. HELCOM News, supra note 1, at p. 3.

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in concentrations of lead in the herring population. In certain areas of the Baltic Sea, some fish are still unsafe to consume as dioxin levels exceed the new European Union food safety limits. Levels of several organic pollutants in marine ecosystem, which had been decreasing since the early 1980s, levelled off in the mid 1990s. Generally, emissions of heavy metals from the HELCOM member States decreased considerably during the period from 1992 to 2002. The levels of Tributyltin (TBT) are of concern, as they have potential biological effects. The serious environmental problems in the Baltic Sea are closely related to political and economic situations at the local level. This comparatively small marine area has been the subject of many political changes, even as to the number of coastal States. Until the 1990s, there was a noticeable lack of transparency in the disclosure and sharing of information between the HELCOM member States. Moreover, the rate of implementation of HELCOM recommendations was very low. At present, Baltic Sea coastal States cooperate and seek transparency both between themselves and in relations to their citizens. These States are also more ecologically minded. For example, the reductions in heavy metal emissions are a result of the common use of lead-free fuels. In addition, there is a wider use of cleaner production technologies, which in particular followed the industrial restructuring, which took place in the Baltic Republics, Poland and Russia in the early 1990s. It is also significant that, with the exception of Russia, all of the coastal Baltic States are members of the European Union and therefore share the same European environmental standards. There are also numerous Non-Governmental Organisations, which participate very actively in the protection of the Baltic Sea and cooperate with the HELCOM.   Cadmium by 46%, mercury by 62% and lead by 61%. HELCOM News, supra note 1, at p. 12.    The parties of the 1974 (the first) Helsinki Convention were the following States: Federal Republic of Germany, German Democratic Republic, Poland, Soviet Union, Denmark, Finland and Sweden. The parties to the 1992 Helsinki Convention are: Poland, Germany, Finland, Sweden, Russia, Latvia, Lithuania, Estonia and Denmark.    See HELCOM News, supra note 1, at p. 12.    There are a large number of such organizations, e.g., Baltic Development Forum, Baltic Sea Chambers of Commerce Association, Baltic Sea Forum-Pro Baltica, Baltic Sea NGO Forum and Baltic Sea Trade Union Network. Particularly important is the Baltic Sea NGO Forum, which holds annual forums for Baltic Sea NGOs. It is a meeting point for various NGOs from the Baltic States. The aim of the forum is to strengthen the role 



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There are, however, still a large number of unresolved problems. One of the main issues is the lack of a proper shared database and compilation of data by member States of HELCOM. For example, the full effects of endocrine disruptive substances and new contaminants (flame retardants) are impossible to assess due to the lack of monitoring data. Efficient monitoring system is a part of capacity building, which in turn depends on the availability of financial resources. In conclusion, the Baltic Sea is a marine region in transition, in which many problems have been resolved and many problems still remain. II.  The Geographical Conditions of the Baltic Sea The Baltic Sea covers 415,266 km2, and its catchment area covers 1.7 million km2, an area almost four times larger than the sea itself. The Baltic Sea, more then other semi enclosed seas, is a very sensitive marine environment. The geographical, climatological and oceanographic conditions of the Baltic Sea are unique, and pollution of its environment has grave consequences. The Baltic Sea is one the largest bodies of brackish water in the world. The brackish water is a composition of water from the North Sea and fresh water from rainfall and the rivers. The Baltic Sea water is characterised by different levels of salinity, with the level quite low in some areas. Approximately eighty-five million people live in its catchment area. Twenty-six percent live in larger metropolitan areas, forty-five percent in smaller urban areas and twenty-six percent in rural areas. Almost fifteen million people live within ten kilometres of the coast. In Germany, Denmark and Poland sixty to seventy percent of the Baltic catchment area consists of farmland, while in Finland, Russia, Sweden and Estonia sixty-five to ninety percent of the area consists of lakes, wetlands and forests. The Baltic Sea is connected with the North Sea only by narrow straits: the Belts and the Sound. The exchange of waters in the Baltic Sea takes between twenty-five and thirty years. Thus, the same water with all the organic and man-made substances of civil society by providing NGOs with the opportunity to exchange information and ideas, develop new networks and carry out the dialogue with the public authorities. http://www.cbss.st/partners/ngoforum/ (last visited July 26, 2008).    HELCOM News, supra note 1, at p. 13.    Information in the section, drawn inter alia, from the HELCOM website: http:// www.helcom.fi/environment2/nature/en_GB/nature/_print/ (last visited July 26, 2008).

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remains in the Baltic for a long time. To complicate matters further, the Baltic is divided into several sub-basins, characterised by different geographical conditions. The Baltic is a shallow sea, with an average depth of fifty-three meters. The deepest waters are in the Landsort Deep, 459 meters. The Baltic Sea contains 21,547 km³ of water, and every year rivers bring about 2% of this volume of water into the sea as runoff. The Baltic Sea, due to its character, has a rather limited biodiversity in comparison to other marine areas, partly due the low salinity levels in some parts. Legally, the Baltic Sea belongs to the category of so-called semienclosed seas. The 1982 Law of the Sea Convention includes the legal regime of such seas in Part IX, Articles 122 (Definition) and 123 (Cooperation between States).10 The requirement of co-operation between States is one of the uncontested principles of contemporary international environmental law. There are numerous examples of conventions, which incorporate this principle, such as the 1997 United Nations Convention on Non-Navigational Uses of International Watercourses.11 Such

    Convention on the Law of the Sea, Dec.10, 1982, U.N. Doc. A/CONF.62/122, 1833 U.N.T.S. 3 [hereinafter ITLOS Convention]. Article 122 provides: For the purposes of this Convention: ‘enclosed or semi-enclosed sea’ means a gulf, a basin or sea surrounded by two or more States and connected to another sea or ocean by a narrow outlet or consisting entirely or primarily of the territorial sea or exclusive economic zone of tow or more coastal States. 10   See ibid., art. 123: States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. 11   See ibid., art. 8: General Obligation to Cooperate: 1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse. 2. In determining the manner of such co-operation, watercourse States may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate co-operation on relevant measures and proce-



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co-operation is especially important in the case of enclosed and semi enclosed seas, as misconduct of any State has great influence on the well being of other States.12 III.  Hazardous Substances in the Baltic Sea Hazardous substances are toxic, persistent and liable to bio accumulate in marine webs up to the levels which may be toxic to the organisms themselves, be toxic to their predators or affect the immune or hormonal systems.13 There is a wide range of hazardous substances in the Baltic, to mention only some groups: – polychlorinated biphenyls (PCBs), – dichlorodiphenyl trichloroethane (DDT), – Nonylephenolethoxylates (NPEs), – the short chained chlorinated paraffins (SSCPs), – heavy metals (such as mercury, cadmium, lead and copper), – dioxins and brominated flame retardants (PBDEs). Hazardous substances originate from all stages of the product process: the raw material in the production processes, the use of products and the handling of products as waste. In addition, they are emitted from point sources such as land-based industrial installations and mines and from diffuse sources. Contaminants also come from anti-fouling agents used on ships and from shipping operations themselves. The main pathways of hazardous substances emitted to the marine environment are: industrial wastewater, municipal wastewater (from direct sources or transported through rivers) and the atmosphere, in particular in relation to heavy metals. Although a great deal has been done to reduce the levels of these substances in the Baltic Sea over the period of twenty-three years,

dures in the light of experience gained through co-operation in existing joint mechanisms and commissions in various regions. 12   Malgosia Fitzmaurice, The International Legal Problems of the Environmental Protection of the Baltic Sea, (Martinus Nijhoff Publishers, 1992), pp. 9–16. 13   http://www.helcom.fi/environment/assessment/en_GB/hazardoussubstances/ (last visited July 26, 2008); see also http://www.helcom.fi/environment2/hazsubs/en_GB/ front/ (last visited July 26, 2008).

