Dioxin Developments

June 30, 2015

VA Expands Disability Benefits for Air Force Personnel Exposed to Agent Orange on C-123 Aircraft

The Department of Veterans Affairs (“VA”) has published a new regulation that expands eligibility for some benefits for a select group of Air Force Veterans and Air Force Reserve personnel who were exposed to the herbicide Agent Orange through “regular and repeated contact” with C-123 aircraft that had been used in Vietnam as part of Operation Ranch Hand.

The VA said that it published the new regulation as an interim final rule so that it could immediately begin providing benefits to eligible Air Force veterans and Air Force Reserve personnel who submit a disability compensation claim for any of the 14 medical conditions that have been determined by the VA to be related to exposure to Agent Orange.

The VA said that Secretary of Veterans Affairs Robert A. McDonald made the decision to expand benefits following receipt of a 2015 report by the National Academy of Sciences Institute of Medicine (“IOM”) on “Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft.” The VA-requested report found that as many as 1,500 to 2,100 Air Force and Air Force Reserve personnel who served as flight, medical, and ground maintenance crew members on C-123 aircraft previously used to spray Agent Orange in Vietnam had been exposed to the herbicide.

Under the new rule, Air Force and Air Force Reserve flight, medical, and ground maintenance crewmembers who served on the identified C-123s are presumed to have been exposed to herbicides during their service; the VA said that this would make it easier for them to establish entitlement for some VA benefits if they develop an Agent Orange-related presumptive condition.

In addition, for affected Air Force Reserve crew members, the VA said that it will presume that their Agent Orange-related condition had its onset during their Reserve training. The VA said that this change would make these reservists eligible for VA disability compensation and medical care for any Agent Orange-related presumptive condition, and would make their surviving dependents eligible for dependency and indemnity compensation and burial benefits.

On June 10, U.S. Senators Ron Wyden (D-Ore.), Sherrod Brown (D-Ohio), and Jeff Merkley (D-Ore.) blocked the confirmation of Dr. David J. Shulkin, President Obama’s nominee for Under Secretary for Health of the VA, announcing that the hold on his confirmation would remain in place until the VA released a final decision on the C-123 veterans.

Following the VA’s announcement of the new rule, the Senators issued statements. Senator Wyden said: “I’m glad the VA has finally acknowledged that these C-123 veterans, who were exposed to the hazards of Agent Orange, deserve medical care and benefits. While this decision is long overdue, I’m encouraged that the agency heeded our calls to change course and ensure that these veterans will receive the care they deserved from the start.”

Senator Brown said: “All servicemembers exposed to Agent Orange residue deserve the same benefits, whether they flew on missions that used the chemical or they worked on planes still contaminated by it years later. I thank Secretary McDonald for his action to extend healthcare and disability benefits to C-123 reservists. These veterans have waited too long to receive benefits that they earned.”

Senator Merkley said: “These veterans who were exposed to Agent Orange during their service on contaminated aircraft were injured serving our country, and we owe them the best care possible. Whether they were active duty or reservists, their sacrifices should be recognized. I’m glad the VA has finally reached the right decision and the affected veterans will receive justice, and I thank Secretary McDonald for getting this done.”

On June 23, the Senate voted to confirm Dr. Shulkin.

Texas Governor Greg Abbott Signs Bill that Limits Pollution Lawsuits

Texas Governor Greg Abbott has signed into law a bill that limits the amount local governments can collect as damages in environmental litigation for violations of the state’s Water Code and Health and Safety Code.

Under the new law, effective September 1, the first $4.3 million of an amount recovered must be divided equally between the state and local government that brought the lawsuit. Any amount in excess of $4.3 million would be awarded to the state alone.

Under current law, the state and local government share equally in such lawsuit awards.

The law also prescribes certain factors to be considered in determining the amount of a civil penalty in a suit brought by a local governments relating to a permit issued by the Texas Commission on Environmental Quality (“TCEQ”), and it imposes certain time limitations for a local government to bring such a lawsuit.

The reported impetus of the law was an effort to cut back environmental litigation initiated by Harris County, Texas, which has brought about a dozen cases a year in recent years, including in connection with the so-called San Jacinto Waste Pits.

For further information on the litigation over the San Jacinto Waste Pits, click here.

New Jersey Governor Chris Christie Vetoes Bill that Would Have Provided More Funds for Environmental Restoration and Remediation

A New Jersey bill, S-2791/A-4281, that revised New Jersey’s fiscal year 2015 budget to allocate one-half of all environmental damage recoveries above $50 million to the costs of remediation, restoration, and cleanup of natural resource damage, including the Passaic River, has been vetoed by New Jersey Governor Chris Christie.

In a statement, the governor said that the “protection and preservation of the ecological wonders of which New Jersey is so proud have always been critical considerations when weighing where New Jersey’s limited budget dollars should be delivered, but there are always challenging decisions that must be made when balancing a complex state budget.” Governor Christie added that the “allocation determined as part of the collaborative state budget process strikes an appropriate balance between the environmental and fiscal needs of the citizens of New Jersey, and goes as far as possible to continue the restoration of the natural spaces and waterways our citizens enjoy.”

As a result of the veto, as provided by existing law, only the first $50 million of natural resource-related settlements and damages obtained by New Jersey can be used to remedy natural resource damage; any amount in excess of $50 million is general state revenue that is deposited into the state’s general fund.

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