Veterans Burn Pits Exposure Recognition Act of 2021

II 117TH CONGRESS 1ST SESSION S. 437 To amend title 38, United States Code, to concede exposure to airborne hazards and toxins from burn pits under certain circumstances, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 24, 2021 Mr. SULLIVAN (for himself and Mr. MANCHIN) introduced the following bill; which was read twice and referred to the Committee on Veterans’ Affairs A BILL To amend title 38, United States Code, to concede exposure to airborne hazards and toxins from burn pits under certain circumstances, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Veterans Burn Pits 4 Exposure Recognition Act of 2021’’. 5 SEC. 2. FINDINGS; SENSE OF CONGRESS. 6 (a) FINDINGS.—Congress makes the following find- 7 ings: 8 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 2 •S 437 IS (1) The health of some members of the Armed 1 Forces and veterans who served in certain locations, 2 often multiple times, may have been affected by 3 their service near burn pits and other sources of air- 4 borne hazards. 5 (2) Determining the location of burn pits, and 6 the scope of health effects associated to exposure, re- 7 mains the subject of much investigation, research, 8 and good faith efforts by the Department of Vet- 9 erans Affairs, the Department of Defense, other gov- 10 ernment agencies, and the National Academies of 11 Sciences, Engineering, and Medicine. 12 (3) The locations of burn pits used by the De- 13 partment of Defense and partnered armed forces, 14 and the possible health effects associated by their 15 use, may never be completely known, as— 16 (A) some location and air and soil quality 17 data is fragmentary; and 18 (B) the research involved with establishing 19 links between burn pit exposure and health con- 20 ditions by necessity is complex, years in length, 21 and in the end, in some cases, inconclusive. 22 (4) The September 2020 National Academies of 23 Sciences, Engineering and Medicine consensus study 24 report entitled ‘‘Respiratory Health Effects of Air- 25 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 3 •S 437 IS borne Hazards Exposures in the Southwest Asia 1 Theater of Military Operations’’ concludes that the 2 available evidence does not allow a definitive deter- 3 mination to be made about any potential association 4 between airborne hazards in the theater and numer- 5 ous respiratory health outcomes. The report charac- 6 terizes existing research as inadequate, and advises 7 that additional research be done, including longitu- 8 dinal studies that by design take years. 9 (5) In the interim, though, some veterans have 10 already been adversely affected by their exposure to 11 burn pits, and their claims to certain benefits fur- 12 nished by the Department of Veterans Affairs can 13 be reviewed on a case-by-case basis. 14 (6) When filing a claim for certain benefits fur- 15 nished by the Department of Veterans Affairs, the 16 application requires that each veteran show evidence 17 of their exposure to burn pits, however if the evi- 18 dence of exposure to burn pits is not provided, the 19 claim is often denied. 20 (b) SENSE OF CONGRESS.—It is the sense of Con- 21 gress that— 22 (1) if it is determined that a veteran was de- 23 ployed to a covered location during a certain period, 24 the Secretary of Veterans Affairs should concede 25 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 4 •S 437 IS that the member or veteran was exposed to certain 1 toxic substances, chemicals, and hazards; 2 (2) a concession of exposure as described in 3 paragraph (1) should not alone be sufficient to enti- 4 tle one to health care or disability compensation 5 under laws administered by the Secretary of Vet- 6 erans Affairs; 7 (3) the Department of Veterans Affairs, the 8 Department of Defense, and other relevant agencies 9 should make information regarding burn pit loca- 10 tions immediately available to the public, with appro- 11 priate caveats to its completeness and need for po- 12 tential future revision; and 13 (4) the earliest possible period for which the 14 Secretary of Veterans Affairs should make conces- 15 sions as described in paragraph (1) should begin on 16 August 2, 1990. 17 SEC. 3. CONCESSION OF EXPOSURE TO AIRBORNE HAZ- 18 ARDS AND TOXIC SUBSTANCES FROM DE- 19 PARTMENT OF DEFENSE AND PARTNERED 20 ARMED FORCES BURN PITS. 21 (a) CONCESSION REQUIRED.— 22 (1) IN GENERAL.