The receipt, negotiation and resolution of environmental enforcement actions

I. INTRODUCTION

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.

II. 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.

A. 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.

1. 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.

2. "Parking Tickets"

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.

B. Reporting Requirements

Once an EA is identified, the reporting requirements are quite simple: all EAs must be reported. "All" includes those EAs citing violations the installation cured before the EA was issued. "All" entails no-cost "parking tickets," and "all" encompasses major facility infrastructure defects that will necessitate costly modifications. Now that it is clear what must be reported, this begs the question, "Report to whom, when?"

AFI 32-7047, and AFI 51-301, Civil Litigation, (8) are unequivocal in this regard. (9) It is incumbent upon the base-level legal office to report all EAs to their MAJCOM, their Regional Counsel Office, and the Air Force Legal Services Agency's Environmental Law and Litigation Division (JACE). Initial contact should be made by the most immediate means practicable, e.g., fax or e-mail, followed by a more detailed communication as such details become available. This would include either a faxed or e-mail-transmitted, scanned copy of the EA itself, and any background information available, as well as the installation's response to the regulator once it is available.

Reporting an EA is not a concession that the recipient agrees with the EA's factual basis or concurs with its legal validity. Such disagreement or non-concurrence does not relieve the recipient of its reporting obligations. Similarly, the fact that the civil engineering community may be reporting an EA through its channels does not satisfy the legal community's obligation to report that same EA thorough legal channels. (10)

It is not for academic or mere bean counting purposes that JACE tracks EAs. JACE's objective is to track EAs the way the respective regulators track them; it is the regulators' "score" which serves as the benchmark for the penalty calculation matrix, of which past compliance history is a significant component. Being cognizant of an installation's compliance and enforcement history is essential to our role in protecting the mission and protecting Air Force commanders from environmental fines and litigation.

Relatively recently, an Air Force attorney attended an NOV settlement negotiation armed with what he thought were the facts only to learn that the regulator had a record of several open EAs at that particular base of which the attorney was unaware. This not only threw the attorney off guard and totally undermined his negotiating position, but the number of open NOVs placed the Air Force into the next higher level of the regulator's penalty matrix based on the base's recalcitrant past performance. Such a costly discrepancy between how many EAs a regulator is tracking and how many the Air Force is tracking is most often attributable to our failure to properly identify and subsequently report EAs. In any event, reporting EAs to higher headquarters should not be viewed negatively; such coordination makes it possible to bring to bear the joint expertise of both the MAJCOM and JACE in the zealous representation of the Air Force.

III. NEGOTIATING AND SETTLING ENFORCEMENT ACTIONS

The Air Force goal is always to be in compliance and thereby avoid EAs altogether. Regrettably, this ideal is far removed from the real world in which the Air Force and the regulators must co-exist. Once the Air Force is aware that it is out of compliance, whether by self-discovery or action by a regulator, the goal is to return to compliance as soon as is practicable. When the Air Force is made aware that it is out of compliance by way of an EA, the Air Force must not only return to compliance but must also resolve, or "close," the EA.

Several years ago, HQ USAF/CEV issued a policy memorandum stating that "the Air Force shall comply with the [Open Enforcement Action] closure definitions in DoDI [Department of Defense Instruction] 4715.6, Environmental Compliance ... This preempts paragraph 6.6 of AFI 32-7047, Compliance Tracking and Reporting." (11) DoDI 4715.6, Enclosure 3, [paragraph] E3.1, defines a Closed Enforcement Action as:

An enforcement action that is resolved by one of the following:

E3.1.1. Revocation of the action by the imposing regulator;

E3.1.2. Closure of the action following written notice by the regulator that the action is closed;

E3.1.3. Closure of the action, after a reasonable time span, following written notice to the regulator of intent to close an enforcement action; or

E3.1.4. Receipt of a signed compliance agreement or order. (12)

With these criteria as a backdrop, this section addresses the following aspects of the resolution/closure process: drafting a written initial response, sovereign immunity and fee/tax analyses as potential EA defenses, and EA settlement/closure coordination.

A. Drafting a Written Reply

The first step in resolving an EA is to formally reply in writing to the EA. Immediately after receiving an EA, the environmental attorney must thoroughly review the document and determine answers to the following questions:

* Who issued the enforcement action (e.g., U.S. EPA, U.S. Department of Labor, state or local regulatory agency, etc.)?

* What are the alleged violations?

* What laws or regulations were allegedly violated?

* When did the violations occur? Are the violations ongoing?

* What, if any, action has been taken to address the alleged violations?

