[Congressional Bills 112th Congress] [From the U.S. Government Publishing Office] [H.R. 1645 Introduced in House (IH)] 112th CONGRESS 1st Session H. R. 1645 To construct a specialty hospital and toxins research center on the island of Vieques, Puerto Rico, and for other purposes. _______________________________________________________________________ IN THE HOUSE OF REPRESENTATIVES April 15, 2011 Mr. Rothman of New Jersey (for himself, Mr. Pierluisi, Mr. Thompson of Mississippi, and Mr. Gutierrez) introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committees on Energy and Commerce and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned _______________________________________________________________________ A BILL To construct a specialty hospital and toxins research center on the island of Vieques, Puerto Rico, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Vieques Recovery and Development Act of 2011''. SEC. 2. FINDINGS. The Congress finds the following: (1) Vieques is an island municipality of Puerto Rico, measuring approximately 21 miles long by 4 miles wide, and located approximately 8 miles east of the main island of Puerto Rico. (2) Vieques is home to nearly 10,000 United States citizens, about 65 percent of whom live below the Federal poverty line. (3) The average monthly unemployment rate in Vieques was 21.9 percent in 2009, 17.7 percent in 2010, and 15.7 percent in January 2011. (4) Residents of Vieques are currently served by a single primary and urgent care facility, the Susana Centeno Family Health Center, and residents must travel off-island to obtain many essential medical services, including most types of emergency care. (5) The predominant means of transporting passengers and goods between Vieques and the main island of Puerto Rico is by ferry boat service, and over the years the efficacy of this service has frequently been disrupted by launch delays and mechanical problems. (6) The United States Navy maintained a presence on the eastern and western portions of the island of Vieques, Puerto Rico, for nearly 60 years and used parts of the island as a training range during those years, dropping over 80 million pounds of ordnance and employing virtually every type of ammunition and ordnance available to the Navy since World War II. (7) Residents living on the areas expropriated by the Federal Government for the Navy's use were required to relocate to the central portion of the island. (8) According to records of the Federal Government and testimony of Navy personnel, the island of Vieques, Puerto Rico, has high levels of heavy metals and has been exposed to chemical weapons and toxic chemicals, including napalm, agent orange, depleted uranium, white phosphorous, arsenic, mercury, lead, aluminum, cadmium, antimony, magnesium, TNT, PCBs, RDX, barium, cyanide, solvents, and pesticides. All of these weapons and chemicals have been deployed on the island of Vieques, Puerto Rico, in the interest of training for the defense of our Nation. (9) The Navy established the Vieques Naval Training Range in eastern Vieques, which consisted of two facilities: (1) the Atlantic Fleet Weapons Training Facility, which was used for ship-to-shore and aerial bombing exercises, and comprised a Live Impact Area and a Secondary Impact Area; and (2) the Eastern Maneuver Area, which was used primarily for ground- based training involving smaller munitions. (10) The Navy also established the Naval Ammunition Support Detachment in western Vieques to store munitions used in its training in eastern Vieques and to dispose of obsolete or damaged munitions. (11) In 2000, the Navy reported that it had used 1,862 tons of ordnance annually in training exercises on Vieques from 1983 to 1998. (12) In the National Defense Authorization Act for Fiscal Year 2001, Congress directed the Navy to close its facilities in western Vieques and to transfer approximately 4,000 acres of that property to the Municipality of Vieques, approximately 3,100 acres to the Department of the Interior, and approximately 800 acres to the Puerto Rico Conservation Trust. (13) In the National Defense Authorization Act for Fiscal Year 2002, Congress authorized the Navy to close its training facilities on eastern Vieques if equivalent training facilities were made available elsewhere and directed the Navy, upon closure, to transfer the nearly 15,000 acres of that property to the Department of the Interior. (14) In January 2003, the Navy certified to Congress that alternative training sites had been identified and confirmed that training operations would cease on Vieques by May 2003. (15) The Navy continues to be responsible for administering and funding the cleanup of munitions and contamination that resulted from its past activities on Vieques, subject to oversight by the Environmental Protection Agency (EPA) and the Puerto Rico Environmental Quality Board, an agency of the government of Puerto Rico. (16) Following the closure of the Navy's facilities in 2003, public concerns were raised as to how funding for the cleanup of Vieques would be prioritized among the hundreds of other contaminated military installations in the United States for which the Navy is responsible. (17) Factors motivating these concerns included the safety risks from explosives in munitions that had accumulated over decades of live-fire training, and the potential human health and ecological risks from contaminants that may have leached from munitions and other hazardous wastes into the environment. (18) In February 2005, EPA listed Vieques on the National Priorities List (NPL) of the most hazardous sites in the United States, elevating its priority for federally-funded cleanup. (19) The NPL site listing includes the former Vieques Naval Training Range in eastern Vieques and the