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Like it or not, today’s armed services are operating in a •lew world. In this era of •ncreasing environmental concern and diminishing resources, the Navy cannot afford the time and cost of environmental noncompliance. In 1991, public reaction to an incident involving the dumping of plastic trash at sea by sailors on a U.S. Navy ship resulted in a flag officer’s appearance before a congressional committee to explain the ship’s waste-management program.
Environmental concerns allecl fl every aspect of readiness. Permit I and consultation requirements With federal and state environmental regulatory agencies affect the training and mobility of operational forces. —i*Mg|| SgL
Shore stations all have substantial en- vironmenlal compliance responsibilities *
•hat they must meet to continue fleet maintenance. One of the greatest impacts, however, has been the concern of our commanders that they or their people could be personally liable for environmental violations.
Environmental compliance as a command responsibility is well settled. Failure to meet that responsibility increases the risk of liability.1 Most commanding officers perceive that the risk is often one of criminal prosecution, and that prosecutions can be initiated foi the actions ol their subordinates. Most know that in prosecutions toi environmental crimes, the Navy or even the federal government rarely will provide legal representation. Not many officers, however, understand the exact scope of liability, what types of cases have been prosecuted, and what a commander can do to meet the environmental challenge.
There are three generally recognized sources of potential liability for environmental damage or wrongs:
► Traditional tort liability
► Civil liability derived from causes
^ - of action put forward in the statutes
themselves
► Criminal liability Personal liability under traditional tort
theory is based on the plaintiff's need to be recompensed by a defendant for harm caused by the defendant’s negligence. For federal employees, however, there are significant limits on personal liability under traditional theories. The United States usually will be substituted as the defendant in suits against employees of the United States acting within the scope of their employment.’ This is familiar ground to most com- j mand legal counsel, and also presents the least risk of personal liability for environmental damage.
■^1 The individual protection that is avail- .^*2 able for tort liability suits is not, how* ever, available for suits seeking civil li- ability arising from a statutory cause ol action, such as a noncompliance penalty assessed against a commanding
COJRI63Y OF WRAL-TV. RALEIGH NC 0ffjCer en V i TOn IT^ tal 0131^6!'.
The good news is that the major environmental “media” statutes, the Clean Air Act, Clean Water Act, and hazardous waste management statute, the Resource Conservation and Recovery Act (RCRA), expressly protect individuals acting within the scope of their official duties from civil penalties. Also, at present the Environmental Protection Agency (EPA) does not seek civil penalties against federal employees. Thus, while commanding officers face the theoretical potential for personal civil liability from both traditional tort sources and specific statutory violations of environmental laws, as a practical matter this risk is quite low and likely to remain so as long as the
41
Proceedings / August 1993
commander’s actions are within the scope of his employment. However, such is not the case when contemplating criminal liability.
Environmental criminal law represents “one of the most extraordinary legal growth areas” of recent times.4 The EPA and state regulatory agencies are increasing their enforcement efforts. The bottom line is very clear: Regulatory agencies expect the commander to know and comply with environmental laws. Both cases of direct knowledge and willful ignorance or neglect can result in liability: A supervisor or commander can be held liable without actually turning the valve.5 Even though enforcement efforts are increasing, however, the news is not all bad. First, the offenses for which agencies actually have brought prosecutions tend to be the egregious cases. Second and most important, the cases demonstrate that the risk is manageable: Command attention can ensure that environmental personnel both learn and deliver what is expected of them. A review of some of the cases brought against DoD employees may help put the possibility of criminal liability in perspective.
