The Department of Defense (DOD) has approached EPA about resolving a long-running dispute over the agency's consideration of the economic benefits of noncompliance in calculating penalties for Clean Air Act (CAA) violations at federal facilities, a DOD attorney told a recent conference.
DOD "has made some overtures" to EPA, but there have been "no significant developments," the attorney said.
The DOD efforts follow a 2003 ruling by EPA's Environmental Appeals Board (EAB) that found EPA could consider those benefits and other factors when determining penalties for air violations at DOD's Fort Wainwright training facility in Alaska.
The case marked the first time EPA used section 113(e) of the air act against a federal facility. The provision is usually reserved for industry and allows EPA to weigh such factors as economic benefits and the size of a business when calculating penalties. EPA had charged in 1999 that the Army violated the CAA at its power plant at Fort Wainwright.
"Some people saw it as an aggressive effort to assert authority over federal facilities," DOD air attorney Lt. Col. Steve Willis said April 11 at the National Defense Industrial Association's Joint Services Environmental Management Conference & Exposition in Tampa, FL. "At the time, no one thought it applied to us."
EPA had originally sought $16 million in penalties, but DOD ultimately settled with EPA for $2 million after Congress intervened and limited the penalty in an appropriations bill, Willis said. However, DOD is still concerned about EPA's consideration of noncompliance benefits and the agency's use of the so-called BEN formula to calculate those benefits. Industry has widely criticized the model.
In arguments made before the EAB in 2002, DOD said EPA should be required to develop regulations on how the BEN model can be applied to federal facilities.
An EPA official did not respond to a request for comment on whether the agency would consider such a rule. However, the official says the CAA applies equally to all parties. "Federal facilities are subject to the same regulations as everyone," the official says.
Despite DOD's stated concerns over the impact of the Fort Wainwright settlement, the department is pressing Congress to drop a reporting requirement sparked by concern over EPA's enforcement efforts at the facility.
As part of its repeated efforts to obtain readiness exemptions from some federal environmental laws -- known as the Readiness & Range Preservation Initiative (RRPI) -- DOD is urging Congress to eliminate a requirement that it report fines and penalties in its annual Report on Environmental Quality Programs and Other Environmental Activities.
"These portions of the report require extensive data collection, but do not provide any data that is meaningful for program management," DOD wrote in recent documents submitted to Congress as part of its RRPI push. "The list is very difficult to track due to changing requirements and changing estimated/actual costs. The DOD components do not collect this data for any other reason than this report, the documents say. Relevant documents are available on InsideEPA.com.
"Congress added the requirement to include a statement on the fines and penalties based on a single large fine assessed by [EPA] against Ft. Wainwright in 1996. Since then no fine has reached that size. Therefore, we have concluded that fine was an anomaly and not indicative of a trend to large fines and penalties. Further collection of this data has not helped identify any problems for the Department to address."
Source: Environmental Policy Alert via InsideEPA.com
Issue: Vol. 22, No. 9