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problems still persist. According to the HELCOM, there is still insufficient comprehensive knowledge about the impact of the most widely used chemicals and their “cocktail like combination” on human health and the environment. Organic pollutants are not fully researched or even identified at present. Another problem, not fully understood or explored, is that the degradation and transformation of these substances in the marine environment may impact their structure and reactive properties. HELCOM selected forty-two hazardous substances for immediate priority action. These substances are pesticides and biocides, such as lindane and pentacholorophenol, and metals and metal compounds, such as mercury, lead cadmium and industrial substances. The main sources of these metals are riverine inputs and direct discharges. During the period from 1994 to 2003 riverine heavy metal loads— cadmium and lead—decreased for the majority of the Baltic Sea countries. In 2002, the total annual emissions by the HELCOM countries amounted to 120 tons of cadmium, 65 tons of mercury and 3320 tons of lead.14 The remaining load enters the Sea from the atmosphere. The total annual atmospheric deposition rates for heavy metals entering the whole of the Baltic Sea are: 7 tons of cadmium, 3 tons of mercury and about 149 tons of lead.15 The highest levels of heavy metals depositions are in the Belt Sea sub-basin. Emission sources, such as industries, energy production and waste incineration of heavy metals amounted to around forty and fifty percent of total atmospheric depositions into the Baltic Sea in 2002. Natural resources and distant sources from outside the Baltic Sea catchment area also contributed. The most significant sources of cadmium are Russia, Poland and Germany; the most significant sources of mercury are Poland, Denmark and Germany. Transboundary air pollution also contributes to loads of heavy metals entering the Baltic Sea, in particular from the Czech Republic and Ukraine. The inputs of heavy metals from this source amounts to about five to fifteen percent for mercury, cadmium and lead. The total riverine loads of hazardous substances entering the Baltic Sea, including the direct discharges from costal areas amounted to 7.3 tons of mercury, 285.8 tons of lead and 8.1 tons of cadmium.

  HELCOM News, supra note 1, at p. 11.   HELCOM News, supra note 1, at p. 11.

14 15



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The riverine inputs of the heavy metals, lead, cadmium and copper are highest in the Gulf of Finland, while mercury inputs are the highest in the Baltic proper. A few large rivers are the source of very significant proportions of the local riverine heavy metal loads.16 Significant transboudary pollution loads of heavy metals originate from Belarus, the Czech Republic and Ukraine. The total input of heavy metals in the Baltic is, however, not exactly known due to incomplete data from the some countries, shortcomings in national monitoring programs, the lack of proper laboratory equipment and the fact that the methods used to estimate the record of loads are not fully harmonised. It has to be also observed that the data concerning input from rivers and coastal areas is even more haphazard.17 However, the emissions from heavy metals decreased during the period 1990 to 2002 by forty-six percent for cadmium, sixty-two percent for mercury and sixty-one percent for lead. This development resulted from the increased use of lead-free fuels, use of cleaner production processes and the economic decline and the restructuring of Poland, Latvia, Lithuania, Estonia and Russia in early 1990s. It may be noted that the riverine input has also decreased in several Baltic States. It is widely thought that the fifty percent reduction target has been met for the forty-six substances targeted by the HELCOM.18 Table 1.  Heavy Metals in the North Atlantic and Baltic Sea Metal

North Atlantic (ng/kg)

Baltic Sea (ng/kg)

Mercury Cadmium Lead Copper Zinc

0.1–0.3    2–6    5–9   65–85   10–75

   5–6  12–16  12–20 500–700 600–1000

Source: HELCOM, http://www.helcom.fi/environment2/hazsubs/en_GB/state (last visited July 26, 2008).

  HELCOM News, supra note 1, at p. 12.   HELCOM News, Newsletter, March 2005, www.helcom.fi (last visited July 26, 2008). 18   HELCOM News, supra note 1, at p. 12. 16

17

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On the other hand, concentrations of heavy metals and organic pollutants in the Baltic Sea are up to twenty times higher than in the Northern Atlantic.19 Although the concentration of lead and PCBs in the herring population has decreased, there is an increase in the concentration of cadmium, copper and zinc.20 Dioxin levels in fish are still too high and exceed the E.U. food safety limits in certain areas, especially further north. The concentrations of the man-made radionuclide Cs137 in herring and flounder have been detected.21 On the other hand, concentrations of lindane in water and biota have decreased. In 2001, tests in marine snails indicated relatively high concentrations of TBT in the Danish estuaries, the Kattegat, the Sound and the Belts Sea in the Western Baltic Sea. Reproductive disorders induced by TBT are consequently spread in the Danish straits and coastal areas. As to the other endocrine disrupting substances, TBT concentration is so high that they have potential biological effects. Also, there are new contaminants, such as flame-retardants, whose effects are not fully known due the lack of monitoring data.22 The 1992 Helsinki Convention bans all dumping in the Baltic Sea, with the exception of dredging or when the safety of human life, an aircraft or a ship is threatened by complete destruction or total loss; when the dumping appears to be the only way of averting the threat; and there is every probability that the damage resulting from such a dumping would be less than would otherwise occur.23 Thus, dumping of hazardous substance in the Baltic Sea is generally prohibited. The Baltic Sea is a special area under the 73/78 MARPOL Convention on Prevention of Pollution from Ships and, therefore, no discharges from ships are permitted and ships are obliged to use the port facilities.24 Likewise, under the regime of the 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area all dump  See Table 1.   Temporal Trends in Contaminants in Herring the Baltic Sea in the Period 1980– 2002, http://www.helcom.fi./environment/indicators2004/herring/en_GB/herring (last visited July 26, 2008). 21   Concentrations of the Artificial Radionuclide Cessium137 in the Baltic Sea Fish, http://www.helcom.fi/environment2/ifs/archive/ifs2002/en_GB/Cs-137fish (last visited July 26, 2008) [hereinafter Helcom.fi I]. 22   HELCOM News, supra note 1, at p. 13. 23   Convention on the Protection of the Marine Environment of the Baltic Sea Area, April 9, 1992, 2099 U.N.T.S. 197, art. 11 §§ 2, 4, Annex VII, Annex V, Regulation 4 [hereinafter 1992 Helsinki Convention]. 24  1992 Helsinki Convention, supra note 23, art. 8, Annex IV. 19 20



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ing is prohibited.25 Like the 1992 Helsinki Convention, there were only two exceptions on the total ban of dumping: dumping of dredged spoils and protection of human life and vessels or aircraft at sea. The most significant dumped material in the Baltic Sea is the chemical weapons disposed of after the end of the Second World War. The large amounts of chemical munitions were dumped after the Second World War. For the whole of the Baltic Sea area, it amounts to about 40,000 tons. It is estimated that these chemical munitions contained some 13,000 tons of chemical warfare agents. The chemical warfare agents break down at a different rate. Some break down into less toxic, watersoluble substances and some retain high toxicity, such as mustard gas. However, they do not occur in water in high concentrations, therefore they do not pose a great threat to the marine environment or to coastal areas. 2003 was the year of the highest increase of both of the numbers of incidents and the total weight of the chemical munitions caught in the Baltic since the mid 1990s. There were fewer chemical munitions found by fishermen in 2004, four incidents as compared to twenty-five in 2003. Denmark, as a lead country in this area, reported that most of the netted chemical munitions were completely corroded and consisted of lumps of mustard gas and sneeze gas (the area of east Bornholm). Every year the HELCOM drafts charts and makes guidelines as to the position of such weapons in the Baltic Sea. These are translated into the languages of the Parties to the Helsinki Convention, and the governments are obliged to make them available to their fishermen. Generally, present policy in relation to chemical weapons dumped in the deep waters of the Baltic Sea during the Second World War in 1940s is that they are not seen as a serious threat to marine ecosystems. According to current research, any attempt to recover these munitions would not be beneficial for the environment and may result in causing harm.26 It is assumed that the attempted recovery of munitions could be more harmful than leaving them in the depths of the Baltic. Nearly all the Baltic Sea top predators, such as the sea mammals and several bird species suffer from pollution and seals are still threatened.

  Convention on the Protection of the Marine Environment of the Baltic Sea Area, March 22, 1974, 1507 U.N.T.S. 167, art. 9, Annex V [hereinafter 1974 Helsinki Convention]. 26   HELCOM News, supra note 1, at p. 13. 25

