Ley 25 del 2001

(No. 25)

(Approved April 25, 2001)

AN ACT

To create "The Noise Prohibition Act of 2001," to eliminate noise pollution harmful to the public health or welfare of the residents of the Commonwealth of Puerto Rico; to determine through this Act noise pollution deemed harmful to the health and welfare of the residents of the Commonwealth of Puerto Rico, and to prohibit any activity source that produces levels of noise higher than the levels of noise established by this Act at any point of the waters of Puerto Rico, except for trade routes as so defined; and to establish sanctions, and for other purposes.

STATEMENT OF MOTIVES

For the past years, a series of studies conducted in both, human beings and animals, that study the relation between the long term exposure to high-intensity ( 90 dB re 20 micro Pascal or higher in the air), and low frequency ( 500 Hz or less) sound and a whole-body pathology characterized by the proliferation of extracellular matrix, have been published in prominent medical journals.

In the course of said studies, the leading scientific global authority on this field, Dr. Castelo Branco and his colleagues, discovered that this whole-body pathology, which they denominated Vibroacoustic Disease, includes heart and pulmonary diseases, neurological disorders such as epilepsy, and also interference with the immune system which subsequently leads to cancer, including a relatively rare type of cancer of the glial supportive tissue of the brain. Furthermore, they discovered that this whole-body pathology is characterized by the thickening of cardiovascular structures, such thickening may be identified by non-invasive

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echocardiography tests. This cardiovascular condition is rarely seen in other clinical contexts.

Due to these findings, the United States Navy training at Vieques is a matter of great concern. The United States Navy has acknowledged that the average muzzle blast measurements taken by its own acousticians during its June, 2000, practices with Mark 45 gun inert ordnance exceeded 190 dB by a substantial margin.

When a double blind reading of echocardiograms conducted on a random sample of 51 Vieques residents and 42 residents of Ponce was analyzed by a team of cardiologists of the Ponce Medical School, it was determined that the thickening of the pericardium of the Vieques residents was significantly higher than that of the group of Ponce residents who is not exposed to sonic booms. Even though Vieques residents were, on the average, 10 years younger than those of the Ponce control group, Vieques fishermen showed a higher proportion of cardiovascular abnormalities. Likewise, the Vieques residents suffered from mitral valve insufficiency and larger aortic valve length than their Ponce counterparts to a highly significant statistical degree.

A study conducted by Professor Arthur N. Popper, the world's leading authority on the effects of noise on fish, concluded that the level of sound produced by the firing of the Navy's Mark 45 guns has the potential to adversely impact a wide range of marine species living in the Navy's training area of Vieques.

This Act intends to protect the health and welfare of the residents of the Commonwealth of Puerto Rico, extending the protection of our environment by prohibiting noise activities that results in a peals sound pressure level equal to or higher than 190 dB in the Waters of Puerto Rico, that were placed under our control by the Congress of the United States in 1917. In its Sections VII and VIII, Jones Act placed under the control of the Government of Puerto Rico "bodies of

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water and submerged lands underlying the same in and around the Island of Puerto Rico and the adjacent islands and waters" owned by the United States in 1917 and had not been reserved for public purposes.

Section 19 of Article VI of the Constitution of the Commonwealth of Puerto Rico establishes as the public policy of the Commonwealth, to conserve, develop and use its natural resources in the most efficient manner possible for the general welfare of the community. The report by the Commission which drafted this constitutional provision was clear about its purpose.

On the other hand, the Congress of the United States promulgated the Noise Control Act in 1972, in response to "a growing danger to the health and welfare of the nation's population" posed by "inadequately controlled noise." The Congress declared that "it is the public policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health and welfare." To implement this policy, the Congress assigned "primary responsibility for control of noise" to "State and local governments", and at the same time, required federal agencies to comply with state and local noise control requirements.

Therefore, the Commonwealth of Puerto Rico in the exercise of its jurisdiction, has determined as its public policy that it is necessary to eliminate certain sounds that may endanger the health and welfare of the People.