former Naval Ammunition Support Detachment in western Vieques, as well as off-shore areas where munitions may have entered the water during past training exercises. (20) As of August 2010, the Navy had recovered and destroyed 34,642 live munitions on Vieques. (21) Through the end of Fiscal Year 2009, the Navy had spent a total of $120.4 million to support the cleanup of its former facilities on Vieques, and had estimated that an additional $269.9 million would be needed from Fiscal Year 2010 into the future to complete all planned cleanup actions. (22) The Navy has estimated that remedial actions to clean up unexploded ordnance, other discarded munitions, and munitions constituents will not be completed until Fiscal Year 2020, and has estimated that the entire cleanup of Vieques will not be completed until Fiscal Year 2045. (23) Although cleanup efforts are underway on Vieques, island residents have continued to express concern about the health impacts from long-term exposure to environmental contamination as a result of decades of Navy operations on Vieques. (24) In 2007, after exhausting their administrative remedies, over 7,000 residents of Vieques brought a lawsuit against the United States under the Federal Tort Claims Act (FTCA), seeking monetary compensation for damages to their health that they claimed were caused by exposure to contamination resulting from past Navy operations. (25) The residents of Vieques have based their tort claims on EPA-documented past violations by the Navy of Clean Water Act discharge permit requirements and other environmental statutes; findings by independent researchers who have attributed elevated levels of contaminants on Vieques to decades of Navy operations; insufficient notification by the Navy of the release of these contaminants into the environment; and higher rates of occurrence of certain diseases among residents of Vieques, including cancer, cirrhosis, hypertension, and diabetes, as reported by numerous researchers. (26) The residents of Vieques originally filed their claims in the United States District Court for the District of Columbia, which subsequently transferred those claims to the United States District Court for the District of Puerto Rico. (27) In July 2009, the United States filed a motion to dismiss the claims based on a lack of subject matter jurisdiction under the Federal Tort Claims Act (FTCA), asserting that the Navy's training activities on Vieques fell within the Act's ``discretionary function exception'', which is generally intended to prevent the United States from being held liable for the performance of actions involved in carrying out the role of the Federal Government and which immunizes the United States for acts or omissions of its employees that involve policy decisions, even when such decisions cause harm to United States Citizens. (28) In March 2010, a district court judge in the United States District Court for the District of Puerto Rico, in a brief sympathetic to the people of Vieques, nonetheless granted the United States' motion to dismiss based on lack of subject matter jurisdiction, without ruling on the merits of plaintiffs' substantive claims. (29) Plaintiffs have appealed that decision to the United States Court of Appeals for the First Circuit, and such appeal is currently pending. (30) In a report published in November 2009, the Puerto Rico Cancer Registry, then a part of the Puerto Rico Department of Health, found elevated levels of various cancers among residents of Vieques relative to cancer levels in mainland Puerto Rico. (31) Numerous other non-Federal studies of Vieques in the last 2 decades have found elevated levels of contaminants in the hair samples of Vieques residents, as well as in the island's soil, food supply, and water. (32) A 1999 study conducted by Dr. Colon de Jorge reported that 34 percent of the residents of the island of Vieques, Puerto Rico, have toxic levels of mercury in their blood stream, 55 percent are contaminated with lead, 69 percent are contaminated with arsenic, 69 percent are contaminated with cadmium, 90 percent are contaminated with aluminum, and 93 percent are contaminated with antimony. (33) A February 2001 analysis by Carmen Ortiz Roque, MD., M.P.H., M.S. reported that the residents of the island of Vieques, Puerto Rico, when compared to the inhabitants of the main island of Puerto Rico, are suffering with 30 percent higher rates of cancer, 381 percent higher rates of hypertension, 95 percent higher rates of cirrhosis of the liver, and 41 percent higher rates of diabetes. (34) Such analysis also reported that the infant mortality rate on the island of Vieques, Puerto Rico, when compared to infants born on the main island of Puerto Rico, is 25 percent higher. (35) The Agency for Toxic Substances and Disease Registry (ATSDR) conducted a series of Public Health Assessments on Vieques from 2001 through 2003, examining the potential for human exposure to contaminants through the air, soil, drinking water supplies and groundwater, and consumption of fish and shellfish, and issued a finding of ``No Apparent Public Health Hazard'' for each of these pathways. (36) The ATSDR's analytic methods and findings with respect to Vieques have been subject to criticism. (37) Critics of ATSDR's methods and findings include Dr. John P. Wargo, the Chair of the Yale College Environmental Studies Program and an expert in assessing human exposure to hazardous substances. (38) Dr. Wargo, in his 2009 book entitled ``Green Intelligence: Creating Environments That Protect Human Health'', expressed the view that the Federal Government has yet to conduct a ``scientifically defensible study'' with respect to environmental contamination on Vieques and its possible health effects on the island's residents. (39) Various