NGB JA 2005 LEGAL UPDATE

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NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL

• NGB- JA 2005 LEGAL UPDATE
• EDWARD MORRISON
• Edward.morrison_at_ngb.ang.af.mil

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OVERVIEW

• LITIGATION UPDATE
• EMERGING CONTAMINANTS
• ENVIRONMENTAL ENFORCEMENT ACTIONS

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LITIGATION UPDATE

• GIFFORD PINCHOT TASK FORCE v. FISH WILDLIFE
• EAGLE RIVER FLATS OPERATIONAL RANGES
• NEPA STALLS ARMY TRANSFORMATION
• TAKINGS CASES IMPACT TRAINING
• THE AVIALL CASE

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PINCHOT v. US FISH WILDLIFE

• ISSUE FWS DEFINITION OF NO ADVERSE
  MODIFICATION OF CRITICAL HABITAT
• FWS SO LONG AS SOME SPECIES SURVIVE, NO
  ADVERSE MODIFICATION OF C.H. OCCURS
• DECISION ESA ENACTED TO PROMOTE SPECIES RECOVERY
• NOT JUST FORESTALL EXTINCTION
• FWS DIDNT EVALUATE IF ENOUGH C.H. REMAINED TO
  PROMOTE SPECIES RECOVERY

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PINCHOT, contd

• FALLOUT
• FWS MIGHT CHANGE DEFINITION OF ADVERSE MOD
• PINCHOT FROM 9TH CIR, BUT 5TH 10TH SIMILAR
  DECISIONS
• BASES
• REVIEW YOUR BOs FOR PINCHOT IMPACTS DO THEY
  SPECIFICALLY ADDRESS SPECIES RECOVERY?
• SHOULD BASE WORK UNDER (VULNERABLE) BO, OR
  REINITIATE CONSULTATION?

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EAGLE RIVER FLATS

• ISSUES DOES ARMY FIRING RANGE USE DISCHARGE OF
  POLLUTANTS REQUIRING A CWA PERMIT?
• DOES IT VIOLATE RCRA?
• DOES IT REQUIRE A CERCLA RI/FS?
• DOJ HAS APPROVED A SETTLEMENT - WILL PERMITS BE
  NEEDED?
• ARMY FUNDING OPERATIONAL RANGE ASSESSMENT

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NEPA STALLS ARMY TRANSFORMATION

• ARMY SUED IN HI OVER TRANSFORMATION OF AN
  INFANTRY DIVISION INTO A STRYKER BRIGADE
• ISSUE WAS NEPA ANALYSIS ADEQUATE?
• HEARING PENDING - BUT STRYKERS ARENT GOING TO HI
  AS PLANNED FOR NOW

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TAKINGS CLAIMS AND TRAINING

• AFFECTING NAVY AND AIR FORCE
• NAVY 2000 PLAINTIFFS SEEK FOR LOSS OF
  PROPERTY VALUES IN VIRGINIA BEACH, VA (NAS
  OCEANA)
• AIR FORCE REALISTIC BOMBER TRAINING INITIATIVE
  PROPOSAL IAW FAA-APPROVED AIRSPACE CHANGES IS
  CHALLENGED UNDER NEPA, 5TH AND 3RD (!)
  AMENDMENTS, AND NOISE CONTROL CLAIMS
• RESULT TRAINING DELAYED

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THE AVIALL CASE

• US SUPREME COURT PRP NEEDS EPA ORDER TO PURSUE
  CONTRIBUTION IN CERCLA CLEANUPS
• LIKELY TO STALL VOLUNTARY CLEANUP PROGRAMS
• CIRCUITS WERE SPLIT SUPREMES RESOLVED ISSUE
• LEGISLATIVE FIX LIKELY

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ANIMALS CANT SUE UNDER ENV LAWS. AT LEAST, NOT
YET.