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Concentration levels of the artificial radionuclide Cs137 in the Baltic is governed by the HELCOM MORS Project Group. Overall levels of radioactivity in the sea are decreasing after the 1986 Chernobyl disaster, which resulted in a significant fall out in this area-the total input of Cs137 was estimated at 4700 TBq. Radioactivity is now slowly moving towards the North Sea, however, not in a very high concentration. Minor amounts of radioactivity from Sellafield have also been observed (which significantly decreased) and locally detected discharges from nuclear plants and from nuclear weapons atmospheric testing in 1950s and 1960s. The major radionuclide from discharges from nuclear power plants and research reactors in the Baltic region is H3, which amounted to 2400 TBq; the other beta-gamma emitting radionuclides amounted to about 24 TBq. The total collective dose of man-made activity in the Baltic Sea is estimated at 2600 manSv.27 IV.  The Legal Framework28 The managing and combating of the pollution of the Baltic Sea from hazardous substances has been one of HELCOM’s major interests from its inception under both the 1974 and 1992 Helsinki Conventions for the Protection of the Environment of the Baltic Sea Area.29 In 2002, The HELCOM concluded its first basic project on hazardous substances.30   Helcom.fi I, supra note 21.   See generally, an excellent essay of H. Selin & S.D. VanDeveer, “Baltic Sea Hazardous Substances Management: Results and Challenges,” 33/3 AMBIO 153 (2004). 29   The 1974 Helsinki Convention entered into force on 3 May 1980; the 1992 Helsinki entered into force on 17 January 2000. 30   The HELCOM consists of the following organs: Contracting Parties—Denmark, Estonia, European Union, Finland, Latvia, Lithuania, Poland, Russia and Sweden; Heads of Delegations; and five main Working Groups, which implement policies and strategies and propose issues for discussions at the meetings of the Delegations, where decisions are adopted. The working groups are: The Monitoring and Assessment Group (HELCOM MONAS); the Land-based Pollution Group (HELCOM LAND); the Nature Protection and Biodiversity Group (HELCOM HABITAT); the Maritime Group (HELCOM MARITIME); and the Response Group (HELCOM RESPONSE). There are also Projects, seminars, symposia and informal expert meetings. One of tasks of the HELCOM is to adopt Recommendations. There are at present 103 valid HELCOM Recommendations dealing with various aspects of the Helsinki Convention, one of them being pollution from hazardous substances. The 1992 Helsinki Convention, supra note 23, arts. 19–23. On the compliance with HELCOM Recommendation see: Helsinki Commission HELCOM 24/2003, Baltic Marine Environment Protection Commission, 24th Meeting, Bremen, Germany, June 25, 2003, http://www.helcom.fi/stc/files/Recommendations/Compliance_with_recs.pdf. 27 28



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The 1974 Helsinki Convention included an obligation on the Parties to “counteract” the airborne and waterborne introduction of DDT and its derivatives DDE and DDD, PCBs and PCTs (polychlorinated terphenyls) into the Baltic Sea. States were also under the duty to “strictly limit” emissions of a number of hazardous substances, such as mercury, cadmium, arsenic, lead chromium, copper, nickel, zinc, polycyclic aromatic hydrocarbons (PAHs) and persistent pesticides.31 In 1988, the Ministerial Declaration set as one of its targets the reduction of the total discharges of hazardous substances into the Baltic Sea.32 The Ministers for the Environment, signatories of the Declaration, expressed “their concern for the present state of the marine environment of the Baltic Sea Area” and declared further reduction of discharges from point sources33 and non-point sources. Particular emphasis was placed on the reduction of the input of substances most harmful to the ecosystem of the Baltic, such as heavy metals and toxic or persistent organic substances and nutrients, “for example in the order of 50 per cent of the total discharges of each of them, as soon as possible but not later than 1995.” This ministerial Declaration belongs to the type of instruments of a so-called ‘soft law’ character. There is a multitude of publications relating to the character, usefulness and legal effects (if any) of such a legal tool.34 International environmental law is one of the areas of law where such instrument has found a wide use.35 The border between soft and hard law sometimes may appear to be blurred, especially when the wording makes the impression of clearly defined obligations (as in the case of the 1988 Ministerial Declaration), thus giving an 31   There was a cluster of recommendations passed, which dealt with these matters. Recommendations from 1982, 1983 and 1995 referred to a gradual elimination of DDT, PCBs and PCTs. Recommendations in 1985 and 1988 dealt with the reduction of emissions and discharges of heavy metals, mercury, lead and cadmium. 32   The Ministers Responsible for the Environmental Protection in the Baltic Sea States, Declaration on the Protection of the Marine Environment of the Baltic Sea Area, February 15, 1988 http://www.helcom.fi/stc/files/MinisterialDeclarations/MinDecl1988.pdf. 33   Such as industrial installations and urban wastewater treatment plants, of toxic and persistent substances, nutrients, heavy metals, and hydrocarbons by construction and operation of installations and equipment in conformity with the best available technology. 34   See e.g., one of the newer books on the subject, Dinah Shelton (ed.), Commitment and Compliance (Oxford University Press, 2000). 35   This Declaration was very similar to the host of Declarations adopted in relation to the North Sea, such as the 1984 Bremen Declaration, 1987 London Declaration and 1990 The Hague Declaration.

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appearance of “hard” law instruments, legally binding on States. Closer scrutiny, however, reveals that goals were not precisely specified and spelled out. The language of such instruments, as exemplified by the Ministerial Declaration refers to “intensification of efforts;” “taking appropriate measures;” “developing methodology;” “respect to relevant recommendations,” etc.36 The Parties to the Helsinki Convention in practice adopted very different approaches towards this Declaration at the domestic level. Some of them followed the procedure usually applied to binding instruments. In the former Federal Republic of Germany (FRG), the Declaration was transformed into the municipal legal order by the “Bekanntmachtung” of the Minister of the Environment. Moreover, in 1988, the Minister presented a ten-point catalogue for strengthening the efforts to protect the Baltic Sea in response to this Declaration. The plan presented detailed requirements for reducing nutrient inputs from sewage treatment plants. In relation to the reduction of hazardous substances, the Minister announced state-of-art limitations in industrial waste. In 1989, the Parliament of the FRG approved this plan. In Sweden, Denmark and Finland, the Declaration was included in a long-term Action Plan on the Protection of the Environment, and approved by their Parliaments as well. In the former U.S.S.R., a program based on in this Declaration was set up for the Baltic Sea region for the period up to 1996, which took into account about five hundred of the most significant sources of pollution of the sea and provided expenditures in amount up to 1.5 billion roubles. Furthermore, in order to implement the Declaration, cleaning plants for municipal sewage were provided in the main cities in the period from 1992 to 1993. In Poland, however, no action of any kind—ministerial or parliamentary—was taken. The Declaration was published in official gazettes in the FRG, Sweden and Finland, but not by any news agency headquartered in the (former) Communist Baltic States. Paradoxically, notwithstanding, the assimilation of this Declaration in several domestic legal orders, it was considered to have a political but not legally binding character

36   Christine Chinkin, “Normative Development in the International Legal System,” in Dinah Shelton (ed.), Commitment and Compliance (Oxford University Press, 2000) pp. 21–42.



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in the event of non-compliance with its goals, which proved to be the case in some countries.37 The 1988 Ministerial Declaration is a good example of the confusion surrounding ‘soft law.’ At the time of the adoption of the Ministerial Declaration, however, a ‘soft law’ instrument was more acceptable to all Baltic States because of the political tensions in this region. A ‘hard law’ convention could have been difficult to agree upon. In 1992, however, after the collapse of the communist regime, when the negotiating of a binding instrument became less contentious, the Helsinki Convention was signed. Therefore, a ‘soft law’ instrument proved to be beneficial for the transitional development of the effort to pollution in the Baltic Sea.38 In 1991, forty-six hazardous substances were listed for the fifty percent reduction, and lindane was added. The fifty percent planned reduction was, however, not fully successful.39 In 1996, the Council of the Baltic Sea States (CBSS) adopted the Kalmar Communiqué with the objective of further reduction of emissions, discharges and losses of hazardous substances, with the final target in 2020 of a concentration of substances naturally occurring in the environment in the environment close to background values and almost zero for synthetic substances.40 In the meantime, the targets of the fifty percent reduction set by the 1988 Declaration, not achieved fully, were continued by the Parties to the Helsinki Convention. In 1988, the HELCOM issued detailed emission reduction targets to be reached by 2005.41 The 1992 Helsinki Convention defines hazardous substances as “any harmful substance which due to its intrinsic properties is persistent, toxic or liable to bio-accumulate.”42 Also relevant is the definition of harmful substances as: “any substance, which, if introduced to the sea, is liable to cause pollution.”43 Hazardous substances form a particular kind of harmful substances. The Convention’s general provisions concerning 37   As it was stated to the author of this essay during interviews with several officials of environmental ministries in the Baltic coastal States, who wished to remain anonymous. 38  On usefulness of such instruments, see Dinah Shelton, “Law, Non-Law and the Problem of Soft law,” in Dinah Shelton (ed.), Commitment and Compliance (Oxford University Press, 2000) pp. 12–13. 39   Selin, supra note 28, at p. 154. 40  1966 CBSS 5th Ministerial Session, July 2–3, 1996, http://www.cbss.st/. 41   Selin, supra note 28, at p. 154. 42   The 1992 Helsinki Convention, supra note 23, art. 2 § 8. 43   The 1992 Helsinki Convention, supra note 23, art. 2 § 7.

