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LESSON 4

ENVIRONMENTAL LAWS AND REGULATIONS

 

OVERVIEW

LESSON DESCRIPTION:

This lesson discusses the laws and regulations that impact Army training and operations and the fines and penalties that can be imposed on Army members for noncompliance.

TERMINAL LEARNING OBJECTIVE:

ACTION:

You will learn sources of laws and regulations that you must know to perform your missions while minimizing harm to the natural environment.

CONDITION:

You will be given the material contained in this lesson. You will work at your own pace and in your own selected environment with no supervision.

STANDARD:

You will correctly answer questions on the practice exercise at the end of the lesson.

REFERENCES:

The material contained in this lesson was derived from AR 200-1, AR 200-2, FM 3-100.4, TC 3-34.489, and TVT 5-56P1.

 

INTRODUCTION

Environmental issues are a major concern for the Army. With new laws and regulations, these issues continue to have a growing impact on Army operations. Violations of federal, state, or local environmental laws can result in both civil and criminal penalties. Soldiers and leaders must understand the laws and know what actions to take. They must also ensure that unit personnel are trained properly and meet all requirements. The environmental laws and regulations in this section are not all inclusive, but they represent those most applicable to soldiers. For further information about these and other laws, ask the chain of command or the installation staff judge advocate or environmental office.

4-1. Environmental Laws. There are four primary sources of environmental law: federal, state, local, and HN. These four sources have established laws and regulations to protect civilian and military communities and the natural and cultural environments from environmental degradation. Heightened environmental awareness by citizens and the federal government has led agencies to develop policies to support regulatory compliance and stewardship.

4-2. Federal Law. Federal laws are enacted by Congress and enforced by federal agencies such as the Environmental Protection Agency (EPA), the Department of Transportation (DOT), and the Army. Once an agency determines how to enforce the laws, it develops regulations. In this way, Army environmental regulations are based on federal laws. Soldiers should understand the following federal environmental laws. They affect many of the activities that soldiers perform each day.

a. National Environmental Policy Act (NEPA). The NEPA requires the Army to determine the environmental impact of proposed actions. If a proposed action will harm the environment, the Army must develop a plan to eliminate or minimize the damage. Soldiers comply with NEPA by—

  • Considering the environmental consequences of their actions.

  • Following environmental guidelines set forth in unit SOPs, installation regulations, and mission orders.

b. Resource Conservation and Recovery Act (RCRA). The RCRA governs how the Army identifies, transports, stores, and disposes of HM and HW. It places "cradle-to-grave" responsibility for HW on the personnel or units generating the waste. It also governs recycling and reusing nonhazardous material and waste. Used munitions can become a regulated HW in some cases. Soldiers comply with RCRA by—

  • Supporting the installation's recycling program.

  • Removing materials (expended brass, communications wire, concertina, booby traps, unused munitions, and propellant charges) from training sites.

  • Conducting police calls to collect and dispose of solid waste.

  • Collecting and turning in HW and HM according to unit SOPs.

  • Knowing what HM they use on the job or at home.

  • Knowing what HW they produce as they perform their jobs.

c. Clean Water Act (CWA). The CWA applies to facilities that place pollutants into bodies of water. The CWA affects groundwater, storm water, surface water (lakes, rivers, and streams), marshes, swamps, wetlands, coastlines, and navigable waterways (canals). Soldiers comply with the CWA by—

  • Disposing of chemicals, solvents, and HW properly. Never dispose of them in storm drains, sinks, toilets, or drains.

  • Washing vehicles in approved wash racks only.

  • Cleaning up spills in the work area immediately.

  • Reporting spills through the chain of command.

d. Clean Air Act (CAA). The CAA requires the Army to prevent, control, and/or reduce air pollution from nontactical vehicles, facilities, and operations. Soldiers comply with the CAA by—

  • Checking with the local environmental office before using gas or smoke.

  • Meeting state inspection standards for privately owned vehicles (POVs).

  • Observing local fire and burning restrictions.

  • Following local dust control guidelines on tank trails and range roads.

  • Keeping solvent vats closed when not in use.

  • Using paints and thinners correctly with proper equipment (paint application techniques and paint booths).

  • Maintaining and operating equipment (engines, boilers, and generators) properly to reduce air pollution problems.

  • Ensuring that air conditioning systems in POVs and government vehicles are serviced only by individuals who are properly trained and certified.

e. National Historic Preservation Act (NHPA). The NHPA safeguards against the loss of irreplaceable historical, archaeological, and cultural properties. The NHPA requires Army installations to identify and safeguard possible archeological and historical sites, artifacts, and structures. It also requires the Army to protect and preserve the historical sites located on its installations. Soldiers comply with the NHPA by—

  • Leaving historical and prehistorical artifacts and sites undisturbed.

  • Reporting the discovery of artifacts and sites to the chain of command.