• CETACEAN COMMUNITY v. BUSH RUMSFELD
• CETACEANS (WHALES, DOLPHINS, ETC) DONT HAVE
  LEGAL STANDING TO SUE UNDER ESA, MMPA, NEPA OR
  THE APA.
• WHILE NOTHING IN THE CONSTITUTION PREVENTS
  CONGRESS FROM STATUTORILY AUTHORIZING STANDING TO
  AN ANIMAL, THIS CASE DIDNT DO IT

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EMERGING CONTAMINANTS

• NOT COMMONLY MONITORED BUT COULD ENTER THE
  ENVIRONMENT CAUSE HEALTH/ENV EFFECTS
• CHANGING REGULATORY REQUIREMENT EVOLVING
  SCIENCE REFINED ANALYTICAL CAPABILITIES
• HAZ WASTE (HW), HAZ SUBSTANCE (HS), POLLUTANT OR
  CONTAMINANT (PC)
• CAN WE BE FORCED TO CLEAN IT UP?

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LEGALLY, WHAT THE EC IS, DEFINES AUTHORITY FOR
REGULATOR TO ORDER CLEANUP

• SW / HW RCRA, IF IMMINENT SUBSTANTIAL
  ENDANGERMENT (ISE)
• HS CERCLA, AT DoD AT DoD SITES, FOR HS/PC IF IT
  CREATES ISE
• HS CERCLA, EPA ORDERS RESPONSE IF ISE

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COMPLIANCE WITH STANDARDS

• DoD COMPLIES WITH REGULATORY CLEANUP STDS
• I.E., ARARs!
• DoD SUBJECT TO SDWA STDS - BUT THEY MAY NOT BE
  CLEANUP LEVEL ARE ARARs IF MCLs
• PUBLIC HEALTH GOALS (CA), HEALTH BASED GUIDANCE
  LEVELS (AZ), PROVISIONAL STDS ARE NOT CLEANUP STDS

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WHAT IF NO STANDARDS EXIST?

• SITE-SPECIFIC RISK ASSESSMENT SHOULD BE CONDUCTED
  BASED ON EPA-PUBLISHED TOXICITY FACTORS
• DoD POLICY IF THERE IS AN UNACCEPTABLE RISK, WE
  RESPOND
• NCP AND CERCLA DONT BASE NEED TO RESPOND ON
  EXISTENCE OF ENFORCEABLE STANDARDS

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FINAL THOUGHTS RE ECs

• MORE - MUCH MORE - LIKELY TO FOLLOW AS POLICY AND
  LAW CATCH UP WITH TECHNOLOGY
• FOR NOW - CONTACT THE READINESS CENTER IF
  REGULATORS PUSH FOR CLEANUP/OTHER ACTION RE
  EMERGING CONTAMINANTS

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ENVIRONMENTAL ENFORCEMENT ACTIONS

• - WRITTEN
• - ISSUED BY AGENCY W/AUTHORITY TO ENFORCE ENV
  REQUIREMENTS IN ITS JURISDICTION
• - INDICATES NOTICE OF VIOLATION OF LAW/REG
• EXAMPLES NOVs, NONs, AOs, AOCs, WARNING LETTERS
  - OR EQUIVALENT

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URBAN LEGEND NO HARM, NO FOUL, NO EEA?

• WHICH EEAs GET REPORTED? ALL.
• IF THE VIOLATION THE EEA ADDRESSES IS CORRECTED
  WITHIN A PRESCRIBED TIME, MUST IT BE REPORTED?
• YES.
• IF ITS CORRECTED BEFORE THE EEA ISSUES? YES.
• IF ITS A SPEEDING TICKET? YES.

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REPORT EEAs TO READINESS CENTER

• READINESS CENTER REPORTS TO NGB-JA TO
• ARMY IMA/ AF REO
• NGB-JA REPORTS TO ARMY ELD OR AF JACE
• WHY? REGULATORS TRACK COMPLIANCE HISTORY - SO DO
  SERVICES