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fundamental principles and obligations have bearing on the management of hazardous substances.44 There are also two Annexes to the Convention which are of relevance: Annex I—Harmful Substances—and Annex II—Criteria for the use of Best Environmental Practice (BEP) and Best Available Technology (BAT). Annex II identifies and evaluates substances in accordance with their intrinsic properties: persistency; toxicity or other noxious properties; tendency to bio-accumulate; and characteristics liable to cause pollution, which are not necessarily of equal importance for the identification and evaluation of a particular substance or group of substances.45 Annex I enumerates the priority groups of harmful sub-

  The 1992 Helsinki Convention, supra note 23, art. 3: Fundamental principles and obligations: 1. The Contracting Parties shall individually or jointly take all appropriate legislative, administrative or other relevant measures to prevent and eliminate pollution in order to promote the ecological restoration of the Baltic Sea Area and the preservation of its ecological balance. 2. The Contracting Parties shall apply the precautionary principle i.e., to take preventive measures when there is a reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create hazards to human health, harm to living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea even when there is no conclusive evidence of a causal relationship between inputs and their alleged effects. 3. In order to prevent and eliminate pollution of the Baltic Sea Area the Contracting Parties shall promote the use of the Best Environmental Practice and Best Available Technology. If the reduction of inputs, resulting from the use of the Best Environmental Practice and Best Available Technology. As described in Annex II, does not lead to environmentally acceptable results, additional measures shall be applied. 4. The Contracting Parties shall apply the pollute- pays principle. 5. The Contracting Parties shall ensure that the measurements and calculations of emissions from point sources to water and air of inputs from diffuse sources are carried out in a scientifically appropriate manner in order to assess the state of the marine environment of the Baltic Sea Area and ascertain the implementation of this Convention. 6. The Contracting Parties shall use their best endeavours to ensure that the implementation of the Convention does not cause transboundary pollution in areas outside the Baltic Sea Area. Furthermore, the relevant measures shall not lead either to unacceptable harmful or increasing waste disposal, or to increased risks to human health. 45   Such as: the ration between observed concentrations and concentrations having no observe effect; anthropogenically caused risk of eutrophication; transboundary or long-range significance; risk of undesirable changes in the marine ecosystem and irreversibility or durability of effects; radioactivity; serious interference with harvesting of sea-foods or with other legitimate uses of the sea; distribution pattern (i.e. quantities involved, use pattern and liability to reach the marine environment); and 44



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stances.46 Part 2 of Annex I lists hazardous substances, which the parties to the Convention are obliged to prohibit totally or partially.47 Annex II includes the criteria for the BEP and the BAT. Both the BEP and the BAT are subject to a general rule that their contents will change with time in the light of technological advances and economic and social factors, as well as changes in scientific knowledge and understanding.48 The Annex explains the meaning and the contents of these notions. The BEP is “taken to mean the application of the most appropriate combination of measures [which] should be considered.” The Annex contains “the . . . graduated range of measures [which will] be considered” in individual cases: – provision of information and education to the public and to users about the environmental consequences; – the use and the disposal of certain substances; – the development of the Codes of Good Environmental Practice relating to particular projects, mandatory labelling, availability collection

proven carcinogenic, teratogenic or mutagenic properties in and though the marine environment. 46   Heavy metals and their compounds; organohalogen compounds; organic compounds of phosphorous and tin; pesticides such as fungicides, herbicides, insecticides, slimicides and chemicals used for the preservation of wood, timber, wood pulp, cellulose, paper, hides and textiles; oils and hydrocarbons of petroleum origin; other organic compounds especially harmful to the marine environment; nitrogen and phosphorus compounds; radioactive substances, including wastes; persistent materials which may float, remain in suspension or sink; and substances which may cause serious effects on taste and/or smell of products for human consumption from the sea, or effects on taste, smell, colour, transparency or other characteristics of the water. 47   Substances banned for all final uses, except for drugs: DDT and its derivates DDE and DDD (2.1). Substances banned for all uses, except for existing closed system equipment until the end of service life or for research, development and analytical purposes: PCBs (polychlorinated biphenyls) and PCTs (polychlorinated terphenyls) (2.2); Substances banned for certain applications: organotin compounds for antifouling paints for pleasure aircraft under 25 m and fish net cages; pesticides—the general rule is that the Parties, in order to free the Baltic Sea from hazardous substances, “shall endeavour to minimise and, whenever possible, to ban the use of the following substances as pesticides in the Baltic Sea Area and its catchment area.” These substances are as follows: acrylonitrile, aldrin, cadmium compounds, chlordane, chlordecone, chlordimeform, chloroform, 1.2-dibromoethane, dieldrin, endrin, fluoroacetic acid and derivatives, heptachlor, isobenzane, isodrin, kelevan, lead compounds, mercury compounds, morfamaquat, nitrophen pentachlorophenol, polychlorinated terpens, quintozene, selenium compounds, 2,4,5–T, and Toxaphene. 48   The 1992 Helsinki Convention, supra note 23, Annex II, Regulation 4.

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and disposal systems, saving of resources (energy), recycling and re-use; – avoiding the use of hazardous substances; – application of economic instruments to activities, products or groups of products and emissions; and – a system of licensing, including a range of restrictions or a ban. According to Annex II, particular consideration should be given to certain elements in determining in general and individual cases what combination of measures constitutes BEP. These are: – the precautionary principle; – the ecology risk associated with the product, its production, use and final disposal; – avoidance or substitution of less polluting activities or substances; – scale of use; potential environmental benefit or penalty of substitute materials or activities; – advances and changes in scientific knowledge and understanding; – time limits for implementation; and – social and economic implications. BAT “is taken to mean the latest stage of development (state of art) of processes, of facilities, or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges.” In consideration of the BAT, Annex II enumerates factors, which have to be taken into account: comparable processes, facilities or methods of operation, which have been recently successfully tested; technological progress and changes in scientific knowledge and understanding; the economic feasibility of such technology; the time limits for application; the nature and volume of the emissions concerned; no waste/ low-waste technology; and the precautionary principle.49 Hazardous substances are mostly introduced from the land and atmosphere. This is the weakest regulatory area under the regime of the 1992 Helsinki Convention. Article 6—Principles and Obligations Concerning Pollution from a Land-Base Sources—requires the Parties   Mention must be made of the Recommendation 13/6, adopted February 6, having regard to Article 13(b) of the Helsinki Convention, Definition of Best Environmental Practice, which related to the 1974 Helsinki Convention (Articles 1(6) and 2(2)), both on the pollution from land-based sources. 49



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to implement relevant measures “without prejudice to their sovereignty.” Furthermore, they are obliged to implement the procedures and measures set out in Annex III (criteria and measures concerning the prevention of pollution from land-based sources). In order to achieve this aim, the Parties shall, for example, cooperate in the development and adoption of specific programmes, guidelines, etc.50 Importantly, paragraph 3 prohibits the Parties from discharging harmful substances from point sources, except only in negligible quantities, introduced directly or indirectly in the Baltic Sea environment, without a special permit issued in accordance with the Regulation 3 of Annex III.51 In 1998, General Recommendation 19/5 “HELCOM Objective with Regard to Hazardous Substances” was adopted to implement, at least in part, Article 13, paragraph (b)(5) of the 1992 Helsinki Convention.52 This Recommendation includes a wide definition of hazardous substances.   The 1992 Helsinki Convention, supra note 23, art. 6 § 2.   The 1992 Helsinki Convention, supra note 23, art. 6: 1. The Contracting Parties undertake to prevent and eliminate pollution of the Baltic Sea Area from land-based sources by using, inter alia, the Best Environmental Practice to all sources and Best Available Technology for point sources. The relevant measures to this end shall be taken by each Contracting Party in the catchment area of the Baltic Sea without prejudice t its sovereignty. 2. The Contracting Parties shall implement the procedures and measures set out in Annex III. To this end the shall, inter alia, as appropriate co-operate in the development and adoption of special programmes, guidelines, standards or regulations concerning emissions and inputs to water and air, environmental quality, and products containing harmful substances and materials and the use thereof. 3. Harmful substances from the point sources shall not, except in negligible quantities, be introduced directly or indirectly into the marine environment on the Baltic Sea Area, without a prior special permit, which may be periodically reviewed, issued by appropriate national authority in accordance with the principles contained in Annex II, Regulation 3. The Contracting Parties shall ensure that authorised emissions to water and air are monitored and controlled. 4. If the input from a watercourse flowing through the territories of two or more Contracting Parties of forming a boundary between them, is liable to cause pollution of the marine environment of the Baltic Sea Area, the Contracting Parties concerned shall jointly and, if possible, in co-operation with a third state interested or concerned, take appropriate measures in order to prevent and eliminate such pollution. 52   http://www.helcom.fi/ (last visited July 26, 2008). There is also a host of Recommendations dealing with particular types of hazardous substances such as Reduction of Emissions and Discharges from Industry and Effective Use of BAT-No. 25/2, adopted 02.03.2004; Elimination of PCBs and PCTs-NO. 25/1, adopted 02.03.2004; Reduction of Nutrients and Other Pollutants leaching from Forestry land- No. 25/3, adopted 02.03.2004; Batteries Containing Mercury, Cadmium and Lead-No. 24/2, adopted 25.06.2003; Reduction of Discharges and Emissions from Production and Formulation 50 51