  • Reporting vandalism, theft, and damage to historical, cultural, and archaeological sites.

  • Planning and conducting training, operations, and logistics activities to avoid damaging historical and archaeological sites.

f. Endangered Species Act (ESA). The ESA protects threatened and endangered plants and animals. Army installations often include natural areas that are the last remaining refuge for endangered plants and animals. Almost every military training area has some endangered species. Soldiers comply with the ESA by—

  • Recognizing signs and markers that indicate protected habitat areas.

  • Avoiding marked-off habitat areas during training and operations.

  • Following installation regulations for hunting, fishing, and camping.

  • Obeying range control guidelines for cutting brush and trees for camouflage.

g. Federal Facilities Compliance Act (FFCA). The FFCA allows the EPA and the states to inspect and fine Army installations that violate environmental laws identified in the RCRA. The FFCA also allows federal, state, and local environmental agencies to prosecute soldiers who knowingly violate environmental laws during the performance of their duties. Soldiers comply with the FFCA by—

  • Cooperating with the environmental inspectors.

  • Performing self-assessments of their work area to ensure that they are complying with environmental guidelines.

  • Informing their chain of command when they discover environmental problems.

h. Noise Control Act (NCA). The NCA promotes an environment that is free from noise that jeopardizes health or welfare. The Army must comply with all federal, state, and local requirements, respecting the control of noise unless doing so conflicts with the military mission. Soldiers comply with the NCA by—

  • Avoiding unnecessary noise.

  • Respecting noise buffer zones, minimum flight altitudes, no-fly zones, and nighttime curfews designated by the installation.

4-3. State Law. Each state has its own regulatory organization charged with developing and implementing environmental regulations. Most federal statutes allow states to set standards that are at least as stringent as federal requirements. When the EPA approves a state's program, the state has primary responsibility and authority for that particular program. Some state governments have additional environmental laws. Actions allowed by the environmental laws of one state may be illegal in another state. The installation environmental coordinator knows the state laws that apply to the installation. Soldiers must comply with federal, state, local, and applicable HN regulations.

4-4. Local Law. Local laws and ordinances address the concerns of the local communities. Generally, local laws will be based on federal and state laws. However, each municipality or community may place more stringent restrictions on certain activities. Noise restrictions during certain hours of the day are very common. It is highly unlikely that local environmental ordinances will extend to military installations, since most installations are not within municipal boundaries. However, the potential for conflict exists when installations are located close to cities and towns.

4-5. Host Nation Law. Many of the countries to which soldiers might deploy also have different environmental requirements. Army units in foreign countries must follow the environmental guidelines of the HN. When units deploy to other states or countries, leaders should inform them of changes in environmental requirements. Status of Forces Agreements (SOFAs) that permit or require standards other than those of the host country are considered part of the environmental pollution abatement standards. These apply to the Army in the host country or its jurisdiction. Apply AR 200-1 (with specific references to paragraph 1-24) and AR 200-2 to fulfilling outside continental United States (OCONUS) environmental protection requirements.

4-6. Environmental Penalties. Federal and state environmental regulatory agencies can impose penalties on the Army for violating environmental laws. These penalties include fines, increased monitoring and intervention by environmental regulators, and damage awards from lawsuits.

a. Soldiers should be aware of and understand environmental laws to ensure the installation or individuals on the installation do not incur any penalties. The local Judge Advocate General (JAG) office is best equipped to advise soldiers on exactly what must be done in a given situation to comply with the law. However, a basic understanding of legal principles will assist soldiers in making good decisions and working with legal counsel, if the need should arise.

b. A soldier who violates environmental law or allows others to do so can be prosecuted by military authorities under the Uniform Code of Military Justice (UCMJ) or in Federal District Court. If convicted of environmental violations, individuals can receive fines up to $50,000 per day of violations and imprisonment up to two years.

c. There are two ways to violate environmental laws and regulations: through negligence and through purposeful acts. Violations can subject military installations to fines and civil suits. Personnel should consult the local JAG office for the latest changes in or interpretations of laws and regulations. Violations of environmental laws, whether intentional or not, are treated the same by regulators and inspectors. Unintentional violations due to negligence can be prevented through training and education. Purposeful violations must be prevented by the chain of command and individuals' moral sense.

(1) Negligence. Negligent actions are careless, delinquent actions, and commanders, leaders, or supervisors must know about them. Supervisors are responsible for ensuring that soldiers perform their duties correctly. Therefore, if a soldier is negligent or careless, the supervisor is guilty of negligence even if the supervisor is unaware of the act. For example, assume the chain of command failed to ensure that all concertina or communications wire was collected and stored following a field exercise. The chain of command is responsible for damage or injury to personnel or wildlife that becomes entangled in or injured by the wire. Another example of negligence is failing to ensure that hazardous materials, such as solvents, are stored and accounted for properly. The chain of command is responsible for those containers when they leak and contaminate soil, groundwater, or nearby streams.

