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ENVIRONMENTAL REQUIREMENTS AND CONSEQUENCES RELATED TO THE CLOSING OF
UNITED STATES MILITARY BASES IN EUROPE
Presented September 16, 1998, at The Fourth International Symposium and Exhibition on Environmental
Contamination in Central and Eastern Europe, held in Warsaw, Poland
by
Steve Barnett, PE, CIH, MSPH, Litigation Associate
SUMMARY:
This paper discusses United States, foreign and international laws and legal forums applicable to
environmental cleanup of United States military installations slated for closure in Europe. Legal forums
include: United Stated courts, host nation courts, and international courts, such as the United Nations
International Court of Justice (ICJ). Bodies and agencies considered include, inter alia: United States
Congress; United States Department of Defense (DOD); United States Environmental Protection Agency
(EPA); the United Nations, including the United Nations Environment Programme (UNEP); Host Nation
administrative, legislative and judicial bodies; North Atlantic Treaty Organization (NATO) and NATO's
Committee on the Challenges of Modern Society (CCMS); and the European Community, including the
European Community Parliament and European Court of Justice (ECJ). Laws reviewed include:
extraterritorial application of United States environmental laws, such as NEPA and CERCLA; selected
host nation laws, including civil and criminal penalties; European Community Directives; and
international laws including selected Treaties.
INTRODUCTION:
Since 1990, the U.S. has embarked upon extensive troop withdrawals and base closures in
Europe. The number of active duty U.S. military personnel in Europe dropped from approximately
240,000 in the early 1990's to 110,000 in 1998, and U.S. military installations in Germany decreased
from 45 in 1990 to 22 in 1996. This paper defines differences between a toxic tort and other types of
actions regarding venue, jurisdiction and choice of law. It discusses U.S., host nation, and international
laws and treaties applicable to personal injury and property damage resulting from environmental
contamination in Europe with a focus on contamination from U.S. military installations in Europe.
CHRONOLOGY OF U.S. ADMINISTRATIVE & LEGISLATIVE POLICY:
A brief history of U.S. military environmental policy overseas is as follows:
Dec. 19, 1973: Executive Order 11752, " Prevention, Control, and Abatement of Environmental Pollution at Federal Facilities," (required federal facilities outside the U.S. to comply with environmental standards of the host country).
Oct. 13, 1978: E.O. 12088, "Federal Compliance with Pollution Control Standards," (superseded E.O. 11752 but did not change the requirements for overseas compliance).
Jan. 4, 1979: E.O. 12114, "Environmental Effects Abroad of Major Federal Facilities," (requiring environmental impact statements, studies or reviews for "major federal actions" overseas).
Sep. 1986: U.S. General Accounting Office (GAO) report, "Hazardous Waste Management Problems at DOD's Overseas Installations."
Aug 1990: "Inventory of Contaminated Sites at United States Air Force Overseas Installations." (listing 32 sites at 12 installations in Europe.
1990: National Defense Authorization Act for 1991 (Congress directed the DOD to develop a policy for determining environmental requirements for DOD facilities outside the U.S.
Apr. 1991: Inventory of Contaminated Sites at United States Air Force Overseas Installations." (listing 37 sites at 12 installations in Europe).
Aug. 1991: U.S. GAO report, "Hazardous Waste Management Problems Continue at Overseas Military Bases."
Sep. 20, 1991: DOD Directive 6050.16, "DOD Policy for Establishing and Implementing Environmental Standards at Overseas Installations" (required DOD to develop an overseas environmental baseline guidance document (OEBGD) for the protection of the environment at DOD installations outside the U.S.; required appointment of a DOD Environmental Executive Agent for each host country to consult with host nation environmental and diplomatic authorities and issue a Final Governing Standard (FGS) for DOD installations and facilities in that country, based on the OEBGD and host nation standards).
Nov. 1991: article in Rolling Stone Magazine, "Over There: The U.S. Military's Toxic Reach."
Mar. 1992: Report of Delegation from the U.S. House of Representatives to the House Committee on Armed Services regarding cleanup and environmental compliance issues at the overseas installations.
Oct. 1992: DOD published the first Overseas Environmental Baseline Guidance Document (OEBGD) (an updated OEBGD is being drafted and may be available shortly).
Oct. 23, 1992: Congress urged DOD to seek equitable division of environmental restoration costs with host nations and required DOD to report annually on efforts and progress in obtaining funding and support for remediation from the host nations.
Feb. 2, 1998: DOD published DOD Instruction 4715.8, "Environmental Remediation for DOD Activities Overseas." (formalized policy in existence since 1991; DOD components shall remedy "known imminent and substantial endangerments to human health and safety due to environmental contamination that was caused by DOD operations." Commanders may undertake additional remedial measures. DOD remediation may continue after return but DOD may not fund beyond that
agreed to before the return. DOD shall encourage host nations to undertake additional remediation. Host nation expenditures to remediate DOD-caused contamination may be considered as an offset against the residual value of DOD capital improvements).