► United States v. Dee: This is the Aberdeen case, the first criminal action taken against employees of an armed force for environmental crimes. The three top civilian managers of the U.S. Army Chemical Research and Development Command at Aberdeen Proving Ground were convicted of multiple hazardous-waste-management violations during the 1983-86 period. After being informed of hazardous conditions at the proving grounds, the defendants continued dumping dangerous chemicals into leaking toxic sumps and storing unlabeled and broken chemical containers in a dilapidated shed. The U.S. Attorney did not seek prosecution of the commanding general because there was insufficient evidence to prove that he knew of the violations. The defendants were sentenced to three years probation and 1,000 hours of community service.6
>• United States v. Bond: This case involved a trained supervisor at the San Diego Naval Station. He pled guilty to negligent discharge of pollutants in violation of the Clean Water Act. Mr. Bond illegally discharged radiator fluid contaminated with antifreeze into a storm drain that ended up in Chollas Creek. The court sentenced him to one year of probation and a $500 fine.7
► United States v. Curtis: The former fuels officer of Adak Naval Air Station was convicted in March 1992 of knowingly discharging 500,000 gallons of heating oil into the waters of the United States in violation of the Clean Water Act, and in May 1992 was sentenced to ten months in prison. Navy records show closer to 1.5 million gallons lost, but the figure of 500,000 was all that could be proved in court. At one spot, a leak caused fuel to bubble up from the ground whenever the fuel transfer main was pressurized. Subordinates repeatedly told the fuels officer of the suspected leak and at one point took him out and showed it to him. No alternatives to pressurizing the mains were pursued until the commanding officer heard of the problem and directed that the fuel be trucked instead of pumped.8
► United States v. Woodward: In Charleston, a petty officer third class recently stood trial by court-martial for improper disposal of hazardous material in an off-bas® dumpster. He was convicted of making a false offic'a statement and wrongful disposition of government pr°P" erty. The hazardous material included dry cell batteries- one container of silver nitrate, two containers of molyb denum sulfide, six containers of aircraft engine oil, 0Iie container of mercury, and one magnesium battery. The sailor disposed of them in a local dumpster after deciding that completion of the Defense Reutilization and Mar' keting Offices paperwork was too hard. The Navy retained jurisdiction, and a special court-martial awarded a forfei' ture of pay, 75 days confinement at hard labor, and reduction of two pay grades.
These cases are representative of those brought against federal employees, and indicate that a district attorney does not make a decision to prosecute on a whim. A pr°s' ecution is often a last resort, and to date has been invoked only for the most egregious of violations. Thus, while the risk is real, it is manageable. The commanding officer has a considerable number of tools at his disposal to effect environmental compliance.
The first tool, and perhaps the most powerful, is one that the commanding officer most completely controls'" personal involvement. Those commanding officers who obviously care about compliance and are involved in their stations’ environmental programs will receive the benefit of the doubt from the regulators—leaving them free to complete the mission. The commanding officer should promote a philosophy that environmental compliance is a part of the mission, and establish a team across the organization that can bring a multidisciplinary approach to environmental issues. The core members of the team will be the commanding officer and executive officer, the environmental programs manager, and staff legal counsel; the team also should include the public affairs officer (PAO)> the comptroller, the operations officer, and the civil engineer. The commanding officer should ask for periodic briefs of the station’s compliance status, and should be familiar with command responsibilities.9 Commanders should make it clear that the standard is compliance, and that attaining that standard will be an all-hands effort.
All personnel in the chain of command, not just the commanding officer, should insist on accountability f°r environmental compliance. The majority of the discrepancies identified in the Atlantic Fleet Environmental Compliance Evaluations during 1991 were administrative—incorrect labeling, incorrect storage, and similar, easily corrected and easily prevented violations.10 Such performance in any other mission-critical area would be unsatisfactory, and so should it be in the environmental compliance world. Administrative measures such as investigations pursuant to the Manual of the Judge Advocate General and zone inspections are useful. If commanders must resort to disciplinary measures, they should recognize that the idea of a supervisor’s liability is not new to the armed forces. Dereliction of duty uses essentially the same theory.11
Staffing and training personnel also will require longterm attention. Commanders must actively request necessary billets, and take them out of hide now, if neces-
gional Environmental Coordinator (REC): ^ag officers who have as one of their functions the coordi- uation of positions of cornmon Navy interest with the environmental agencies. A central point of contact and consistent Navy positions are crucial to successful dealings with the regulators. The REC’s r°le is to facilitate the interaction between the command and the regulator. The REC’s function, however, is information and coordination, not compliance.12
The commanders should use their REC Under the following circumstances:
* New or unusual Permit conditions, which generally will come up in permit re
fees13) and for evaluation of its reasonableness.
