EN5707 LESSON 2

LESSON 2

ENVIRONMENTAL LAWS AND REGULATIONS

OVERVIEW

LESSON DESCRIPTION:

In this lesson, you will learn about the sources of environmental laws and regulations that impact upon the Army. You will also examine how Army operations can violate these laws and what penalties and liabilities are assessed for environmental offenses.

TERMINAL LEARNING OBJECTIVE:

ACTION:	You will list and discuss the purposes of seven federal environment laws. You will list and discuss the four types of environmental laws and regulations affecting soldiers and installations. You will also describe what kinds of penalties are assessed for violating environmental laws and explain sovereign immunity.
CONDITION:	You will be given the material contained in this lesson.
STANDARD:	You must complete the lesson and the practice exercise.
REFERENCE:	The material contained in this lesson was derived from AR 200-1 and TC 20-401.

INTRODUCTION

Environmental protection is a complicated subject. Not only does it use scientific concepts, but environmental laws are being written and changed daily. Consult your local judge advocate general (JAG) office for the latest changes or interpretations. It is important that you understand there are two basic ways to violate environmental laws and regulations-through negligence or purposeful acts.

Negligent acts are environmentally damaging actions of which a commander, leader, or supervisor should have had knowledge. For example, the chain of command fails to ensure that HM, such as solvents, are stored and accounted for properly. As a result, some containers leak and contaminate the soil and nearby streams.
Purposeful acts, on the other hand, are environmentally damaging actions that are deliberately directed or performed by a commander, leader, or supervisor with full knowledge of the action's illegality.

The penalties assessed against installations are generally the same for negligent acts as they are for purposeful acts. However, military personnel can be held personally liable for purposeful acts.

2-1. Environmental Laws. There are seven federal environmental laws that you should understand, because they affect many of the activities you perform each day.

a. The National Environmental Policy Act (NEPA) was passed in 1969.

(1) Purpose. The NEPA requires the Army to determine the environmental impacts of proposed actions. If the proposed action will harm the environment, the Army must develop a plan to eliminate or minimize the damage.

(2) Requirements. Unit leaders must-

Consider the environmental consequences of their actions.
Follow-

- Environmental guidelines set forth in the unit's standing operating procedure (SOP).

- Installation regulations and mission orders.

Identify-

- The areas of environmental concerns.

- The mission-related environmental risks.

- The potential of environmental factors on the mission and operations.

- The alternative training scenarios and techniques.

Discuss the environmental risks in training meetings and briefings.

b. The Resource Conservation and Recovery Act (RCRA) originated in 1976; the first implementing regulations were promulgated in 1980. The RCRA was reauthorized in 1984 with major additional regulations.

(1) Purpose. The RCRA governs how the Army identifies, transports, stores, and disposes of HM and HW. The RCRA places cradle-to-grave responsibility for HW on the personnel or units generating the waste. It also governs recycling and reuse of nonhazardous materials and wastes.

(2) Requirement. Unit leaders must-

Ensure that the unit's-

- SOP covers HW and HM, including spill contingencies.

- Environmental-compliance officer/noncommissioned officer (NCO) is properly trained and that training documentation is on file.

Collect and turn in HW and HM according to local and installation procedures, both in garrison and in the field.
Cleanup, report, and document any hazardous spills properly.
Transport HW according to local and installation procedures.
Report the location of any unexploded ordnance.
Conduct maintenance involving HM only after being trained.
Maintain a current HM inventory and a material safety data sheet (MSDS) for every HM in the unit.
Support the installation recycling program.
Remove materials such as expended brass, communications wire, concertina, booby traps, and propellant chars from training sites.
Conduct police calls to collect and dispose of solid-waste materials (trash).
Collect and turn in HW and HM according to the unit's SOP.
Know what-

- HM are used on the job or at home.

- HW are produced by unit personnel as they perform their jobs.

c. The Clean Water Act (CWA) was passed in 1972 and amended in 1977.

(1) Purpose. The CWA applies to facilities that put pollutants into bodies of water. The CWA affects groundwater, storm water, surface water (lakes, rivers, and streams, marshes, swamps, wetlands, coastlines, and navigable waterways.

(2) Requirements. Unit leaders must-

Know the locations of surface water and groundwater.
Plan and conduct training, operations, and logistics activities-

- To avoid surface water and groundwater areas.

- Without contaminating or causing unnecessary damage to wetlands or coastal water areas.

Cross streams and ditches only at designated vehicle crossings.
Ensure that soldiers-

- Use designated vehicle wash areas and do not perform maintenance or refuel vehicles or equipment where a spill can easily contaminate surface water or groundwater.

- Do not pour chemicals into sinks or storm drains.