* What response and/or action does the regulator require? (e.g., payment of penalties, submission of a management plan, sampling, etc.)?

* When is the initial response due?

* What other response options does the Air Force have (e.g., request an informal meeting or hearing)?

* Has the enforcement action been reported to the MAJCOM and/or the RCO?

* Who at the installation and within the Air Force must coordinate on the response?

* What is the Air Force's analysis and position, and what is the best way to respond?

Answering these basic questions will greatly facilitate preparing an EA response.

An initial written reply is the appropriate response to any EA, including those seemingly trivial EAs one would rather not dignify with a response. A prompt, accurate and professional response to an errant EA often results in the regulator withdrawing or revoking it. The next worst thing to ignoring an EA is to provide an irresponsible, unreasoned, or hostile response. Firm, but professional, is the best guideline for tone. (If the response asserts that the installation either has never been out of compliance or has returned to compliance, the response should request that the regulator acknowledge this, and specifically request written confirmation that the EA has been closed.)

Timeliness is also of great importance. Invariably, an EA will state a time within which its recipient must respond, such as ten days, or 30 days, from its receipt. Though perhaps slightly better than an irresponsible reply or no reply at all, an untimely response should be avoided if at all possible, and when such avoidance is not possible, an extension should be requested.

Finally, a signed and dated copy of any EA response should be provided to JACE. Some, if not most, MAJCOMs may also require that an installation coordinate on all EA responses. Even if not mandated, MAJCOM and RCO coordination is always advisable: they are in a better position to identify trends and to ensure that similar issues, both inside and outside the regulator's jurisdiction, are addressed similarly.

B. Sovereign Immunity Analysis

As to the substantive aspect of an EA response, the analysis begins with a determination as to whether or not the government has waived sovereign immunity in the area of law addressed by the EA. The federal government is only required to comply with federal, state, interstate and local environmental laws when Congress has waived the federal government's sovereign immunity and has subjected itself to those specific laws. Even if sovereign immunity has been waived for a particular environmental activity, the federal government is not authorized to pay fines (also called penalties) unless the waiver of sovereign immunity specifically requires such payment. (13) Thus, the attorney may need to consider whether a waiver exists in relation to specific aspects of the enforcement action. For example, a state may seek to enforce its laws requiring registration of a storage tank and payment of an annual registration fee, or a county may seek permit renewal fees. As with the environmental activity and fines/penalties, there must be a specific waiver of sovereign immunity allowing the federal government to pay such environmental fees.

C. Fee/Tax Analysis

Even if sovereign immunity has been waived, the federal government is prohibited from paying a fee if the fee is actually an illegal tax in disguise. The test to determine whether a fee is legitimate or is really an illegal tax masquerading as a fee was established in the 1978 Supreme Court case, Massachusetts v. United States, (14) in which the State challenged a federally imposed fee. Under the Massachusetts test, charges are payable if they:

* Do not discriminate against [federal] functions;

* Are based on a fair approximation of use of the system; and

* Are structured to produce revenues that will not exceed the total cost to the [state] government of the benefits to be supplied. (15)

Official DoD guidance appears to incorporate the Massachusetts test. Specifically, DODI 4715.6, Environmental Compliance (24 Apr 96), states that it is DoD policy to pay reasonable fees or service charges to state and local governments for compliance costs or activities except where such fees are:

* Discriminatory in either application or effect;

* Used for a service denied to a federal agency;

* Assessed under a statute in which federal sovereign immunity has not been unambiguously waived;

* Disproportionate to the intended service or use; or

* Determined to be a state or local tax. (16)

If the installation determines that an environmental fee cannot be paid, it must forward its analysis to the MAJCOM for a final decision. Prior to refusing payment, Air Force policy1 requires the MAJCOM to coordinate with JACE, SAF/GCN (17) and SAF/IEE. (18) The policy applies to the refusal to pay fees based on a fee/tax analysis; it does not prohibit local disputes concerning the amount of the fee. (19)

D. Settlement/Closure Coordination

The formality required to resolve an EA varies with the regulator and the magnitude and severity of the violations the EA addresses. Some of the "speeding ticket" varieties of EAs have a "closed" or "returned to compliance" column in which its issuer can place his or her initials and the date. The vast majority of EAs, however, are resolved by a progression of written and oral negotiations over a period of time. A few EAs result in litigation. As noted above, the fourth method DoDI 4715.6 provides for resolving an EA is by way "of a signed compliance agreement or order." Whether such an agreement or order must be executed to close out an EA will depend, once again, on the jurisdiction and the nature of the alleged violations.