> The REC should review proposed fines or penalties, because not all statutes waive sovereign immunity for federal facilities.
► Freedom of Information Act requests, such as requests for copies of a station’s Environmental Compliance Evaluation (ECE) or receipt of and responses to notices of violation (NOVs), should be coordinated with the REC, as should any comments on proposed state laws or regulations.
A third tool is the command’s relationship with the regulatory community. A
By Patrick Pexton
Times Staff Writer
WASHINGTON—A spill of about 500,000 gallons of jet fuel at Naval Air Station Adak,
Alaska, has led to one of the stiffest sentences yet for a Navy employee found guilty of violating environmental pollution laws.
°j0hn Hoyt Curtis, formerly the civilian director of the fuels station at Adak, was sentenced to 10
ft. federal Clean W„=r Act He was tried in federal court in Anchorage. . . .
tie W as REPRINTED WITH PERMISSION NAVY TIMES
John H. Curtis was convicted under the Clean Water Act and its pollution permit provisions. In order to dump any hazardous chemicals into the waters of the United States, companies and organizations must be authorized to do so under the National Pollution Discharge Elimination System—NPDES.
If they do not have a NPDES permit, or violate terms of the permit, companies or individuals can be convicted under the Clean Water Act.
Curtis was found guilty-
Be Alert!
Navy 1 ones _
Navy employee gets jail term for fuel spill
come up in permit re- f rpv:PW
newal negotiations, should be given to t e nsure q,at any- ____________ r_ o _
In this way, the commanding officer wi ^ ^ ^ whde lect SuCCeSS stories. Naval Base Norfolk’s program for the
thing representing a policy issue t°r „ common posi- Chesapeake Bay has received considerable positive reac- will be spotted and elevated, prese™ ® the regula- tion. Public information is equally important for emergent tion for negotiation This is essenti g function problems, such as a leaking landfill. It is often best to
tors often do not understand how na R) ly a get out in front of such a problem. For example, one sta-
condUron'agreed^to by o^ activity to all activities in the tion experienced a leaking on-base landfill that was threat
► A command that receives a proposed consent order or is negotiating a compliance agreement should let the RFC ifS wi. to be sure the order or agreement « only answers that command’s immediate concerns but does not set an unacceptable precedent for other con™and. •
>• New fees or assessments should be sent to the REC for a review, both for evaluation of possible tax implications (as a rule, federal agencies do not pay taxes, only
sary. Options may exist with the local Engineering Fie Id division or Public Works Center: They may be able to lend somebody on a temporary basis, or they may be ab e 'o accomplish the work itself. Following an EPA inspection at New London that revealed several serious compliance and management discrepancies, the local station commander not only bought additional environmental statt billets, he made available line assets at all eve s o en'vl tonmental management. Subsequent EPA inspections noted
significant improvement. H
. A second, very valuable resource for the command
i°g officer is the Recommand’s interaction with the regulators is crucial to a successful environmental management program. When the regulators are on board, the commanding officer should insist on and be present for an in-brief and out-brief. Talk to them. Ask how the command stacks up against not only other bases, but other regulated industries; what can the command do to improve; to whom should the command talk concerning a permit issue or variance request? The commanding officer should, at a minimum, chop all correspondence between the station and the regulatory agency.
A fourth tool is the relationship with the local community. Execute your environmental public affairs program carefully. Publish press statements on se- ening to send a plume of vinyl chloride, among other contaminants, into the well water of an adjoining residential community. The commander took the initiative. He advised the community that the landfill was leaking. He tested the wells. His representatives attended community association meetings, and are actively working on a remediation plan. Reaction has been very positive.
A fifth tool available for the commanding officer is the ECE.14 The ECE is designed to assist commanding offi-
cers in assessing the corrective action they must take, and to provide their superiors with a snapshot of their compliance posture. The ECE program consists of three parts: the self-audit, the major claimant audit, and the IG. The self-audit is a command self-inspection, which must be done yearly. Major claimant inspections are required every three years unless the station has been listed as a “significant noncomplier,” in which case the major claimant is to conduct an inspection within six months. The Navy Inspector General’s Navy Environmental Inspection Team conducts the third phase inspection.