(2) Purposeful Acts. These environmentally damaging actions are deliberately directed or performed by a commander, leader, or supervisor who has full knowledge of the action's illegality. If someone deliberately performs or directs an action knowing that it is illegal, that individual is culpable or guilty. For example, if a supervisor directs a soldier to dispose of used parts in a pond located in a secluded part of the post, the supervisor has deliberately broken the law. Claiming ignorance is no excuse. The POL and the corrosion from the parts will contaminate the pond and eliminate its value as a source of drinking water, habitat, and recreation. Common sense dictates that this action was improper and reflected poor judgment on the part of the supervisor. The chain of command should prevent intentional violations to every extent possible.

d. Procedural and substantive requirements. Environmental legislation may contain procedural or substantive requirements, or both.

(1) Procedural requirements describe a procedure or method that must be followed to achieve a specified goal or policy. The NEPA, for instance, specifically requires that federal decision makers follow certain procedures to document their consideration of environmental effects of actions. If a procedural requirement is violated, the penalty may be an order to halt the proposed action or project until the prescribed procedure has been followed to the satisfaction of the court. There is no direct fine or prison term imposed; however, there may be an indirect monetary cost associated with delays to the project and efforts to quickly comply with the procedural requirement.

(2) Substantive requirements define rights and restrictions. A typical substantive requirement would be limiting allowable discharges of air or water pollutants under the terms of a permit. For example, the permit required under the CWA for discharging pollutants into surface waters limits the quantities of various pollutants in water on a daily, monthly, or annual basis.

(3) If a military installation is found guilty of violating a substantive requirement, it may be fined or issued a directive from the regulatory agency to halt the polluting action immediately. If a knowing and willful violation of any criminal prohibition within the law can be proven, larger fines and permanent shutdown can be imposed. If an individual commits such a criminal violation, a personal fine and/or prison sentence can be imposed just as with any other type of criminal case.

(4) Several military installations have received fines or stop-action directives for substantive violations, primarily from state authorities. Such directives were levied, by name, to the individual who signed the permit, usually the installation commander. Fines were normally paid from the installation's operating budget. An installation can sometimes negotiate for reduced fines based on corrective actions taken or scheduled after the regulator first proposes them.

(5) Military and civilian employees of the Army have had adverse career actions taken by their employers for causing violations against the installation. Some federal employees have received criminal indictments for violating environmental laws. The Army cannot defend the employee against federal charges.

(6) Regulatory agencies are becoming more aware of their authority and more familiar with how to use the laws and courts to enforce environmental laws. Most will not hesitate to use their authority regarding military installations. If they are convinced that the installation is making a good faith effort, most regulators will allow an installation a reasonable amount of time to comply with substantive requirements. Similarly, command emphasis is necessary to ensure that such a good faith effort actually occurs.

e. Lawsuits against the Military. The legal doctrine of sovereign immunity states that the government can only be sued with its own consent. This doctrine has its foundation in the English common-law idea, which states that a king cannot break a law, since he is the lawmaker in the first place.

(1) Recent court decisions have noted significant exceptions to this doctrine. Environmental suits may be brought against a government official alleging that he or she has acted as an individual and not in an official capacity or alleging that the official has exceeded statutory authority. Congress probably intended that the Administrative Procedures Act, as well as a number of other statutes, subject some actions of government officials to judicial review.

(2) Most environmental laws have clauses that specifically waive certain sovereign immunity privileges. Generally, federal organizations are subject to the agency that has the permit management and enforcement authority for a particular environmental law in that organization's geographical area. For instance, under the CWA, individual states are allowed to issue and monitor permits for the discharge of pollutants into surface waters. The EPA has relinquished this authority to the state. A military installation must obtain the necessary permits from the state, submit reports to the state, and comply with all state-imposed effluent limitations.

(3) States may impose sanctions, such as fines, against federal polluters only to the extent that Congress allows. States can fine federal agencies for air permit and HW violations.

f. Citizen Suits. Traditionally, if a citizen wanted to sue the government or one of its officers, a case or controversy had to exist, and that person had to have a personal stake in the outcome. This situation usually arises when the individual was injured or could show economic damages. However, the courts have recently said that a person's interest or stake in the outcome could be aesthetic, conservational, or recreational. Most environmental laws authorize citizens to sue the US or any other violator of these acts. To exercise this right, the citizen must provide a 60-day notice to the alleged polluter, the EPA, and the state. The citizen's cost of litigation can be reimbursed if the court upholds the allegation.

4-7. Summary. Army environmental regulations are based on federal laws. State and local environmental laws apply to the area where soldiers live and work. When soldiers live in a foreign country, HN laws also apply. The Army will obey all environmental laws that apply to its installations, and the Army expects soldiers to do the same.


Practice Exercise

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