Of primary importance is the fact that JACE coordination is required for all payments of environmental fines, penalties, or supplemental environmental projects, as well as their underlying settlement agreements. (20) Furthermore, some fines, penalties and their settlements, such as those involving Clean Air Act violations within the Ninth Circuit, must be coordinated with the Department of Justice. These requirements do not exist because Air Force environmental attorneys in the field are incapable of expert settlement draftsmanship, nor because higher headquarters is merely engaged in bureaucratic meddling. On the contrary, this "[c]entralized control is essential to ensure that the Air Force is not harmed by agreements that set bad precedent or are inconsistent with Air Force-wide policies." (21)

IV. DOCUMENTING ENFORCEMENT ACTION CLOSURE

The second leading cause of discrepancies between the number of EAs a regulator is tracking and how many the Air Force is tracking is that regulators' records often indicate particular EAs are open when Air Force records show them as closed. This is not problematic provided an Air Force attorney can produce a document from the file proving a particular EA was in fact closed on a specific date. There is a continuum, or sliding scale of proof, that an EA has been resolved. Proof ranges from the strongest evidence of closure (e.g., an original, signed and dated letter from the regulator on its letterhead, stating that the EA recipient is in compliance and the EA is closed) to evidence so weak that it is virtually worthless (e.g., an Air Force-generated memo-for-record pseudo-documenting a series of oral transactions that ultimately points to an unnamed bureaucrat of dubious authority employed somewhere in the bowels of one of the regulator's unidentified field offices). To increase the likelihood that Air Force closure documents fall near the strongest-evidence end of the spectrum, this section will address the preferred mechanisms for documenting an EA's closure.

A. Obtain Regulator's Written Confirmation

As stated earlier, the Air Force does not recognize "oral" EAs, and, understandably, no self-respecting regulator will accept "oral affirmation" from an EA recipient that it has returned to compliance. Similarly, the Air Force does not accept "oral confirmation" that an EA is closed. Getting something in writing (an e-mail message is better than nothing) takes relatively little time and prevents future confusion or misstatements about how long the EA was open and whether, and when, the Air Force complied with all requirements necessary to close it.

Some regulators, without prompting, will routinely provide the EA recipient with written acknowledgement that the installation is in compliance in regard to the EA's subject matter, and that the EA is closed. Regrettably, some regulators fail to conform to this most basic form of commercial or regulatory etiquette. If a regulator will not automatically provide documentation of an EA's closure, the installation should make a written request to the regulator asking for written confirmation of the EA's closure. As a matter of practice, this is usually done in one of the last paragraphs of the EA response, but it can be in a separate letter.

Regulator responses to such requests vary greatly. Some regulators generate a standard form letter, while others are much less formal. In reply to its request for written confirmation of EA closure, a base recently received a copy of the NOV from the regulator with a hand-written annotation scrawled across the bottom, "Closed," the day's date, and the signature of the regulator's agent. Regardless of the degree of closure documentation formality, the Air Force needs whatever it is that the regulator has in its files to show the EA is closed.

B. Declare Constructive Closure

If a written request for affirmative confirmation of EA closure is ignored, it may be necessary to send the regulator written notice of "constructive closure." This is usually done via a registered-mail, return-receipt-requested letter stating something to the effect that the installation considers itself to be in compliance as of a specific date, and that due to the regulator's failure to honor the installation's request for closure confirmation, the installation deems the clearly-identified EA closed unless it is contacted by the regulator within 60 days of its receipt of the installation's letter. If the regulator disagrees with the installation's determination and contacts it within the specified time, then the resolution process continues. If the installation is not contacted by the regulator by the 61st day after the green, return-receipt-requested postcard indicates the regulator signed for the letter, the installation will close the EA and memorialize it with a brief MFR to which a copy of the letter and a copy of the return-receipt-requested postcard are attached.

V. CONCLUSION

EAs are merely a mechanism by which regulators evaluate compliance with environmental laws and regulations and note violations by those they regulate. As a regulated community, the Air Force must track EAs in the same manner as the regulator, or, at a minimum, be cognizant of the differences in the respective tracking systems so that the Air Force knows what data its regulators are recording. If a regulator characterizes a written communication as an EA, the Air Force is best served by considering it an EA until the matters in question can be resolved, one way or another. If in doubt, report. There are no documented cases of anyone being reproved for erring on the side of caution. Regrettably, there are numerous instances of EAs which have gone unidentified, and therefore, unreported, often to the detriment of the Air Force.