BE IT ENACTED BY THE LEGISLATURE OF PUERTO RICO:

Section 1.- Title This Act shall be known as "The Noise Prohibition Act of 2001." Section 2.- Statement of Public Policy The public policy of the Commonwealth of Puerto Rico is to promote an environment for all residents of the Commonwealth of Puerto Rico free from the noise that jeopardizes their health or welfare; assure that each generation of the

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people of Puerto Rico serves as a responsible custodian of the environment for the benefit of subsequent generations; guarantee to every Puerto Rican safe, salubrious, productive, and aesthetically and culturally pleasing landscapes and, within those waters that have been placed under the control of the government of the Commonwealth of Puerto Rico, also to guarantee to every Puerto Rican the same quality of seascapes; assure attainment of the fullest possible beneficial use of the environment that avoids its degradation and avoids creating health or safety hazards, or causing other undesirable consequences; preserve the important historical, cultural, and natural aspects of the heritage of the Commonwealth, and to maintain, an environment which offers selection, diversity, and variety to the individual.

Section 3.- Findings The Commonwealth of Puerto Rico finds that:

1. Published medical research have shown an association between long term exposure to high intensity and low frequency noise and adverse health effects in human beings that scientists have denominated Vibroacoustic Disease (VAD). Studies of both noise-exposed humans and experimental animals have shown that chronic noise exposure, in addition to cause hearing loss, may cause abnormalities of the cardiovascular, respiratory, nervous and immune systems, resulting in an increased incidence of hypertension, heart diseases, respiratory infections and cancers;
2. For more than a quarter of a century, residents of Vieques, Puerto Rico, have been chronically exposed to high intensity and low frequency noise as a result of United States Navy ship-to-shore Mark 45 gun training. Each of these shells travels at an initial velocity higher than 2.3 times the speed of sound, propagating sonic booms

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producing peak sound pressure levels at (and just above and below) the surface of the sea adjacent to the public beaches of Vieques. Such projected peak sound pressure levels exceed those recognized by scientists, and by the U.S. Navy, as the maximum to which human beings in and near water may safely be exposed. Navy measurements of sonic booms from its ship gun training taken in December of 2000 confirm that these peak sound pressure levels occur at extremely low frequencies, well below 500 Hz , the upper bound of the frequency spectrum that causes Vibroacoustic Disease, as stated in published medical researches. These United States of America Navy measurements indicate that these peak sound pressure levels are reached in the infrasound (below audible) frequency range - below 20 Hz - which recent medical research on Vibroacoustic Disease has determined is of greatest concern. A US Navy paper attached to a letter from Acting Secretary of the Navy Robert B. Pirie, Jr., to Governor Sila M. Calderón, dated April 11, 2001, also conceded that "the bulk of the energy from the boom is within the frequency band below 500 Hz ."; 3. Residents of Vieques, Puerto Rico, suffer from dramatically higher rates of cardiovascular disease, cancer, respiratory diseases and immune system disorders than the residents of other municipalities in Puerto Rico. Mortality due to hypertension among residents of Vieques is more than 300% higher than elsewhere in Puerto Rico, and cancer mortality is at least 30% higher. Within the past six months, studies of Vieques residents, utilizing the most advanced echocardiographic technology and designed to detect cardiovascular abnormalities typical of Vibroacoustic Disease, have shown a

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statistically significant higher incidence of such VAD abnormalities among residents of Vieques than among a matched control group; 4. The emission of sound from any source that transmits a peak sound pressure level into the Waters of Puerto Rico equal to or greater than 190 dB re 1 micro-Pascal at the surface of the sea may adversely affect the health or welfare of the people of Puerto Rico. Such sound may expose human beings in and near the Waters of Puerto Rico in an especially dangerous way to high-intensity and low frequency noise that may cause Vibroacoustic Disease. Navy training in the vicinity of the inhabited island municipality of Vieques is only one source of such noise. Such sound can also be generated in the course of marine seismic exploration surveys conducted by private companies engaged in offshore oil and gas exploration. Such companies typically employ seismic exploration devices such as air guns, vibroseis, sparkers, gas sleeves, exploders, and waters guns, which generate high- intensity and low frequency sound close to the surface of the water. A standard reference on the subject of marine noise, Marine Mammals and Noise by W. John Richardson et al., reports that a wide variety of airguns and airgun arrays generate sound pressure levels well in excess of 190 dB re 1 micro-Pascal (re $1 \mu \mathrm{~Pa}$ ). The Internet site for Schlumberger Limited, an oil-services company involved in marine seismic exploration, provides amplitude spectra for several types of airgun arrays that confirm that such devices generate low-frequency sound with a peak pressure level in excess of 190 dB re $1 \mu \mathrm{~Pa}$; and 5. This situation demands taking immediate precautionary action to protect all residents subject to the territorial jurisdiction of the Commonwealth of Puerto Rico from the potential adverse health