non-Federal researchers who have studied Vieques in recent years have concluded that environmental contamination levels are higher than the ATSDR has reported, that the potential health hazards are therefore likely to be greater overall than the ATSDR has found, and that there is a more definitive link between the Navy's past activities and the various health problems that have been cited by the island's residents. (40) In March 2009, the House Committee on Science and Technology's Subcommittee on Investigations and Oversight held a hearing in which members of the Subcommittee questioned the ATSDR's findings about Vieques, raising questions about the manner in which ATSDR conducted its Public Health Assessments and the accuracy of the conclusions reached by the agency. (41) In the summer of 2009, ATSDR indicated that it would re-examine its prior findings in order to determine whether the available evidence revealed a greater risk of human exposure to contamination than previously understood. (42) In a November 2009 progress report, ATSDR announced that it expected to ``change some of its earlier conclusions regarding the safety of environmental exposures on Vieques''. (43) ATSDR further announced in its November 2009 progress report that it expected: to recommend biomonitoring to determine whether persons living on Vieques have been exposed to harmful chemicals, and, if so, at what levels those chemicals may be in their bodies; to work with health officials from Puerto Rico to conduct more in-depth evaluation of health outcomes; to work with community members and health officials from Puerto Rico to issue science-based, precautionary recommendations to protect public health; and to work with partners in Puerto Rico's health care community to encourage improved access to health care for residents of Vieques. (44) In a February 2008 letter to the Governor of Puerto Rico, then-presidential candidate Barack Obama stated that his Administration would ``closely monitor the health of the people of Vieques and promote appropriate remedies to health conditions caused by military activities conducted by the U.S. Navy on Vieques'' and ``work to evaluate and expand the existing land use plan for the former U.S. Navy lands to prioritize improving the lives of the Island's residents and the sustainable economic development of the people of Vieques''. (45) The March 2011 Report by the President's Task Force on Puerto Rico's Status stated that ``better health care facilities are an urgent need for the people of Vieques,'' recommended that ``HHS should work closely with the governments of Puerto Rico and Vieques to improve the quality of health care for the residents of Vieques,'' and concluded that ``a needs assessment should be completed to identify the most effective and efficient way to ensure that the people of Vieques receive the care, including expertise in environmental medicine, that they need''. (46) The March 2011 Report by the President's Task Force on Puerto Rico's Status further stated that ``there is much that the Federal Government can do to improve the quality of life for the people of Vieques''. SEC. 3. CONSTRUCTION OF A SPECIALTY HOSPITAL AND TOXINS RESEARCH CENTER. (a) In General.--The President, in consultation with the Puerto Rico College of Physicians and Surgeons of the University of Puerto Rico, Surgeon General of the Navy, Director of the National Institutes of Health, Director of the Centers for Disease Control and Prevention, Administrator of the Environmental Protection Agency, and other appropriate agencies (as determined by the President), shall acquire or convert real property located within the Municipality of Vieques for the purpose of constructing a specialty hospital and toxins research center that-- (1) with respect to the specialty hospital, provides treatment for the sick and injured, including treatment of illnesses and diseases that are prevalent in the Municipality of Vieques, such as cancer, hypertension, and heavy metals poisoning; and (2) with respect to the toxins research center-- (A) studies the existence and prevalence of toxins in the Municipality of Vieques and the impact of such toxins on plant, animal, and human life; (B) provides specific recommendations to the local government and residents of the Municipality of Vieques regarding the prevention of exposure to harmful levels of toxins in air, water, and food supplies; and (C) coordinates research activities and shares findings on an ongoing basis with medical personnel at the hospital constructed pursuant to this subsection. (b) Operations.--The President, or his designee, shall operate and maintain the quality of the hospital and research center described in subsection (a) on a continuing basis. In operating such hospital and research center, the President, or his designee, shall consider the needs of the residents of the Municipality of Vieques, taking into account the chemical weapons, toxic chemicals, and heavy metals used by the Department of the Navy on the island of Vieques and the potential health impacts associated with use of such weapons, chemicals, and metals. (c) Partnerships.--The President, or his designee, shall encourage partnerships with research universities for the purpose of building interest in researching-- (1) the many health problems experienced by the residents of the Municipality of Vieques; and (2) the long-term effect that the use of the weapons, chemicals, and heavy metals described in subsection (b) may have on such residents. (d) Authorization of Appropriations.-- (1) In general.--Subject to paragraph (2), there are authorized to be appropriated such sums as may be necessary to carry out the provisions of this section. (2) Limitation of appropriations.