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Apart from hazardous substances, which are toxic, persistent and liable to accumulate, it also extends to substances which the HELCOM agreed required a similar approach as the above-mentioned substances, even if they do not meet all the criteria for toxicity, persistence or bioaccumulation, which give grounds for concern (such as suggestions of endocrine disruptive functions of damage to immune system). The second category includes both substances which work synergistically with other substances to generate such concern and also substances which do not themselves justify inclusion, but degrade or transform into substances which are the ‘classical’ hazardous substances or which give a cause for concern. The HELCOM was designated as a body to identify and assess such other substances or groups of substances using available information and internationally accepted methods and criteria.53 In order to select and prioritise such substances, the HELCOM took into consideration international research done by such bodies as OSPAR, the E.U. and the Organization for Economic Cooperation and Development (OECD). The Recommendation lists around 280 hazardous substances, out of which 43 were earmarked by the Recommendation for cessation, on the basis of previous HELCOM activities in other international forums such as the Oslo and Paris Commission for the Protection of the North-East Atlantic Marine Environment* (OSPARCOM). Some of these substances, such as PCBs, must be eradicated completely, and some may be used in closed systems. The HELCOM upheld the reduction by fifty percent of the input of forty-seven substances and the list of new forty-three substances partly covered the previous list. V.  The Implementation To implement Recommendation 19/5, a Project Team on Hazardous Substances was assembled, consisting of representatives from all HELCOM Parties, industry organisations and environmental groups. With the assistance of the HELCOM, the team had a multitude of functions: to provide an overview of the reasons for the failure of the HELCOM

of Pesticides-No. 23/10, adopted 06.03.2002; and Reduction of Emissions and Discharges of Mercury from Choralkali-No. 23/6, adopted 06.03.2002. 53   The 1992 Helsinki Convention, supra note 23, § 2.1. *  See www.ospar.org (last visited July 26, 2008).



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to reduce by fifty percent hazardous substances, as targeted by the 1988 Declaration; to create and to implement an effective strategy to meet the goals of Recommendation 19/5; to identify the sources, pathways and fate of hazardous substances; to analyse domestic and international legislation and market situation; and to assist with the development of policy instruments for the cessation of emissions, losses and discharges by substitution and/or minimised use. The Project Team also established guidance documents on certain substances.54 The Team limited the priority list to thirty-five substances, which was later extended to dioxin, thus bringing the list to a total of thirty-six substances. The Team started its work by establishing a pilot program to assess the effectiveness of the implementation of fifty percent targets as a preliminary step for dealing with the thirty-six priority substances. To this effect, the Parties to the Convention were asked to provide national figures on changes in emissions, discharges and losses in the Baltic Sea catchment Area in late 1980s and 1990s and to describe planned measures and activities to be implemented. In 2001, the Team submitted an inconclusive report stating that the lack of reliable data did not allow it to reach a definite, quantitatively based judgement on whether the fifty percent reduction target was achieved. According to the Team, qualitative targets were largely met, although some substances needed further attention. The general outcome by 2001 of this survey was that the fifty percent reduction of the target set out by the 1988 Declaration was met in relation to twenty-seven pesticides, at least three heavy metals (cadmium, lead and mercury) and PCBs. Twenty-six pesticides on the list were no longer legally in use, except perhaps in the Russian Federation. The domestic implementation was different in various member Parties. At the time of the research into the implementation of the Declaration, there were different clusters of implementations by the Baltic States. Four were members of the E.U. (Sweden, Denmark, Finland and Germany), had domestic regulations that were further reaching at times than the HELCOM Recommendations and had a high level of implementation. The so-called Accession States (that became E.U. Members since 2004), Poland, Estonia, Lithuania, and Latvia, had an environmental policy 54   Mercury, cadmium, nonylphenol and nonylphenolethoxylates, short-chain chlorinated paraffins, dioxins, PCBs and the substitution of the use of hazardous substances. All information on the Project Team from Selin, supra note 28, at p. 154.

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which to a large extent implemented the HELCOM Recommendations and in 2002 were already in the process of bringing their environmental regulation to that of the level of the E.U.55 The implementation by the Russian Federation of law concerning hazardous waste appears to be weak. However, it is very difficult to draw definite conclusions due to imprecise reports submitted by this country. The work of the Project Team was concluded in 2002.56 Both Selin and VanDeveer positively assess the input of the HELCOM (including the Task Team) in the decrease of pollution from hazardous substances in the Baltic Sea. There are several factors which contributed to this. First of all, the HELCOM implementation reviews should be mentioned. As is evidenced from the other areas of environmental co-operation, they enhance the general compliance with international obligations. Furthermore, the HELCOM’s initiatives, such as the Baltic Sea Joint Comprehensive Programme (JCP) contributed to the gradual eradication of the pollution from hazardous substances. The JCP was designed in 1992 to phase-out so-called “hot spots” around the Baltic Sea, which were identified as serious pollution sources. As of 2006, 82 out of 163 hot spots had been cleaned out. The majority of such hot spots were point sources such as municipal facilities and industrial plants, as well as pollution for agricultural areas and rural settlements. The JCP also covered the most sensitive areas, such as coastal lagoons and wetlands. These areas require special environmental measures. The communities were fully informed about the existence of such hot spots. It may be added that in order to eradicate hot spots, States parties to the HELCOM enact domestic legislation to this effect. The JCP was set up as the international environmental management framework for the long-term restoration of the ecological balance of the Baltic Sea. The JCP was coordinated by the Programme Implementation Task Force (PITF), defunct, as of 2003.57 At present the JCP is coordi-

55   Ibid., at p. 156 also noted other factors relating to the implementation of hazardous substances policies. Domestic reductions in emissions of hazardous substances in ten years resulted partly from the economic restructuring and industrial limitations rather than the pollution combating; the capacity of the public sector in environmental matters remained low; enforcement capabilities and local level capacities are low. 56   Ibid., at pp. 154–155. 57   It consisted of representatives from the E.U. and every Baltic Sea country in its drainage basin, as well international financing institutions: (the Council of Europe Development Bank (CEB); the European Bank for Reconstruction and Development (EBRD); the European Investment Bank (EIB); the Nordic Finance Corporation



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nated by the HELCOM LAND, with the view of the completion of the Programme in 2012 at the latest. The objective of this Programme is to facilitate the implementation of pollution reduction measures at the most polluted sites in the Baltic Sea catchment area. One of the means of achieving this objective is the assessment of the development and the support for the Parties in their efforts to eradicate “hot spots.”58 Since 1974, the HELCOM has initiated considerable investments in environmental protection, through financing from private industrial investors, as well as national regional and local authorities. Countries in transition benefited from co-financing, which involved loans from international financing institutions and grants from the E.U. and bilateral donors. The JCP was financed both from public and private sources. International sources of funding, such as international financial institutions, bilateral donors, export credit agencies, commercial banks and direct investment by foreign companies are complementary to national resources. International funding is granted in various forms: loans, soft loans, external programmes of the European Union for transitional countries to prepare and implement the JCP, loans from bilateral donors and loans from international financial institutions. National and local budgets have been used extensively to finance major environmental investment. Tariffs can also be used to cover investment and operational expenses. Major sources of funding in many countries, like Poland, are special environmental funds created from fees and fines for the utilization of the environment and natural resources.59 Selin and VanDeveer identify four interrelated challenges for the Baltic Sea hazardous waste management: engendering implementation and building public and private sector capacities; improving data availability, quality and comparability; strengthening existing regulation and incorporating new issues; and effectively coordinating international management of hazardous substances.60 As to the first of these challenges, it relates primarily to the transitional countries and the Russian

(NEFCO); the Nordic Investment Bank (NIB); the World Bank); governmental and non-governmental organisations. 58   http://www.helcom.fi/projects/jcp/en_GB/pitf/ (last visited July 26, 2008). 59  Other sources are: contributions in land and labour; new types of support (such as twining arrangements with Nordic utilities or non-governmental organisation than can provide practical assistance with development projects, in the field of human recourses); and private sector participation. http://www.helcom.fi, supra note 17 (last visited July 26, 2008). See also Selin, supra note 28, at pp. 156–157. 60   Selin, supra note 28, at pp. 157–159.

