The receipt, negotiation and resolution of environmental enforcement actions.
|Risley, F. Scott
Every major environmental statute designates one or more federal agencies to administer and enforce the requirements established in the statute and implementing regulations. (1) Most statutes designate the U.S. Environmental Protection Agency (EPA) and also allow states to enforce requirements established under EPA's delegated program. (2) Regulatory agencies inspect facilities to evaluate compliance and, when the regulator determines that a violation has occurred, it has the discretion to issue an enforcement action. Such enforcement actions not only specify the offending act or omission, but usually outline the criteria under which the violation may be cured, and frequently assess penalties. (3)
The consequences of an enforcement action may be far-reaching for the installation, Air Force, and the Department of Defense because it may set precedent concerning the resolution of similar enforcement actions, impact funding and resources, influence public perception of military activities, affect ongoing or future litigation, and provide a basis for the regulator to impose a greater fine for future violations. Consequently, it is essential that installation environmental attorneys be involved with all aspects of each enforcement action and coordinate, as appropriate, with the Major Command (MAJCOM) and Regional Counsel Offices (RCOs). (4) The environmental attorneys must work closely with the installation organizations usually the Civil Engineering Squadron to appropriately and timely respond to all enforcement actions. This article provides basic information covering the management of enforcement actions from their receipt to closure.
RECEIVING AN ENFORCEMENT ACTION
Appropriate reporting of and responding to enforcement actions requires environmental attorneys to understand the various notifications that constitute an enforcement action. This first section examines what is and is not an environmental enforcement action, addresses two particularly thorny issues related thereto, and reviews enforcement action reporting requirements.
What Constitutes an Enforcement Action
Air Force Instruction (AFI) 32-7047, Environmental Compliance Tracking and Reporting, (5) defines an Enforcement Action (EA) (6) as "[a]ny written notice from a federal, state, district, county or municipal regulatory agency indicating one or more violations of environmental statutes or regulations including warning letters, notices of violation or noncompliance, administrative orders, and consent orders." (7) An EA must be in writing. Oral communications do not constitute EAs. An EA must be issued under the auspices of a governmental body that has the authority to enforce environmental requirements within its jurisdiction. Finally, an EA must assert that the acts or omissions of the Air Force have violated one or more provisions of a codification of environmental requirements that the EA's issuer has authority to enforce. From a due process perspective, the EA must put the Air Force on notice of the alleged violation with sufficient specificity to allow the Air Force to ascertain its possible culpability and formulate a response.
There is no universally recognized nomenclature for these notifications of environmental violations. The AFI provides several examples: "warning letters, notices of violation or noncompliance, administrative orders, and consent orders." This list is not exhaustive, but is merely representative of some of the most commonly-used captions.
Notably, AFI 32-7047 places no qualifiers on the intended recipient. Within the very broad parameters of reasonableness, an EA can be addressed to most anyone in a position of responsibility at the alleged offending facility.
Such recipients could include, but are not limited to, the wing commander, the staff judge advocate, the base civil engineer, or even the superintendent of an installation's waste-water treatment plant or the manager of its haz-mat pharmacy.
No Harm, No Foul No NOV? No Way!
There are constant attempts by those who are regulated to constrict what does and does not constitute an EA. The most common reoccurring example is the wishful belief that if the violation the EA addresses is remedied within a prescribed period of time (such as same month, same day, or before the written notification is received), it is not really an EA. When an inspection is conducted, the resultant EA is frequently not issued for several days, weeks, or even months. For minor violations, this time lag often allows sufficient opportunity for the facility to return to compliance within a short time after, or perhaps even before, the EA is issued. This "no harm, no foul, no NOV" approach often results in the erroneous conclusion that there has been no violation. Regardless of when a facility is returned to compliance, an EA is still an EA if it meets the above-discussed AFI 32-7047 criteria.
Just as the regulated community likes to narrowly construe EAs, regulators often cast as broad an EA net as possible, issuing a loosely defined category of EAs often referred to as "parking tickets." For example, during a multi-media inspection at one Air Force base, the inspector produced a preprinted pad with "Notice of Violation" emblazoned in large letters across the top, under which a laundry list of commonly violated regulatory provisions were enumerated. Before leaving the facility, the inspector had issued 15 of these "NOVs," most of which were cured before the ink in the check-marked columns or his signature at the bottom of the page had even dried. Nevertheless, employing a strict application of AFI 32-7047's definition, these "speeding tickets" qualified as EAs. They were a written communication from a state regulator indicating one or more violations of a specified environmental regulation.
Not all EAs are created equal. Whether the EA covers a minor violation with no costs associated therewith, or addresses many major violations and assesses a penalty in the millions of dollars, it is still an EA and must be reported....
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