Report all spills/releases to the chain of command according to the installation spill contingency plan (ISCP).
Dispose of liquid waste from kitchens, showers, and baths properly.
Avoid entering terrain drainage areas with vehicles unless the area is dry and the ground will support such activities.
Avoid tactical maneuvers in erosion-susceptible areas and refill fighting positions.
Ensure that soldiers use designated vehicle wash areas and do not perform maintenance or refuel vehicles or equipment in wetlands or coastal-water areas.
Verify range restrictions with range control.
Brief soldiers on environmental and safety considerations before field training.
Never pour chemicals, solvents, or HW into storm drains.
Never improperly dispose of chemical, solvents, or HW in sinks, toilets, or drains.
Clean up spills in the work area immediately.

d. The Clean Air Act (CAA) was passed in 1970 and amended in 1977 and 1990.

(1) Purpose. The CAA requires the Army to prevent, control, and/or reduce air pollution from nontactical vehicles, facilities, and operations.

(2) Requirements. Unit leaders must-

Advise the chain of command about air-pollution sources.
Identify and correct sources of air pollution (dust control in training areas, excessive exhaust emissions from poorly maintained vehicles, and so forth).
Use riot control and smoke agents only in approved training areas.
Meet state inspection standards for their privately owned vehicles (POV).
Observe local fire and burning restrictions.
Follow local dust-control guidelines on tank trails and range roads.

e. The National Historic Preservation Act (NHPA) was passed in 1966.

(1) Purpose. The NHPA seeks to help safeguard against the loss of irreplaceable historical, archeological, and cultural properties, especially those on federal lands. The NHPA requires Army installations to identify, protect, and preserve possible archaeological resources, historical sites, artifacts, and structures that are located on its installations.

(2) Requirements. Unit leaders must-

Identify and recognize possible historical and archeological artifacts, sites and structures.
Plan and conduct training, operations, and logistics activities to avoid damage to historical and archeological artifacts, sites, and structures.
Instruct soldiers to leave historical and archeological artifacts in place and to report newly discovered items to the chain of command.
Report the discovery of historical and archeological artifacts, sites, and structures to the chain of command.
Report vandalism, theft, and damage to historical and archeological artifacts, sites, and structures.

f. The Endangered Species Act (ESA) was passed in 1973.

(1) Purpose. 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.

(2) Requirements. Unit leaders must-

Avoid-

- Actions that could harm protected plants and animals or their habitats at the installation or any off-post training areas.

- Damage to marked wildlife food plots or watering areas.

Recognize threatened or endangered species habitat and avoid them during training, operations, and logistics activities.
Mark environmentally sensitive areas as restricted-movement areas during field training.
Consult with the environmental office for other local requirements relating to wildlife and natural vegetation.
Avoid-

- Cutting branches and trees for camouflage.

- Marked-off habitat areas during training and operations.

Comply with the installation endangered-species management plan.
Recognize signs and markers that indicate protected habitat areas.
Follow installation regulations for hunting, fishing, and camping.
Obey range-control guidelines for cutting brush and trees for camouflage.

g. The Federal Facilities Compliance Act (FFCA) was passed in 1993.

(1) Purpose. The FFCA determines how environmental laws affect military installations. It allows regulatory agencies such as the Environmental Protection Agency (EPA) to impose civil fines and administrative actions on other federal agencies, including the Army, for solid-waste and HW violations.

(2) Requirements. Unit leaders must-

(a) Comply with local and installation environmental laws.

(b) Know that states have authority to impose fines on agencies and departments and impose criminal penalties on their personnel.

(d) Perform self-assessments of their work area to ensure that they are complying with environmental guidelines.

(e) Inform their chain of command when they discover environmental problems.

2-2. Environmental Laws Affecting Soldier's Actions. Soldiers should understand that there are basically four types of environmental laws and regulations that affect installation environmental policy. These are HN, federal, state, and local laws. Army installations do not make up the rules that they must follow. The US Congress enacts laws to address environmental problems that citizens express concern over. The departments and agencies of the federal government then carry out these laws. Additionally, state and local governments enact environmental laws. US Army installations are subject to federal, state, and local environmental laws. Installations located in foreign countries must obey HN laws. It is important for soldiers and their leaders to understand that environmental policies will change from one installation to another, depending on the applicable laws. Although it may be confusing, there are reasons that installation policies differ. Because of these differences, it is also important that soldiers know how to determine the installation's environmental policies.

a. Host-Nation Laws. Outside the continental US (OCONUS), installations must respect and obey the environmental laws of the HN in their daily operations. In most instances, the agreements that allow installations to exist on foreign soil require that the installation comply fully with the HNs environmental laws and policies. One problem with this is that many HN standards and laws have not been translated into English and may not be available to US personnel. Also, in some countries (such as Japan and Korea), environmental standards are much lower than in the continental US (CONUS). Other countries (such as Germany) have much higher standards. US federal guidelines and laws will be followed to the maximum extent possible in HNs with low standards.

b. Federal Laws. The federal government enacts and carries out environmental laws as follows:

(1) The Constitution provides the legal basis for US government agencies.

(2) Congress provides direction for the armed forces by federal statutes.

(3) The President provides directions to the US military forces through executive orders.

(4) DOD provides direction to installations by directives and instructions.

(5) Various agencies develop regulations when authorized by Congress. These regulations are published in the Federal Register and then printed in the Code of Federal Regulations (CFRs). The EPA is the primary federal agency regulating pollution control on military facilities.

