EPA versus DOD in dispute over EPA ability to fine federal agencies for UST violations

Abstract

The U.S. Environmental Protection Agency (EPA) and the Department of Defense (DOD) are currently locked in a struggle over the ability of the EPA to fine federal agencies for underground storage tank (UST) violations. The issue is over punitive penalties by the EPA. No one disputes that the Solid Waste Disposal Act (SWDA) Subchapter IX federal facilities section provides for EPA or the states to otherwise regulate federal facilities' USTs. Every federal agency that EPA has assessed a fine against has acquiesced to EPA's initiative, except DOD. On April 16, 1999, DOD requested a legal opinion from the Department of Justice's Office of Legal Counsel (DOJ OLC) over this legal dispute. DOD argues that under a “sovereign immunity” or a “clear statement” analysis, the impotent federal facilities clause in SWDA Subchapter IX Section 6991f prevents EPA from imposing administrative penalties on federal agencies. Although the current political climate probably favors DOJ leaning towards a pro-EPA decision, doing so would constitute too far of a stretch of the “clear statement” standard. Also, DOJ would have to overcome the difficult precedential hurdle created by a May 1999 EPA administrative law judge's (ALJ) decision in favor of DOD's position on the UST issue. Hence, this article predicts that DOJ will rule that EPA does not have authority for UST punitive penalties against federal agencies.