1.This Act may be cited as the
Vieques Recovery and Development Act of
2011
.
2.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
.
3.Construction of a
specialty hospital and toxins research center
(a)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)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)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)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
appropriationsThe 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.
4.Development and
implementation of a comprehensive federal interagency plan for the Municipality
of Vieques
(a)
(1)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)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)
(1)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)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.
5.Settlement of
claims against the United States for certain residents of the island of
Vieques, Puerto Rico
(a)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 diseasesAny 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 masterThe 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)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)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)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 definedIn this
section, the term specified disease means any disease that is life
threatening, chronic, or is related to heavy metals toxicity.