Whether the ECE is a self-audit or an IG inspection, a
well-executed assessment is invaluable for telling a command precisely where its environmental program stands. The findings (Part 1) serve to document conditions as actually observed and then to compare those conditions to the legal and regulatory requirements. A good ECE also will include recommendations (Part 2) to assist the command in coming into compliance. The goal is to find and correct deficiencies before they become regulatory issues with the EPA or state agencies. A well-run ECE program should thus prevent any surprises when the EPA or state regulatory agencies visit for their yearly inspections.
Probably the most important part of the ECE program is the self-audit. With a good self ECE, a command will find violations before the regulators do, and should the regulators review a station’s audits, they will note that the station is taking compliance seriously. Although EPA policy is not to request routine self-audits, regulatory age11' cies have been known to request self-audits as part of their inspection.15 Since prosecutorial decisions rest in part on whether or not an effective self-audit program exists, itlS in a station’s best interests to ensure that self-audit ECEs are thorough.
Whatever the level of ECE, the command’s real work starts when the ECE is completed. Proper attention t0 the ECE results is much like preventive maintenance. E can save substantial resources in avoiding formal citations’ court actions, or protracted compliance agreement neg0' tiations. The command should develop a plan of action to remedy the deficiencies found. The ECE results and command plan of ac' tion also should allow the command to set priorities, commit those resources it has, and document requests for the resources it does not have. The command also should document corrective actions, including actions that hold people accountable. The ECE and command plan for correcting discrepancieS are only as good as the corrective ac' tions taken.
In 1991, the Justice Department established its guidelines for bringing a prosecution, guidelines that echo the leadership and management principle the Navy always has sought to employBeing active and involved in the station’s environmental program is probably the best method to achieve compliance and avoid liability. The Justice Department’s guidelines contained the following points:16
A. Was there voluntary, timely, and complete disclosure, including assistance with an investigation? A disclosure already required by law, regulation, or permit is not considered voluntary.
B. Did the facility cooperate? Was there a willingness to make all relevant information available? Conversely, were
there efforts to conceal problems or alter records?
C. Was there a regular, intensive, comprehensive program to ensure compliance, including an audit program that includes sufficient measures to avoid future noncompliance? Specifically:
► Was there a strong institutional policy for compliance?
► Did compliance efforts go beyond those required by law?
>■ Were there regular audits, and were the audits done in a way to ensure their integrity?
>• Were recommendations from audits implemented quickly?
► Was environmental compliance a measure of employee performance?
D. Other factors. Was there evidence of pervasive noncompliance, such as repeated violations, official condo-
The risk of environmental prosecution is real, but it is also manageable. We have had our successes. One of the best examples involves an air station at which the commanding officer makes regular visits to the wastewate treatment plants and hazardous waste storage facilities, and asks the operators if they understand their permit constraints. It should be no surprise that a avy envir mental IG inspection at that base found it to beonei ‘he best managed in the country. Proven leadership tec niques—both traditional and modern—that have served ns well before will do so again in the area of enviro mental compliance.
Por example, the recently passed Federal Facility Compliance A , federal 86, ,06 Slat. 1505 (6 Oct. 1992). permits states to lev,- c v,l^p nalt.es on ted facilities for noncompliance with hazardous waste man- fee ^ A j
See, e.g„ Federal Employees LiabilityReform.andTort ®88. Also, where the damage is alleged to hav United States,
■emedies are probably limited to suits ‘"^p^p^Compliance Strategy VI-3 Environmental Protection Agency, Federal Facilities F
"ation, involvement of many employees, and so on? Was ^ facility’s internal disciplinary action effective. Were ‘here immediate, strenuous efforts to remedy noncomp i- ance? Good faith efforts to reach environmental compliance agreements with federal or state authorities are also favorably considered.
Conclusion .
environmental protect 0988) (Yellow Book).