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Federation and concerns difficulties with their capacity building. Various forms of financing assist these countries (see above) in this respect. The Russian Federation constitutes the major challenge. It, however, is the recipient of the EU LIFE third Countries Project “Development and Strengthening of the Regional Co-ordination of Council’s Activity on the Implementation of HELCOM Decisions in the Russian Baltic Sea Region”. The project is supported by the HELCOM and its objective is to build political and administrative capacity within the North-West Okrug in order to implement the 1992 Helsinki Convention. The data quality and availability have to improve, as “many issues relating to data availability, quality and comparability are complex and resources intensive”61 and are also of relevance for other international forums dealing with hazardous substances. The third challenge should be viewed as an ongoing process, as the Baltic States have not yet reached the elimination of hazardous substances and the list of thirty-six “priority substances” may be expanded (the Recommendation 19/5 identified 280 substances, as potentially posing concerns to human health and the ecology of the Baltic Sea). Action must be undertaken as well in relation to stockpiles of phased-out pesticides, which may be found in the territories of the post-communist States and the former German Democratic Republic. The development of science may also result in the emergence of new substances which may pose danger to the Baltic Sea and which are unknown at present. The fourth challenge relates to the harmonization and coordination of international efforts in the elimination of hazardous substances in the main forums: the E.U., OSPARCOM, HELCOM and the Convention on the Long-Range Transboundary Air Pollution (CLARTAP). The additional positive aspect of such coordination would be the harmonisation of the reporting requirements.62 In 2003, the HELCOM Bremen Ministerial Meeting decided that one of the priority issues in the nearest future is to combat the pollution by hazardous substances, in particular as regards activities no covered by other forums. The 2003 HELCOM/OSPAR Joint Ministerial Declaration (Bremen Declaration) also mentions the presence of hazardous substances in the Baltic Sea as a matter of concern.63

  Ibid., at p. 157.   This task has been undertaken by the HELCOM. 63   HELCOM Ministerial Declaration (Bremen Declaration), June 25, 2003. 61 62



hazardous substances and the baltic sea 101 VI.  Conclusion

The HELCOM and its Member States, achieved to a great degree the elimination of pollution from hazardous substances, in comparison with other regional seas.64 The well-developed co-operation between the HELCOM Members and other institutions must be stressed. Implementation of the accepted HELCOM Recommendations has improved and so has reporting in terms of accuracy and uniformity. The concrete achievements are as follows: the loads of many substances have been reduced by at least fifty percent, since the 1980s, due to effective implementation of environmental legislation and the substitution of hazardous substances with harmless or less harmful substances and technological improvements. In post-Communist States, it was largely due to fundamental socio-economic changes. The twenty-six pesticides selected for priority action are either no longer used, have never been used or have been prohibited in the Baltic Sea region (however, stockpiles remain). PCBs are no longer produced, but again stockpiles are still present, however, measures have been proposed for their safe handling and to reduce their releases from existing equipment. The HELCOM prepared a report specifying the conditions of the Baltic which may render its eco-system more vulnerable. It also identifies the socio-economic factors which may influence the use of hazardous substances different from that of the E.U. These circumstances should be accounted for when new substances are selected for priority action. The HELCOM had developed a strategy on Downstream User Approach. It is considered an appropriate instrument to investigate the presence of priority hazardous substances on the national market.65 However, there are still tasks of great magnitude before the HELCOM and the Baltic States regarding the elimination of hazardous substances from the Baltic Sea Area. One of them is data collection on hazardous substances. The Project, which lasted from 2002 to 2004, (2002–2004) aimed at the improvement of the data collection in order to achieve the goal of the elimination of these substances by 2020. Various data collection and assessments have not provided a comprehensive integrated basis for data collection for the decision-makers. A special focus on the

  Selin, supra note 28, at p. 159.   http://www.helcom.fi/environment2/hazsubs/action/en_GB/hs/ (last visited July 26, 2008). 64 65

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data collection was Russia; The Baltic Environmental Forum carried out the Project, its final report was presented to the HELCOM in 2006.66 Reliable data is absolutely necessary in order to take any action. Therefore, a great importance is attached to the HELCOM’s “Assessments of the State of the Baltic Sea Marine Environment,” as well as to the results obtained from the international and national surveys, such as the Strategy of Hazardous Substances. It may also be added that the Project on Hazardous Substances, which was finalized in 2002, resulted in the publication of several Guidance documents, such as the: – Guidance on Mercury and Mercury Compounds (Poland, 2002); – Guidance Document on SCCPs (Sweden, 2002); – Guidance Document on Nonylphenol / Nonyphenolexthoxylates (NP / NPEs), (Sweden, 2002); – Guidance Document on Dioxins, (Finland, 2002); and – Guidance Document on Cadmium and its Compounds (Denmark, 2002).67 The findings of the HELCOM project on data collection for hazardous substances were to be completed in 2005. Monitoring Programmes play fundamental roles in the elimination of hazardous substances in the Baltic. The HELCOM monitoring system consists of several complementary programmes, such as: – The Baltic Sea Pollution Load Compilations Programmes (PLC-Air and PLC-Water) that quantify emissions of nutrients and hazardous substances to the air, discharges and losses to inland surface waters and the resulting waterborne inputs to the sea; – The Cooperative Monitoring in the Baltic Marine Environment (COMBINE) Programme quantifies the impacts of nutrients and hazardous substances on the environment; – The Monitoring of Radioactive Substances Programme (MORS) is designed to monitor radioactive substances and to quantify the inputs of artificial radionuclides; surveillance of illegal spills is also conducted by the HELCOM;

  http://www.helcom.fi, supra note 17.   Ibid.

66 67



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– The HELCOM Monitoring and Assessment Group (MONAS) promotes and tests new monitoring programmes and assessment techniques, such as models, geographical information systems, remote sensing and environmental indicators. The HELCOM cooperates with other international bodies in the area of monitoring, such as: – the Cooperative Programme for the Monitoring and Evaluation of Long-Range Transmission of Air Pollutants in Europe (the CLTRAP/ EMEP); – the International Council for the Exploration of the Sea (the ICES); – the European Environmental Agency (the EEA); – the International Atomic Energy Agency (the IAEA).68 The HELCOM is currently revising its monitoring Programmes, the so-called HELCOM-PRO initiative, which was established by the Heads of Delegations in 2003.69 The aim of MON-PRO is to harmonise the HELCOM programmes with the E.U. Water Framework Directive (WFD) monitoring and reporting obligations, to avoid the duplication of work and to revise programmes in order to include scientific development and technological inventions that had taken place sine the last revision in 1980s. One of the priority issues of the MON-PRO is the eradication of hazardous substances. At the same meeting, the HELCOM adopted a programme titled “Development of Measures for Hazardous Substances.”70 It was decided that the focus of the work of the HELCOM on hazardous substances, at least in the near future, should be aimed at ensuring that existing requirements are complied with rather than adopting new measures, as one of the problems is sometimes inadequate compliance with exiting Recommendations. This goal should be implemented by initiating projects on raising awareness, capacity building and assistance to countries. The HELCOM also listed the inventory of tasks to be followed: 68   http://www.helcom.fi./groups/monas/en_GB/monas_monitoring (last visited July 26, 2008). 69   Helsinki Commission, Status of the HELCOM PRO, Revising the HELCOM Assessment and Monitoring Programmes, 25th Meeting, March 2–3 2004. 70   “Future Role of HELCOM, its future priorities and organisational structure (Development of Measures for Hazardous Substances),” www.helcom.fi (last visited July 26, 2008).