—Subchapter II of chapter 11 23 of title 38, United States Code, is amended by add- 24 ing at the end the following new section: 25 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 5 •S 437 IS ‘‘§ 1119. Concession of exposure to airborne hazards 1 and toxic substances from burn pits 2 ‘‘(a) IN GENERAL.—For purposes of section 1110 3 and chapter 17 of this title, any veteran who, during active 4 military, naval, or air service, was deployed in support of 5 a contingency operation while so serving and as part of 6 such deployment served in a covered location during a cor- 7 responding period set forth under subsection (b), shall be 8 considered to have been exposed to the toxic substances, 9 chemicals, and hazards listed in subsection (c), unless 10 there is affirmative evidence to establish that the veteran 11 was not exposed to any such substances, chemicals, or haz- 12 ards during that service. 13 ‘‘(b) COVERED LOCATIONS AND CORRESPONDING 14 PERIODS.—(1) The covered locations and corresponding 15 periods set forth under this subsection are as follows: 16 ‘‘(A) Iraq and the following periods: 17 ‘‘(i) The period beginning on August 2, 18 1990, and ending on February 28, 1991. 19 ‘‘(ii) The period beginning on March 19, 20 2003, and ending on such date as the Secretary 21 determines burn pits are no longer used in Iraq. 22 ‘‘(B) The Southwest Asia Theater of oper- 23 ations, other than Iraq, and the period beginning on 24 August 2, 1990, and ending on such date as the 25 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 6 •S 437 IS Secretary determines burn pits are no longer used in 1 such location, including the following: 2 ‘‘(i) Kuwait. 3 ‘‘(ii) Saudi Arabia. 4 ‘‘(iii) Oman. 5 ‘‘(iv) Qatar. 6 ‘‘(C) Afghanistan and the period beginning on 7 September 11, 2001, and ending on such date as the 8 Secretary determines burn pits are no longer used in 9 Afghanistan. 10 ‘‘(D) Djibouti and the period beginning on Sep- 11 tember 11, 2001, and ending on such date as the 12 Secretary determines burn pits are no longer used in 13 Djibouti. 14 ‘‘(E) Syria and the period beginning on Sep- 15 tember 11, 2001, and ending on such date as the 16 Secretary determines burn pits are no longer used in 17 Syria. 18 ‘‘(F) Jordan and the period beginning on Sep- 19 tember 11, 2001, and ending on such date as the 20 Secretary determines burn pits are no longer used in 21 Jordan. 22 ‘‘(G) Egypt and the period beginning on Sep- 23 tember 11, 2001, and ending on such date as the 24 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 7 •S 437 IS Secretary determines burn pits are no longer used in 1 Egypt. 2 ‘‘(H) Lebanon and the period beginning on 3 September 11, 2001, and ending on such date as the 4 Secretary determines burn pits are no longer used in 5 Lebanon. 6 ‘‘(I) Yemen and the period beginning on Sep- 7 tember 11, 2001, and ending on such date as the 8 Secretary determines burn pits are no longer used in 9 Yemen. 10 ‘‘(J) Such other locations as are set forth by 11 the Airborne Hazards and Open Burn Pit Registry 12 established under section 201 of the Dignified Bur- 13 ial and Other Veterans’ Benefits Improvement Act 14 of 2012 (Public Law 112–260; 38 U.S.C. 527 note) 15 and corresponding periods set forth in such registry. 16 ‘‘(K) Such other locations and corresponding 17 periods as the Secretary, in collaboration with the 18 Secretary of Defense, may determine appropriate in 19 a report the Secretary of Veterans Affairs shall sub- 20 mit to Congress not later than two years after the 21 date of the enactment of the Veterans Burn Pits Ex- 22 posure Recognition Act of 2021 and not less fre- 23 quently than once every two years thereafter. 24 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 8 •S 437 IS ‘‘(2) A location set forth under this subsection shall 1 not include any body of water around or any airspace 2 above such location. 3 ‘‘(c) TOXIC SUBSTANCES, CHEMICALS, AIRBORNE 4 HAZARDS.—(1) Subject to paragraph (2), the toxic sub- 5 stances, chemicals, and airborne hazards listed in this sub- 6 section are as follows: 7 ‘‘(A) Particulate matter, including the fol- 8 lowing: 9 ‘‘(i) PM-10. 10 ‘‘(ii) PM-2.5. 11 ‘‘(B) Polycyclic aromatic hydrocarbons (PAHs), 12 including the following: 13 ‘‘(i) Acenaphthene. 14 ‘‘(ii) Acenaphthylene. 15 ‘‘(iii) Anthracene. 16 ‘‘(iv) Benzo(a)anthracene. 17 ‘‘(v) Benzo(a)pyrene. 18 ‘‘(vi) Benzo(b)fluoroanthene. 19 ‘‘(vii) Benzo(g,h,i)perylene. 20 ‘‘(viii) Benzo(k)fluoroanthene. 21 ‘‘(ix) Chrysene. 22 ‘‘(x) Dibenz(a,h)anthracene. 23 ‘‘(xi) Fluoranthene. 24 ‘‘(xii) Fluorene. 25 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 9 •S 437 IS ‘‘(xiii) Indeno(1,2,3-cd)pyrene. 