*Fugh, Isaacson, and Rouse, “The Commander and Environmental Compliance,
Separtme^rf Justice, Environmental Crimes Manual VI1-54 (1991) (Corporate officer responsibility doctrine extends liability to decision makers who are in a position to correct a problem and fail to do so). . , ,, „ ,,,
‘United States v. Dee, 912 F.2d 741 (4th cir. 1990), cert, denied U.S., 113
L.Ed.2d 242 (1991).
7United States v. Bond, Cr. 91-02S7-GT (D.S.D. Ca., 9 Apr.
1991).
•United States v. Curtis, 988 F.2d 946 (9th cir. 1993)
"See Chief of Naval Operations Instruction 5090.1A,
Environmental Protection and Natural Resources Program, (2 Oct. 1990)(here-
inafter OPNAVINST 5090.1A). xx „.„rns At
'“Interview with Mr. Gary Edwards, Environmental Programs Manager, U.S. Atlantic Fleet, Shore Facilities Readiness Directorate, April 1992. ...
"10USC S 892 (1990) (Article 92 of the Uniform Code of Military Justice). "OPNAVINST 5090.1A ch. 2 (1990).
"See United States v. Massachusetts, 435 U.S. 444 (1978).
"See OPNAVINST 5090. 1A ch. 4 (1990).
1551 FR 25007 (9 July 1986). EPA’s concern was for audits to remain candid assessments, and thus remain beneficial to an agency s decision makers. "•Department of Justice memorandum. Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (1 July 1991) (on file with author).
Commander Shepherd is currently assigned as the Assistant Staff Judge Advocate for Environmental Law at the U.S. Atlantic Fleet Headquarters. He holds a B.S. in National Security Affairs from the Naval Academy, a J.D. from Georgetown University Law Center, and an LL.M. from the University of Virginia. Commander Shepherd has served at Naval Legal Service Office, Washington, D.C.; as Assistant Staff Judge Advocate to the Commander Naval Base San Diego; as Assistant Force Judge Advocate to the Commander, Naval Air Forces Pacific; as Command Judge Advocate on the USS Ranger (CV-61), and at Naval Legal Service Office Philadelphia.
ARLEIGH BURKE ESSAY CONTEST
The U.S. Naval Institute is proud to announce Ustenth annual krleigh Burke Essay Contest, which replaces the ;ral Prize Essay Contest.
Three essays will be selected for prizes.
Anyone is eligible to enter and win.
Medal, and a Life Membership in the Naval Insti • Mention
Mention wins $2,000 and a Silver Medal. Second Honorable Mention
wins $1,000 and a Bronze Medal. ,, s Navai
The topic of the essay must relate to the objectiveof ^U^Nava, Institute: “The advancement of professiona ,1 . y’ldvancement 0f
knowledge in the naval and maritime services,
the knowledge of sea power. , f . it $ Naval
Essays will be judged by the Editorial Board of the U.S. Na
Institute.
ENTRY RULES words and must not
1. Essays must be original, must not exceed , •
have been previously published. An exact word count must appear
2heAUentrifs should be directed to; Publisher, U^N^21 Institute, 118
ZZZ 1 December 1993 ,be U.S.
Naval Institute. . Fach author
4 The name of the author shall not appear on the essay. Eacn aumor
shall assign a motto in addition to a titlei to the essay.^ “^
is
curity number, address, and office and home phone numbers (if available) of the essayist, along with the title of the essay and motto.
The identity of the essayist will not be known of the judging members of the Editorial Board until they have made their selections.
5. The awards will be presented to the winning essayists at the 120th Annual Meeting of the membership of the Naval Institute. Letters notifying the award winners will be mailed on or about 1 February 1994, and the unsuccessful essays will be returned to their authors during February.
6. All essays must be typewritten, double-spaced, on paper approximately 8 'A x 11". Submit two complete copies.
7. The winning and honorable mention essays will be published in the Proceedings. Essays not awarded a prize may be selected for publication in the Proceedings. The writers of such essays will be compensated at the rate established for purchase of articles.
8. An essay entered in this contest should be analytical and/or interpretive, not merely an exposition, a personal narrative, or a report.
Deadline; 1 December 1993