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identification of threats; identification of fields of action and the need for measures; screening coverage of existing international and national provisions; and deciding whether to develop measures at international, regional or national levels. The choice of measures as regards the last item depends to a large extent on the source of pollution by hazardous substances, i.e., whether it originates from point sources or diffuse sources. Both the BEP and the BAT are of fundamental importance in combating pollution by hazardous substances from such sources. One of the important issues as well is the implementation of the E.U. directives in this respect. Finally, the issue of hazardous substances was mentioned at the Informal Ministerial meeting on November 23, 2005 in Stockholm on urgent action for the Baltic Sea.71 The tasks facing the Baltic States are very challenging. As described above, the management of the hazardous substances is not only about elimination but also about monitoring, the data collection, and bringing together environmental monitoring, chemical management experts and enforcement authorities. As to the goals, they are very ambitious: the ultimate aim is to reach background concentrations of naturally occurring substances and concentrations close to zero for anthropocentric synthetic substances.72 Finally, it must be emphasised that new 2005 Baltic Sea Action Plan adopted certain new approaches to the reduction of all pollution in the Baltic Sea and the repair the damage done to the marine environment, i.e., concerning hazardous substances.73 This new policy was established between the HELCOM Member States and the E.U. The plan is based on so-called Ecological Objectives encompassing a joint vision of a healthy Baltic Sea. These aim of these objectives is to assess the efficiency of existing environmental measures and to provide guidance for the future development of management measures for the region. Ecological Objectives are part and parcel of the Ecosystem 71   “Hazardous substances still constitute a threat to the biological life in major parts of the Baltic Sea Area. Further efforts must be made to minimise releases so that the content of such substances is reduced or where possible eliminated in the sea. The environmental impacts ammunitions should also be considered. All fish caught for consumption in the Baltic Sea Area should have non-elevated concentrations of hazardous substances.” Lena Sommestad, Chair, Ministry of Sustainable Development, www.helcom.fi, (last visited July 26, 2008). 72   J. Simanowska, Second Meeting of Project to Review the HELCOM Monitoring and Assessment Programmes, Theme-Hazardous Substances, Stockholm, Sweden February 16, 2005. 73   http://www.helcom.fi?BSAP/en_GB/intro/ (last visited July 26, 2008).



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Approach to Management, requiring precise ecological information and objectives to give guidance in relation to management decisions leading to a diverse and healthy Baltic Sea.74 Ecological Objectives for the Baltic Sea as a part of the ecosystem assessment concept were developed by the HELCOM Ecological Quality Objectives for the Baltic Sea (EcoQO) Project. Implementing activities for the determination of the “good environmental status for the Baltic” in quantifiable terms, HELCOM is relying on the stepwise approach. The aim is to use the Ecological Objectives as a means to connect environmental monitoring, assessments, research and management. The above-mentioned 2003 Bremen Declaration stated that the HELCOM activities will be built on the European Marine Strategy and that ecosystem approach, including nature conservation and biodiversity, will be one of the priority issues for the HELCOM in the coming years.75 The Action Plan was officially adopted by the Parties to the Helsinki Convention at the Ministerial Meeting in 2007. This Plan is very ambitious, aiming at the restoration of the good ecological status of the Baltic marine environment by 2021 and addressing all the major environmental problems affecting the Baltic marine environment. One of the targets of the Action Plan is eliminating hazardous substances. The HELCOM has already set a zero-emission target for all hazardous 74   http://www.helcom.fi/environment2/ecoqo/en_GB/objectives/ (last visited July 26, 2008). 75   HELCOM Project to Review the HELCOM Monitoring and Assessment Programmes, Second Meeting, Agenda Item 2, HELCOM Monitoring and Assessment Strategy, Draft HELCOM Strategic Goals, Ecological Objectives and Supporting Key Indicators for Eutrophication ,Hazardous Substances and Biodiversity, Sweden, February 14–18 2005, http://sea.helcom.fi:15037/dps/docs/documents/Monitoring%20and%20A ssessment%20Group%20(MONAS)/MON-PRO%20Workshop%202,%202005/2–2.pdf. The European Marine Strategy 2004 aims at the following: to progressively reduce discharges, emissions and loses of substances hazardous to the marine environment with the ultimate aim to reach concentrations of such substances in the marine environment near the background values for naturally occurring substances and close to zero for man-made synthetic substances; to prevent pollution from ionising radiation through progressive and substantial reductions of discharges, emissions and loses of radioactive substances, with the ultimate aim to reach concentrations in the marine environment near background values for naturally occurring radioactive substances and close to zero for artificial radioactive substances; by 2010 at the latest to improve compliance with all existing discharge regulations fro ships and with existing regulations on the protection of marine environment from pollution derived from shipping and marine transport and to further reduce the environmental impact of shipping, inter alia, by developing and applying the concept of the “Clean Ship” and further promote “safe shipping.”

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substances in the whole Baltic Sea catchment area by 2020. The ecological objectives set out in the HELCOM Baltic Sea Action Plan are: to reach concentrations of hazardous substance close to natural levels, to ensure that all Baltic fish are safe to eat, to safeguard the health of wildlife and to reach pre-Chernobyl levels of radioactivity. The actions on hazardous substances in the action plan focus on nine organic hazardous substances and two heavy metals. All the coastal countries will establish national programmes addressing hazardous substances. The countries will restrict uses of the selected hazardous substances and promote substitutions with less hazardous substances in industry and other sectors. The focus will be as well on capacity building of the relevant authorities and industries in order to increase awareness of how pollution involving hazardous substances can be eliminated. Due to the lack of availability of information, it was impossible to make a comprehensive assessment of the situation regarding hazardous substances in the Baltic Sea. Therefore the States-Parties to the Helsinki Convention decided to cooperate in acquiring more information about the sources of the selected hazardous substances, the extent of their occurrence in the Baltic marine environment, as well as about their biological effects. This knowledge can further be used as a basis for identifying further plans and actions.76

76   http://www.helcom.fi/BSAP/ActionPlan/en_GB/SegmentSummary/#hazardous (last visited August 2, 2008).

CHAPTER SEVEN

New Opportunities and Deep Ocean Technologies for Assessing the Feasibility of Sub-Seabed High-Level Radioactive Waste Disposal: The Application of 21st Century Oceanography to Solving Outstanding Problems Daniel J. Fornari I.  Summary From the mid-1970s to 1987, about $56 million in U.S. funding (representing just a small percent of the total funds spent on land-based disposal options) was directed from the U.S. Deptartment of Energy (DOE) through Sandia Laboratory for a program designed to test fundamental scientific and engineering concepts related to sub-seabed disposal (SSD) of high level radioactive waste (HLRW). The HLRW SSD program achieved considerable success in identifying promising ocean floor sites that could, with proper engineering and scientific evaluation, be technically feasible. The program also conducted a suite of preliminary scientific baseline studies that would inform both modeling and subsequent in situ experiments. In 1987, just as the key field, laboratory and modeling components of the sub-seafloor HLRW disposal program were being designed for implementation, funding for this program was cut in favor of land-based options that have remained controversial to this day. The possible utility of sub-seafloor HLRW disposal remains unresolved, however this knowledge has both important potential and ramifications for future nuclear energy and strategic demands. A renewed interest in the SSD options is especially relevant in light of significant technological and engineering advances in methods for understanding deep-ocean chemical and biological processes, geophysical monitoring, seafloor instrumentation, deep-ocean drilling and ocean floor observatories. I will present a summary of historical data related to the science programs involved in SSD up until 1987, key research that remains to be accomplished and how 21st century oceanographic techniques and seafloor observatory programs provide significant opportunities for testing the viability of SSD for HLRW.

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daniel j. fornari II.  Introduction: Scientific and Technological Context for SSD

The lessons of the Second World War serve to remind policy makers and the public of the value of basic research and how it can solve or help to resolve fundamental social, political and strategic problems. The 20th century was notable for the surge in basic science and engineering research—after the establishment of The National Science Foundation and the U.S. Navy’s Office of Naval Research (following the war effort)—and the impacts that science and technology had in fueling the engines of social and strategic change. The synergy and links between technology development and social change will continue well into this century and beyond. However, when politics undermine basic research the public loses both opportunities for advancement and avenues for innovative solutions to fundamental societal problems. Such is the case for HLRW SSD. Edward Miles (this volume) makes a compelling case towards explaining the national and international political context for SSD and the reasons why the basic research related to seabed HLRW disposal was terminated. In this Chapter, I do not discuss the policy context—given Miles’ excellent summary—but instead focus on the opportunities that exist for making substantive advances in our basic knowledge about the outstanding scientific and technological issues related to SSD, as well as a range of oceanographic and ocean engineering questions that would directly impact the viability of HLRW SSD. As I only consider the case for HLRW SSD and not the myriad of issues related to seabed dumping of other types of waste, radioactive and not, this will be referred to throughout this paper as SSD. Like any scientific endeavor, opportunities for SSD present challenges—in this case they are both political and technical. However,    See Edward L. Miles “Sub-Seabed disposal of High Level Radioactive Waste: The Policy Context Then and Now,” Chapter 9 infra.   For a review of topics related to low-level radioactive wastes and seabed disposal the reader is referred to these compilations: P.K. Park, D.R. Kester, I.W. Duedall & B.H. Ketchum (eds.), Wastes In The Ocean: Volume 3 of Radioactive Wastes And The Ocean (1983), pp. 303–325 (and papers cited therein); International Atomic Energy Agency, Issues In Radioactive Waste Disposal-Tecdoc 909, 1994; John F. Ahearne, “Radioactive Waste: The Size of the Problem”, 50 Physics Today pp. 24–29 (1997); Nuclear Energy Agency / Organization for Economic Co-Operation and Development, Progress Towards Geologic Disposal Of Radioactive Waste: Where Do We Stand? An International Assessment (1999); K.R. Rao, “Radioactive Waste: The Problem and its Management,” 81 Current Sci. (Dec. 25, 2001) 1534–1546.