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effects of repeated exposure to harmful noise, and thereby to prevent irreparable harm to the public health and welfare, including but not limited to, the present and future health of the men, women, and children of Vieques. There is no known safe period of exposure to high-intensity and low frequency noise, and the effects of such exposure are cumulative over time. Therefore, the Government finds that any additional exposure of the people of Puerto Rico to such noise, for any period of time, may cause irreparable harm or exacerbate existing harm and would be contrary to the public interest. The Government finds, further, that by prohibiting the propagation of hazardous noise within the Waters of Puerto Rico, the natural resources, marine species, commercial and recreational fisheries and robust tourism industry of the Commonwealth will be protected and the welfare of all residents of the Commonwealth of Puerto Rico will be materially enhanced.

Section 4.- Purposes The purposes of this Act are to:

1. require the elimination of noise propagated within the Waters of Puerto Rico that are hereby deemed by this Act to be potentially harmful to public health or welfare or both;
2. preserve the fishing, tourism, recreational and commercial activities in the Waters of Puerto Rico that are important to the welfare of the residents of the Commonwealth of Puerto Rico;
3. in accordance with the preceding statements of motives, eliminate, to the greatest extent possible, noise pollution that this Act is hereby deems to threaten the health and welfare of the residents of the Commonwealth of Puerto Rico, while preserving the fishing, tourism,

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commercial, and recreational activity that is important to the welfare of the citizens of the residents of the Commonwealth of Puerto Rico; 4. in accordance with the above statements of motives, to strictly prohibit the source of activity that results in a peak sound pressure level equal to or higher than 190 dB re 1 u-Pa in water measured at any point within the Waters of Puerto Rico other than in the "Excluded Trade Routes," as the term is defined in Section V of this Act, according to the terms thereof; 5. provide terms for the measurement of sound pressure levels in the Waters of Puerto Rico; and 6. provide means to guarantee compliance with, and the enforcement of, the provisions of this Act.

Section 5.- Definitions For purposes of this Act the following terms are defined as stated below:

1. Board:

The Environmental Quality Board of the Commonwealth of Puerto Rico. 2. Decibel $(\mathrm{dB})$ :

A unit for measuring the amplitude of sound, equal to 10 times the logarithm to the base 10 of the ratio of the square of the pressure of the sound divided by the square of the reference pressure, which is 1 u-Pa in water. 3. Department:

The Department of Justice of the Commonwealth of Puerto Rico. 4. Emission:

Propagation of noise into the atmosphere or sea from any emission source.

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5. Emission Source:

Any object, device, or other sound wave-generating source. 6. Frequency:

Number of repetitions per unit of time of a complete wave form expressed in hertz $(\mathrm{Hz})$, in which 1 Hz is equal to one cycle per second. 7. Marine League:

Unit of distance equal to three (3) nautical miles, in which one nautical mile is equal to 1,852 meters or approximately 6,076 feet. 8. Noise:

Any sound that annoys or disturbs humans or marine life psychologically or physiologically. 9. Noise Pollution:

Any sound emission that propagates a peak sound pressure level in or into the Waters of Puerto Rico equal to or exceeding 190 dB re 1 u-Pa in water at any point in said Waters of Puerto Rico. 10. Noise Prohibition under this Act:

The prohibition set forth in subsection 2 of Section VI of this Act and any prohibition or requirement of any other statute, including but not limited to the federal Noise Control Act of 1972 (42 USC 4901 et. seq.), to the extent that a violation of subsection 2 of Section VI of this Act also constitutes a violation to such prohibition or requirement in another statute. 11. Person:

Any natural or juridical person, or private or public group of persons, including, but not limited to, any department, agency, instrumentality or public corporation of the Commonwealth of Puerto Rico and its

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municipalities and any department, agency or public corporation of the United States Government. 12.Sound:

An oscillatory phenomenon in which matter is set to vibrate so that its pressure and other characteristics are affected. The description of this phenomenon includes characteristics such as duration, wave amplitude, frequency, peak pressure level, and particle velocity. 13.Sound Baffling Material, Instrument, or Method:

Any object or process other than the ambient air or natural environment that may interfere with, alter, or mitigate the sound pressure level generated by an emission source. 14.Peak Sound Pressure Level:

Peak Sound Pressure Level equals $10 \log \left(\mathrm{P}{ ext {peak }} ight)^{2} /\left(\mathrm{P}{ ext {rel }} ight)^{2}$ 15.Sound-Generating Site:

Facility, place, site, or premise of origin of a sound wave. The soundgenerating site comprises all individual sound sources located within the limits of such property, such as fixed type, mobile, or portable. 16. Waters of Puerto Rico:

All navigable bodies of water and submerged lands underlying the same on and around the island of Puerto Rico and adjacent islands and waters that have been placed under the control of the Commonwealth of Puerto Rico that extend from the coastline of Puerto Rico and adjacent islands as heretofore or hereafter modified by accumulation, erosion, or reliction, seaward to a distance of three marine leagues. 17.Excluded Trade Routes:

Any portion of the Waters of Puerto Rico when such portion is used by a container, tanker, other commercial cargo-carrying vessel,

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tourism vessel, or by a vessel of the United States Navy, or by any other vessel, in transit through the Waters of Puerto Rico, for the sole purpose of passing through, and not for any other or additional purpose, such as conducting military training, weapons testing, or seismic exploration and research, the furtherance of which results in the emission of a sound either in air or in water which, at any time, for any duration, and at any frequency or range of frequencies, propagates into the waters of Puerto Rico a peak sound pressure level equal to or in excess of 190 dB re $1 \mathrm{u}-\mathrm{Pa}$, as measured at any point within said Waters of Puerto Rico.

Section 6.- Substantive Provisions

1. Scope of the Act

All the provisions of this Act shall apply to the Waters of Puerto Rico. 2. Prohibition

No person may cause or allow the emission of a sound either in air or in water which, at any time, for any duration, and at any frequency or range of frequencies, which propagates into the Waters of Puerto Rico, other than in "Excluded Trade Routes" as defined in Section 5 of this Act, a peak sound pressure level equal to or in excess of 190 dB re $1 \mathrm{u}-\mathrm{Pa}$, as measured at any point within the Waters of Puerto Rico. 3. Enforcement

(a) The Department is hereby authorized to initiate judicial proceedings against any person who has violated or may violate the noise prohibition under this Act in any court of the Commonwealth of Puerto Rico or in any federal court to obtain remedy. The Department shall not await for any action of the Board before initiating judicial proceedings against any person.

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(b) Upon proof that any person may violate the noise prohibition under the Act, the court shall issue a preliminary injunction prohibiting any violation to the noise prohibition under the Act.

(c) Upon proof that any person has violated or may violate the noise prohibition under the Act, the court shall issue a permanent injunction prohibiting any violation to the noise prohibition under the Act.

4. Exemptions

(a) Any person may request exemption to the prohibition under this Act to the Board. The Board may grant an exemption only if it determines that the petitioner, at the time of filing his/her request,

(i) is in compliance with the provisions of this Act and continues to comply with them while the exemption procedure is pending; and (ii) has demonstrated through clear and convincing, valid scientific evidence that such exemption from the prohibition shall cause no harm to human or animal life. The determination of the Board on a request for exemption shall be made after a preliminary hearing, which provides an opportunity to the petitioner and all other interested parties to present evidence. No exemption shall be granted to any person who violates the noise prohibition under this Act while he/she requests a an exemption to the Board.