1 ‘‘(xiv) Naphthalene. 2 ‘‘(xv) Phenanthrene. 3 ‘‘(xvi) Pyrene. 4 ‘‘(C) Volatile organic compounds (VOCs), in- 5 cluding the following: 6 ‘‘(i) Acetone. 7 ‘‘(ii) Acrolein. 8 ‘‘(iii) Benzene. 9 ‘‘(iv) Carbon Disulfide. 10 ‘‘(v) Chlorodifluoromethane. 11 ‘‘(vi) Chloromethane. 12 ‘‘(vii) Ethylbenzene. 13 ‘‘(viii) Hexane. 14 ‘‘(ix) Hexachlorobutadiene. 15 ‘‘(x) m/p-Xylene. 16 ‘‘(xi) Methylene Chloride. 17 ‘‘(xii) Pentane. 18 ‘‘(xiii) Propylene. 19 ‘‘(xiv) Styrene. 20 ‘‘(xv) Toluene. 21 ‘‘(D) Toxic organic halogenated dioxins and 22 furans (dioxins), including the following: 23 ‘‘(i) 1,2,3,4,6,7,8 HPCDD. 24 ‘‘(ii) 1,2,3,4,6,7,8 HPCDF. 25 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 10 •S 437 IS ‘‘(iii) 1,2,3,4,7,8,9 HPCDF. 1 ‘‘(iv) 1,2,3,4,7,8 HXCDD. 2 ‘‘(v) 1,2,3,4,7,8 HXCDF. 3 ‘‘(vi) 1,2,3,6,7,8 HXCDD. 4 ‘‘(vii) 1,2,3,6,7,8 HXCDF. 5 ‘‘(viii) 1,2,3,7,8,9 HXCDD. 6 ‘‘(ix) 1,2,3,7,8,9 HXCDF. 7 ‘‘(x) 1,2,3,7,8 PECDD. 8 ‘‘(xi) 1,2,3,7,8 PECDF. 9 ‘‘(xii) 2,3,4,6,7,8 HXCDF. 10 ‘‘(xiii) 2,3,4,7,8 PECDF. 11 ‘‘(xiv) 2,3,7,8 TCDD. 12 ‘‘(xv) 2,3,7,8 TCDF. 13 ‘‘(xvi) octachlorodibenzodioxin. 14 ‘‘(xvii) octachlorodibenzofuran. 15 ‘‘(E) Such other toxic substances, chemicals, 16 and airborne hazards as the Secretary, in collabora- 17 tion with the Secretary of Defense, may add under 18 paragraph (2). 19 ‘‘(2) The Secretary may add to or remove from the 20 list under paragraph (1) as the Secretary determines ap- 21 propriate in a report the Secretary shall submit to Con- 22 gress not later than two years after the date of the enact- 23 ment of the Veterans Burn Pits Exposure Recognition Act 24 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 11 •S 437 IS of 2021, and not less frequently than once every two years 1 thereafter. 2 ‘‘(d) MEDICAL EXAMINATIONS AND MEDICAL OPIN- 3 IONS.—(1) If a veteran described in subsection (a) sub- 4 mits to the Secretary a claim for compensation for a serv- 5 ice-connected disability with evidence of a disability and 6 service in a covered location and corresponding period set 7 forth under subsection (b) and such evidence is not suffi- 8 cient to establish a service connection for the disability, 9 the Secretary shall provide the veteran with a medical ex- 10 amination and the Secretary shall request a medical opin- 11 ion as to any causal link between the disability and a toxic 12 substance, chemical, or hazard set listed in subsection (c). 13 ‘‘(2) When providing the Secretary with a medical 14 opinion requested under paragraph (1), the provider shall 15 consider the total potential exposure through all applicable 16 military deployments, and the synergistic effect of all com- 17 bined toxic substances through inhalation, dermal expo- 18 sure, and ingestion. 19 ‘‘(e) DEFINITION OF BURN PIT.—In this section, the 20 term ‘burn pit’ means an area of land that— 21 ‘‘(1) is designated by the Secretary of Defense 22 to be used for disposing solid waste by burning in 23 the outdoor air; and 24 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 12 •S 437 IS ‘‘(2) does not contain a commercially manufac- 1 tured incinerator or other equipment specifically de- 2 signed and manufactured for the burning of solid 3 waste.’’. 4 (2) CLERICAL AMENDMENT.—The table of sec- 5 tions at the beginning of chapter 11 of such title is 6 amended by inserting after the item relating to sec- 7 tion 1118 the following new item: 8 ‘‘1119. Concession of exposure to airborne hazards and toxic substances from burn pits.’’. (b) REPORTS.— 9 (1) REPORTS REQUIRED.—The Secretary shall 10 submit to the Committee on Veterans’ Affairs of the 11 Senate and Committee on Veterans’ Affairs of the 12 House of Representatives reports as follows: 13 (A) Not later than 60 days after the date 14 of the enactment of this Act, a report covering 15 the one-year period preceding the date of the 16 enactment of this Act. 17 (B) Not later than 425 days after the date 18 of the enactment of this Act, a report covering 19 the one-year period beginning on the date of the 20 enactment of this Act. 21 (C) Not later than 790 days after the date 22 of the enactment of this Act, a report covering 23 the one-year period beginning on the date that 24 VerDate Sep 11 2014 23:59 Mar 17, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S437.IS S437 kjohnson on DSK79L0C42PROD with BILLS 13 •S 437 IS is one year after the date of the enactment of 1 this Act. 2 (2) CONTENTS.—Each report submitted under 3 paragraph (1) [Text truncated for display. Full text available on Congress.gov.]