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given the current state of the planet and the energy, strategic and environmental challenges that face us on many fronts, having a better understanding of whether SSD provides viable alternatives or advantages to the current politically imposed land-based HLRW storage and disposal schemes should be a top priority for the U.S. and other countries that generate HLRW. III.  Tectonic and Geological Rationale Teams of scientists lead by Bishop,, Hollister,3,, Schneider, Platt7 and Heath were the first to lay out the conceptual approach to SSD with the key idea being a new understanding that the deep, remote, central portions of large oceanic tectonic plates are zones of extreme geological stability. Sedimentary records contained in deep ocean drill cores and deduced from marine seismic surveys 10 reveal that abyssal plains, vast flat areas of the ocean floor covering remote sites in the North and South Atlantic, North Pacific and Indian Oceans (Figure 1) are sites where

   W.P. Bishop & C.D. Hollister, “Seabed Disposal—Where to Look,” 24 Nuclear Tech. 425 (1974) pp. 425–443.    W.P. Bishop, Sandia National Laboratories, Report No. SAND74–010, Subseabed Disposal Program, A First Year Report (1975).     C.D. Hollister, “The Seabed Option,” 20 Oceanus 18 (Winter 1977) pp. 18–25.     C.D. Hollister, D.R. Anderson & G.R. Heath, “Subseabed Disposal of Nuclear Wastes,” 213 Sci. 1321 (Sept. 18, 1981) pp. 1321–1326.     K.J. Schneider & A.M. Platt (eds.), High-Level Radioactive Waste Management Alternatives. Section 6: Subseabed Disposal (1974).    G.R. Heath, D.R. Anderson, C.D. Hollister & M. Leinen, “Why Consider Subseabed Disposal of High-Level Nuclear Wastes?” in P.K. Park, D.R. Kester, I.W. Duedall, & B.H. Ketchum (eds.), Wastes in the Ocean: Volume 3 of Radioactive Wastes and the Ocean (1983) pp. 303–325 [Heath I].     See Figures 1–3. 10   See R.C. Searle, U.K. Institute of Oceanographic Sciences, Report No. 91, Guidelines For The Selection Sites For Disposal Of Radioactive Waste On Or Beneath The Ocean Floor (1979); R.C. Searle, “Guidelines for the Selection of Sites that Might Prove Suitable for Disposal of High-Level Radioactive Waste on or Beneath the Ocean Floor,” 64 Nuclear Tech. 166 (1984) pp. 166–174; L. Shepard et al., “Subseabed Disposal: Systematic Application of the Site Qualification Plan,” 14 Oceans 1074 (Sept. 1982) pp. 1074–1079; E.J.T. Duin & A. Kuijpers, Rijks Geologische Dienst, Progress Report for 1982, Geological Studies On Abyssal Plains In The North Atlantic (1983); E.P. Laine, D.R. Anderson & C.D. Hollister, “Site Qualification for the Subseabed Disposal Program,” in P.K. Park et al. (eds.), Wastes In The Ocean: Volume 3 Radioactive Wastes And The Ocean (1983), pp. 345–358; Heath I, supra note 8; T.J.G. Francis, R.C. Searle & T.R.S. Wilson, “The Oceanic Sediment Barrier,” 319 Phil. Transactions Royal Soc’y A: Mathematical, Physical, Engineering Sci. 115 (1986) pp. 115–137.

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Global bathymetry of the world’s oceans showing three abyssal plain areas where initial sub-seabed disposal research was carried out. Source: Dan Fornari, 2008

Figure 1: Initial Areas of SSD Research

sediments—derived mainly from pelagic deposition of silicic or carbonate rich tests of microorganisms—are laid down in classic layer upon layer sequences. This geological setting and the expanding coverage of global seismicity, in part a response to the need for nuclear test ban verification,11 provided conclusive evidence that oceanic abyssal plains are aseismic and stable over millions to tens of millions of years.12 The term ‘stable’, in a geological sense, can have multiple meanings depending on the environment. For application to SSD, geologic and oceanographic stability at a suitable deep seafloor site would need to involve five key attributes, all of which would be viewed as favorable qualities for SSD. They are: 1. Very low seismicity so that faults would not disrupt the layered sequence of marine sedimentary strata over long time periods (e.g., millions of years),

11   National Academy of Sciences (NAS), Management And Disposition Of Excess Weapons Plutonium (1994). 12   See G.R. Heath, “Ion Transport in Deep-Sea Sediments,” in American Society of Mechanical Engineers, Geological Disposal Of Nuclear Waste (1979), pp. 25–29 [Heath II]; G.R. Heath, T.C. Moore, Jr. & T.H. van Andel, “Sediment Budget in a Deep-Sea Core from the Central Equatorial Pacific,” 28 J. Marine Res. 225 (1977) pp. 225–234; Shepard, supra note 11; Heath I, supra note 8; Francis, supra note 11.



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2. Low-energy hydrographic environment so that mixing of bottom waters with overlying water and into the upper sedimentary section is restricted, 3. Physico-chemical properties of the sediments that would be adsorptive to radionuclides and daughter products associated with HLRW, 4. Low-permeability gradients throughout the upper sedimentary section, and 5. Minimal effects of any dispersal on seabed or subsurface biota or microbial populations. By comparison, as seen in Figure 2, the continental crust, in general, is typically very heterogeneous in all of the above characteristics, despite its much greater accessibility for both study and utilization for applied purposes like HLRW storage and disposal. In particular, Yucca Mountain, the site chosen for HLRW storage/disposal based largely on political grounds,13 is marked by variable tectonic/seismic structure and physical properties of the surrounding strata that are heterogeneous. The debate over the geological and technological viability of Yucca Mountain to HLRW storage/disposal has raged over the past twenty years, with no obvious end in sight despite tens of billions of dollars spent in conducting a wide range of geological and applied technologies research at the site.14 Despite the legislative mandate for the facility to open in 1998, perennial delays and controversies in the geological and engineering research carried out to support the validation of the implementation of the facility have cast a great deal of uncertainty over whether Yucca Mountain is or ever will be viable as an HLRW storage/disposal facility. In hindsight, the decision to terminate the investigation of other HLRW disposal/storage options in the mid-1980s was unfortunate, to say the least. For the purpose of this discussion, however, the only relevant facts

  See Miles, supra note 1.  G.S. Bodvarsson et al., “Overview of Scientific Investigations at Yucca Mountain—the Potential Repository for High-Level Nuclear Waste,” 38 J. Contaminant Hydrology 3 (1999) pp. 3–24; R. Loux, “Yucca Mountain Project: Statement of Robert R. Loux Executive Director Nevada Agency for Nuclear Projects,” CQ Cong. Testimony (May 16, 2006); J. Wells, “Yucca Mountain Nuclear Storage Site Review: Statement of Jim Wells Director, Natural Resources and Environment, United States Government Accountability Office,” CQ Cong. Testimony (Apr. 25, 2006); K. Davidson, “Deadly Nuke Rods Piling Up in State; Burial Site Project in Nevada in Limbo,” The San Francisco Chronicle (June 24, 2006) at A1. 13

14

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This map displays complex continental tectonics and high seismicity of plate margins versus seismic stability of abyssal plain areas of old ocean crust. Source: NASA, 2008

Figure 2:  Tectonic Map of the World

are those that pertain to a strict geological comparison between SSD and Yucca Mountain, not withstanding the technical issues of delivery of HLRW to each site—which in and of themselves present daunting challenges for both land based and SSD options. IV.  Background on Previous Research Related to SSD Considering the summary presented above in regards to the generic geological characteristics required for successful SSD, what is the state of knowledge that can be applied to evaluation of the SSD option? The technical findings of the research carried out over the decade that the DOE and Sandia Laboratory-supported in-house and sponsored academic research on SSD have been published primarily in technical reports as well as publications in the scientific literature.15 Those findings 15   Park, supra note 2; United States Office of Technology Assessment (OTA), Managing The Nation’s Commercial High-Level Radioactive Waste (1985); P.J. Schultheiss & M. Noel, “Evidence of Pore-Water Advection in the Madeira Abyssal Plain from Pore-Pressure and Temperature Measurements,” in Geological Society of London special publication, Geology And Geochemistry Of Abyssal Plains (1987), pp. 113–129;



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