(b) When an exemption from complying with the provisions of this Act is requested, the Board shall personally notify the Secretary of Natural and Environmental Resources, the Secretary of Justice, the Secretary of Health, the Mayors and Municipal Assemblies of the municipalities in which sound generating sites or sources of emission are located, and where any of the effects caused by such

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sources of emission are produced. A public notice shall also be published in two newspapers of general circulation on the Island for a period of three days. All these officials, as well as all interested parties who thus request it, shall have the right to participate in the preliminary hearings as parties in the process.

(c) Any person who has the right to request exemption, may also request to the Board an emergency suspension of the noise prohibition under this Act while the exemption process is pending. The Board shall rule on such request within 30 days. The petitioner as well as all interested parties shall have the right to appear and present evidence and argue. The Board may issue an emergency suspension only if the petitioner

(i) demonstrates by clear and convincing, valid scientific evidence that the suspension of the prohibition will not cause any harm to human or animal life while the exemption process is pending, and (ii) establishes that the petitioner would suffer irreparable harm if the prohibition remains in effect while the requested exemption process is pending.

(d) In the event the Board receives a request for an exemption or for an emergency suspension before it has adopted regulations to implement the provisions of this Section, the Board shall hear and decide upon the request according to the standards set forth in this Section as reasonably interpreted by the Board.

Section 7.- Procedural Provisions

1. Right of Entry, Inspections

The authorized representatives of the Board may seek a court order authorizing them to enter and investigate any sound-generating site or sound-emission source subject to the jurisdiction of the Board for the

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purpose of

(i) investigating and verifying compliance with the provisions of this Act; (ii) taking any peak sound pressure level measurements that the Board deems necessary to enforce this Act; or (iii) having access to books or documents related to any matter under investigation.

2. Records

The Board shall have the right to require the owner, caretaker, or operator, or any other party in control, of any sound-generating site or sound-emission source that propagates sound into the Waters of Puerto Rico to establish and maintain whatever records, and prepare whatever reports, the Board demands in the reasonable exercise of its responsibility of enforcing this Act.

3. Measurements

(a) The Board may require the owner, caretaker, operator, or any other party in control, of any sound-generating site or sound-emission source to measure the peak sound pressure level propagated into the navigable bodies of water on and around the island of Puerto Rico and the adjacent islands by the sound-generating site or sound-emission source.

(b) Any measurement taken in accordance with the provisions of this Act shall be conducted

(i) directly below and in front of the source of the sound, but in no event should the peak sound pressure level be measured at a distance greater than six meters in front of its source and in no event shall the sound pressure level be measured at any distance to the side of or behind its source; (ii) by a single hydrophone (re: $1 \mathrm{u}-\mathrm{Pa}$ ) in the water at the surface or just below the surface of the sea, but in no event shall the measurement be taken at a depth greater than 1 meter below the surface of the sea.

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(c) The use or presence of any sound-baffling material, instrument, or method in, on, or around the sound-generating site or soundemission source or between the sound-generating site or soundemission source and the measuring instrument at the time of the measurement of the sound pressure level that is not present and used in each and every instance whenever any sound is generated at such site or source, is hereby strictly prohibited.

4. Monitoring

The Board may require any sound-generating site or sound-emission source to install, operate, and maintain an accurate calibration monitoring equipment and keep them in good working order; and to prepare and remit to the Board periodical reports on the peak sound pressure level measurements recorded on such measuring equipment and on such tests of the accuracy of this equipment as the Board may determine is appropriate and satisfactory.

5. Permits

No permit shall be required under this Act for an emission of sound that does not violate the noise prohibition pursuant to this Act. 6. Regulations

(a) The Board is hereby authorized to adopt regulations for the implementation of the provisions of this Act pursuant to Act No. 170 of August 12, 1988, as amended, known as the "Uniform Administrative Procedures Act."