--The President may not carry out the provisions of this section or section 4 until the administrative claims filed on May 18, 2009, by the Mayor of the Municipality of Vieques for money damages against the Department of the Navy have been settled or compromised pursuant to section 2672 of title 28, United States Code. SEC. 4. DEVELOPMENT AND IMPLEMENTATION OF A COMPREHENSIVE FEDERAL INTERAGENCY PLAN FOR THE MUNICIPALITY OF VIEQUES. (a) Federal Interagency Plan.-- (1) In general.--Not later than 1 year after the date of the enactment of this Act, the President shall develop a comprehensive Federal interagency plan to ensure that the residents of the Municipality of Vieques benefit from improved access to Federal programs, Federal discretionary funding sources, and Federal agency technical assistance. (2) Plan contents.--The Federal interagency plan described in paragraph (1) shall include-- (A) a timeline, if appropriate, for the implementation of any specific recommendations, with respect to the island of Vieques, provided by the President's Task Force on Puerto Rico's Status; (B) additional specific recommendations and instructions to Federal agencies to utilize resources within their existing authority to assist the people of the Municipality of Vieques in more expeditiously achieving their own economic development, education, environmental, infrastructure, health care, and community goals, including a specific plan under which the Federal Government shall convey to the Municipality all lands that are administered by the Secretary of the Interior as of the date of the enactment of this Act and are determined by the Administrator of the Environmental Protection Agency to be appropriate to be placed under control of the Municipality; and (C) a requirement for the development of and entering into memoranda of understandings between the Municipality and individual Federal agencies for the purpose of specifically defining duties and responsibilities with regard to the implementation of such plan. (b) Appointment of Ombudsman.-- (1) In general.--The President shall appoint a Federal ombudsman for the Municipality of Vieques who shall monitor the development and implementation of the Federal interagency plan described in subsection (a). (2) Report.--Not later than 2 years after the date of the completion of the Federal interagency plan described in subsection (a), the Federal ombudsman shall submit to Congress a report that includes-- (A) a status update on the implementation of such plan; and (B) recommendations for optimizing the impact of such plan. SEC. 5. SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES FOR CERTAIN RESIDENTS OF THE ISLAND OF VIEQUES, PUERTO RICO. (a) In General.--An individual shall be awarded $10,000 for a claim made under this section if such individual-- (1) can demonstrate that he or she was a resident on the island of Vieques, Puerto Rico, during or after the Department of the Navy's usage of chemical weapons, toxic chemicals, and heavy metals for military training operations on the island; and (2) filed a claim on or before the date of the enactment of this Act against the United States Government for personal injury, including illness or death arising from such usage of such weapons, chemicals, and metals. (b) Additional Award Amounts Related to Specified Diseases.--Any individual who-- (1) meets the requirements under subsection (a); and (2) submits written medical documentation that he or she contracted a specified disease during or after the Department of the Navy's usage of chemical weapons, toxic chemicals, and heavy metals for military training operations on the island of Vieques, Puerto Rico, shall, in addition to the amount awarded under subsection (a), be awarded $50,000 (in the case of an individual who is diagnosed with 1 such disease), $80,000 (in the case of an individual who is diagnosed with 2 such diseases), or $110,000 (in the case of an individual who is diagnosed with 3 or more such diseases). (c) Appointment of Special Master.--The President shall appoint a special master to resolve expeditiously any disputes between the Attorney General and an individual with respect to the determination of an award under this section. (d) Guidance.--The Attorney General may use as guidance the Radiation Exposure Compensation Act (Public Law 101-426) and any regulation prescribed to interpret, implement, or administer such Act-- (1) in determining whether a claim filed under this section meets the requirements of this section; (2) to establish procedures whereby individuals may submit claims for payments under this section; and (3) for any other reason that the Attorney General determines that such guidance is necessary, except that the provisions of chapter 171 of title 28, United States Code (relating to settlements and compromises of claims), shall apply to claims cognizable under this section. (e) Source of Award.--A payment of an award made to an individual under this section shall be payable out of any moneys authorized for appropriation under section 1304 of title 31, United States Code, as if a settlement had been entered into between claimants and the Government. (f) Release.--The acceptance by an individual of a payment of an award under this section shall-- (1) be final and conclusive on the individual; (2) be deemed to be in full settlement of the claim described in subsection (a)(2); and (3) constitute a complete release by the individual of such claim against the United States and against any employee of the United States acting in the course of his employment who is involved in the matter giving rise to the claim. (g) Specified Disease Defined.--In this section, the term ``specified disease'' means any disease that is life threatening, chronic, or is related to heavy metals toxicity. <all>