Though "zero tolerance" for violations resulting in NOVs remains the official Air Force policy, until this ideal becomes a reality, the next best thing to not receiving an EA for environmental violations is to resolve them as expeditiously as possible. The first step in doing so is the submission of a professionally prepared, well-reasoned response. In some instances, resolution entails entering into some sort of agreement or order. When that occurs, higher-headquarters coordination is imperative. For all EAs resolved by something other than a written agreement or order, documenting the EA's closure is of vital importance. This will best protect the Air Force in future disputes with regulators by having a record that clearly indicates the issuance, resolution, and closure of all EAs.

(1) See, e.g., 16 U.S.C. 1540(e) (Endangered Species Act: Secretary of the Interior, Secretary of Commerce, Secretary of Agriculture, Secretary of the Treasury, Secretary of the Department in which the Coast Guard is operating, or all such Secretaries).

(2) See, e.g., 15 U.S.C. [section] 2684 (Toxic Substances Control Act: EPA Administrator and State enforcement of lead-based paint training and certification requirements and lead hazard pamphlet); 42 U.S.C. [section] 7413 (Clean Air Act: EPA Administrator and State enforcement of the State Implementation Plan); 33 U.S.C. [section] 1319 (Clean Water Act: EPA Administrator and State enforcement of permits). In contrast to these examples, there is no provision permitting state enforcement of the requirements established in the Endangered Species Act. See 16 U.S.C. [subsection] 1531-1544.

(3) For example, see the EPA's enforcement and compliance policies and guidance at: http://www.epa.gov/compliance/resources/policies/index.html.

(4) The MAJCOM and Regional attorneys will coordinate, as appropriate, with the Air Force Legal Services Agency, Environmental Law and Litigation Division (AFLSA/JACE).

(5) AFI 32-7047, Compliance Tracking and Reporting (March 31, 1994).

(6) It is unfortunate that within the immense universe of possible two-letter acronyms, the Air Force chose one that has long been identified with the National Environmental Policy Act. "EA" as used in this article and in the source documents from which this article is derived, including AFI 32-7047, is in no way related to a NEPA Environmental Assessment, which also uses the acronym "EA."

(7) AFI 32-7047, Attachment 1. Having been issued on 31 March 1994, AFI 32-7047 is in the process of being rewritten, and this will undoubtedly result in a new definition of an environmental enforcement action.

(8) AFI 51-301, Civil Litigation, [paragraph] 5.1 (July 1, 2002).

(9) See AFI 32-7047, [paragraph] 6; AFI 51-301, [paragraph] 5.1

(10) This difference in the CE and JA objectives in tracking EAs accounts for why there has frequently been a discrepancy in the number of open EAs the respective organizations are tracking at any given time. In times past, CE has been inclined to stop tracking an EA once it has remedied the underlying cause of an EA, whereas JA continues to track an EA until JA receives written confirmation from the regulator that the EA is closed.

(11) HQ USAF/CEV [now ILEV], Policy Memorandum on Open Enforcement Actions (12 Aug 96) (on file with AFLSA/JACE).

(12) DODI 4715.6, Environmental Compliance, Enclosure 3, [paragraph] E3.1 (April 24, 1996).

(13) Dept. of Energy v. Ohio, 503 U.S. 607, 615 (1992) (stating that "any waiver of the National Government's sovereign immunity must be unequivocal ... 'and not enlarge[d] ... beyond what the language requires '"(citations omitted)).

(14) 435 U.S. 444 (1978).

(15) Id. at 466-67.

(16) DODI 4715.6, [paragraph] 4.7.

(17) SAF/GCN is the Secretary of the Air Force General Counsel's Office, Deputy General Counsel for Installations and Environment.

(18) SAF/MIQ Memorandum, Environmental Fee/Tax Policy--ACTION MEMORANDUM (Nov. 17, 1989) (SAF/MIQ was redesignated as SAF/IEE; SAF/IEE is the Undersecretary of the Air Force for Installations and Environment and Logistics, Deputy Assistant Secretary for Environmental Safety and Occupational Health) (on file with AFLSA/JACE).

(19) See id.

(20) See TJAG Special Subject Letter 2001-4: Reporting Environmental Enforcement Actions (28 Mar 01) (on file with AFLSA/JACE).

(21) JACE, Coordination and Settlement of Notices of Violation Memo (12 May 97) (on file with AFLSA/JACE).

MAJOR F. SCOTT RISLEY *

* Major F. Scott Risley (B.A., Auburn University at Montgomery; J.D., Regent University; LL.M. (Environmental Law), George Washington University) is the Eleventh Air Force Deputy Staff Judge Advocate, Pacific Air Forces, Elmendorf Air Force Base, Alaska. He is a member of the Virginia State Bar.

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