(b) Within two days after the promulgation of this Act, the Board shall remit copy thereof, along with a request for comments, to

(i) the American Petroleum Institute; (ii) the International Association of Oil & Gas Producers; (iii) Halliburton Company; (iv) the National

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Ocean Industries Association;

(v) the United States Navy; and (vii) any other person who, in the judgment of the Board, may have any interest in this Act.

7. Judicial Review

Any final determination of the Board pursuant to this Act, or to any rule or regulation promulgated thereunder, shall be subject to reconsideration and review, pursuant to the provisions of Act No. 170 of August 12, 1988, as amended, known as the "Uniform Administrative Procedures Act of the Commonwealth of Puerto Rico." 8. Sharing of Information

Upon request of the Department, the Board shall provide the same any information collected by the Board pursuant to this Act. The Board shall promptly inform the Department, if it becomes aware of any violation to the noise prohibition under this Act or if any person refuses to allow an inspection or provide information requested by the Board pursuant to this Act. 9. Enforcement of Procedural Provisions

(a) The Board may issue a notice of violation or summons and an order to cease and desist whenever it determines that any person is not in compliance with any of the requirements of this Section of the Act or with any regulations adopted by the Board to implement the requirements of this Section of the Act. The Board shall establish the procedures to be followed to issue notices of violations, summonses and orders to cease and desist through regulations.

(b) The Board is hereby authorized to impose monetary sanctions against any person who fails to obey any order to cease and desist

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issued by the Board pursuant to this Section of the Act. For the first offense the Board may impose a sanction of $250,000 up to $25 million. For the second or subsequent offenses the Board shall be authorized to impose a sanction of up to $250,000 up to $50 million. The Board shall establish the procedures to be followed in the imposition of fines through regulations.

(c) The Board may initiate judicial proceedings in any court of the Commonwealth of Puerto Rico or in any federal court

(i) to obtain a court order directing any person to comply with any of the requirements of this Section or any regulations adopted thereunder by the Board and (ii) to collect any monetary sanctions imposed by the Board pursuant to this Section.

(d) If the owners, caretakers, or operators, or any other party in control, of any sound-generating site or sound-emission source, or if their representatives or officials in charge, refuse to allow an inspection or to provide any information requested by the Board pursuant to this Section, the Department shall be entitled to a presumption that the sound-generating site or sound-emission source violates the noise prohibition under this Act in any judicial proceedings initiated by the Department pursuant to subsection 3(a) of Section 6. The presumption shall be rebutted only by clear and convincing evidence that the sound-generating site or soundemission source does not generate noises that violate the noise prohibition under this Act.

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Section 8.- Additional Provisions

1. Contradictory Provisions

In the event there is a conflict between the provisions of this Act, the provision that imposes the highest restriction on the emission of noise shall prevail. 2. Severability Clause

If any provision of this Act is declared illegal or unconstitutional by a court, such declaration shall not affect the remaining provisions thereof, since each provision shall be construed separate from all others. 3. Effectiveness

This Act shall take effect immediately after its approval. The Board and the Department may render effective the requirements and provisions of this Act against any person without awaiting the promulgation of regulations by the Board. All persons subject to the provisions of this Act shall comply with its terms immediately.

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CERTIFICATION

I hereby certify to the Secretary of State that the following Act No. 25 (H.B. 981) of the 1st Session of the $14^{ ext {th }}$ Legislature of Puerto Rico:

AN ACT to create "The Noise Prohibition Act of 2001," to eliminate noise pollution harmful to the public health or welfare of the residents of the Commonwealth of Puerto Rico; to determine through this Act noise pollution deemed harmful to the health and welfare of the residents of the Commonwealth of Puerto Rico, and to prohibit any activity source that produces levels of noise higher than the levels of noise established by this Act at any point of the waters of Puerto Rico, except for trade routes as so defined; and to establish sanctions, and for other purposes, has been translated from Spanish to English and that the English version is correct.

In San Juan, Puerto Rico, today $2^{ ext {nd }}$ of February of 2005.

Luis Fusté-Lacourt Director