(6) US courts affect military installations by their decisions. These could be injunctions (prohibitions against action), court orders, final decisions, or settlement agreements.

(7) Department of the Army (DA) provides guidance to installations through ARs.

c. State and Local Laws. State environmental laws, regulations, and administrative orders also apply to installations. Given the regional differences of these laws, soldiers need to understand that what was environmentally permissible at one installation may not be permissible at another. For example, many installations in the lower 48 states allow soldiers to dig "cat-hole" latrines but installations in Alaska do not.

2-3. Enforcement by Federal and State Agencies.

a. Federal Administrative Agencies. The executive branch of the government functions through a system of administrative agencies. The rules, regulations, and general orders of these agencies (EPA, for example) have the force and effect of law. An agency, through its regulations, may implement a statute but may not weaken it or be in conflict with it. An administrative agency may not invoke penalties or criminal liability unless specifically directed to do so by statute. Enforcement of a pollution-control statute by the EPA, for example, would typically follow this sequence:

(1) First, EPA inspectors find some problem during an inspection. EPA then notifies the installation of the deficiencies and requests correction. If a second inspection indicates that corrections have not been made, EPA issues a notice of violation (NOV). EPA will require the installation to correct the defects within 30 days. An unsatisfactory response might lead EPA to issue an administrative fine and/or a formal compliance order. The installation would then have to negotiate a compliance schedule. This schedule plans for corrections over an extended time frame without fines (or without further fines). Figure 2-1 shows what could happen if corrections are not made.

Figure 2-1. Convictions

(2) Continued failure to correct the problem might lead EPA to turn the matter over to the Justice Department for prosecution. In court, a judge could issue an injunction against continuation of the polluting activity, devise a compliance schedule that EPA would agree to, or assess fines.

(3) Most environmental laws provide for large fines that may be assessed per violation per day. Therefore, pollution can become extremely costly to installations that avoid correcting problems.

(4) EPA does not usually fine federal agencies or turn them over for prosecution. Instead, EPA will attempt to negotiate a compliance agreement. Appropriating funds to correct pollution-control problems usually takes several years, and having one federal agency sue another would just waste those funds.

b. State Enforcement. Primacy is attained when a state demonstrates that it can control pollution as strictly as the federal government would do. This authorizes the state to conduct inspections and enforce environmental laws. All the methods of enforcement for the EPA are then available to the states.

(1) Unlike EPA, however, states have no procedural or organizational reasons not to enforce action on federal facilities. Therefore, a state may issue NOVs, compliance orders and schedules, and fines. They can also sue a federal agency as long as the original waiver of sovereignty in the federal law allows it. Remedies available to states vary, depending on which law is involved. For example, a state can fine a specific military installation for continuing, but not past violations under the CAA. CAA applies to continuing violations only.

(2) Under the RCRA, a state can only enforce requirements on military installations by taking the matter before a judge. The law suggests that judges may issue compliance orders or schedules and even shut down the activity until corrections are made.

2-4. Penalties. Violating a procedural law may result in an order to stop the action or project until the procedure is followed correctly. There is no direct fine and no prison term imposed.

a. Local, State, and Host-Nation Environmental Laws.

(1) Some state and local governments have additional environmental laws. Actions that are allowed by the environmental laws of one state may be illegal in another state. The installation environmental coordinator (EC) knows what state laws apply to your installation.

(2) Many of the countries that you might deploy to 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, your leaders should inform you of changes in environmental requirements.

b. Environmental Penalties.

(1) 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.

(2) If you violate environmental laws or allow others to do so, you may be prosecuted by military authorities under the Uniform Code of Military Justice (UCMJ) or in Federal District Court.

(3) If you are convicted of environmental violations, you may receive fines up to $25,000 per day of violation and imprisonment of up to 15 years, see Figure 2-2.

Figure 2-2. Penalties

2-5. Sovereign Immunity. Litigation directed against a defense agency or one of its agents may be barred by the doctrine of sovereign immunity. The courts maintain that public hires the government to pass lawful, constitutional actions or lawfully made discretionary decisions. Therefore, someone who objects to such actions or decisions, must get Congress to change the law. Exceptions are-

a. Federal Tort Claims Act. Military installations cannot claim immunity in environmental matters if an injury occurs. In some cases, when fault is obvious, the military claims office may settle out of court rather than pay for an expensive trial. Noise nuisances often fall into this category. For example, if noise from low-level aircraft overflights have clearly caused a farmer's chickens to stop laying, the farmer has suffered an injury and is allowed to sue.

b. Administrative Procedures Act. Government officials (including military personnel) may be subject to personal suits. The Administrative Procedures Act, enacted in 1948, provides for two exceptions in which military personnel are not protected from suit. The first is when they act beyond their statutory powers, and the second is when the powers themselves are shown to be constitutionally void. Thus, environmental suits may be brought against an official alleging that he acted as an individual and not as a government official, that the power conferred on the official was unconstitutional, or that the person exceeded his authority.

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Lesson 2 Practice Exercise
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