OVERSEAS ENVIRONMENTAL CONTAMINATION: LEGAL IMPACT
a. Definition of toxic tort: property damage & personal injury.
A toxic tort implies a legal action to recover for exposure to chemical substances, in our case
environmental contamination. The legal impact of a toxic tort resulting from environmental
contamination may be broken down into two categories: personal injury and property damage. From a
legal standpoint, the time and location of "injury" or "damage" determine where and under what laws
actions may proceed. Injury due to chemical exposure has been deemed a continuing tort, for which
damage or injury may occur at a time and place other than where exposure took place. The mechanisms
by which chemicals such as carcinogens and teratogens act in the body are not well understood, and some
contend that cellular damage constitutes injury. Some courts have held that the mere ingestion of toxic
substances without disease or effect is insufficient to constitute legal injury. For Statute of Limitations
purposes, a cause of action for personal injury has been held to arise in some cases only upon discovery of
disease. Insurance coverage has been found to be triggered at the time of exposure, time of manifestation,
and/or during the intervening period.
The most common remedy for property damage from environmental contamination is the cost to
cleanup. From a legal point of view, the time of "damage" to property may be continuous, and may be
deemed to occur at the time of release of a chemical, during migration or movement of contamination, at
discovery of the contamination, or throughout. Thus the time to bring a lawsuit may vary. The location
of property damage remains with the property and so, with few exceptions, legal proceedings for property
damage are instituted in the jurisdiction where the property is located.
b. Venue, Jurisdiction and Applicable U.S. Laws.
1. North Atlantic Treaty Organization Status of Forces Agreement (NATO-SOFA).
The framework for claims arising from U.S. military operations in Europe is the North Atlantic
Treaty Organization Status of Forces Agreement ("NATO-SOFA"), signed in 1949 and effective 1951. It
provides in pertinent part, "[c]laims arising out of acts or omissions of members of a force or civilian
component done in the performance of official duty, or out of any other act, omission or occurrence for
which a force or civilian component is legally responsible, and causing damage in the territory of the
receiving State to third parties shall be filed, considered and settled or adjudicated in accordance with the
laws and regulations of the receiving State." Thus, U.S. courts have held NATO-SOFA and host nation
courts to be the exclusive remedy for plaintiffs where applicable. For environmental property damage
cases, the NATO-SOFA would likely bind the parties to resolve their claims in the host nation. However,
where personal injury occurs outside the host country, such as when an individual leaves prior to
discovering a disease, the claim might not be governed by the NATO-SOFA.
2. Federal Tort Claims Act (FTCA).
The U.S. government waived its sovereign immunity and allowed for certain civil suits against it
by means of the Federal Tort Claims Act (FTCA). Significantly, the FTCA does not apply to, and
provides no relief for, "any claim arising in a foreign country." As described above for NATO-SOFA, a
plaintiff's claim in a toxic tort case may not "arise in a foreign country," where, for example, the disease
develops or manifests itself after the plaintiff has left the foreign country and returned to the U.S. The
FTCA allows claims for emotional distress (except the government is not subject to punitive damages).
By alleging emotional distress occurred in the U.S., a plaintiff bolsters her argument to avoid the FTCA
foreign-claim bar. Another aspect of the FTCA is to what extent a government officer is acting within the
scope of his office. If the government certifies the official was acting within the scope of employment, the
government steps in thje shoes of the employee, and the FTCA bars any other civil action against the
officer or his estate arising out of the conduct. Where a government officer or employee is found not to be
acting within the scope of employment, government liability is precluded for his actions.
As an example of NATO-SOFA and FTCA interaction, survivors of skiers killed while riding a
gondola in February 1998 in Cavalese, Italy, have requested that the U.S. Congress waive U.S. immunity
under the NATO-SOFA. They claim that the NATO-SOFA process in Italian courts could take 8-10
years, and the families of the non-Italian victims particularly may see little reason to be venued in Italian
courts. As precedent, they cite the U.S. payment of $132 million to Iranian families killed when the U.S.
Navy shot down an Iranian jet killing 290 in 1988. Some of the Cavalese victims' survivors have also
filed claims pursuant to the Federal Tort Claims Act (FTCA). As a result of the FTCA foreign claim bar,
to date their FTCA claims have been filed only against the DOD National Imagery and Mapping Agency
(NIMA) in Washington, DC.
3. U.S. Environmental Laws.
Victims of environmental contamination overseas may have a number of U.S. statutory remedies
available other than the FTCA. Environmental statutes, which allow for civil suits by private individuals
and in most respects can hold U.S. government agencies liable, often do not expressly bar, and sometimes
expressly include, claims "arising in foreign countries." In 1993, the US Court of Appeals for the District
of Columbia decided that the National Environmental Policy Act applied to the National Science
Foundation's plans to build two incinerators in Antarctica. In part based on this case, some commentators
have argued for application of CERCLA Section 107 to allow for recovery of cleanup costs related to
overseas sites. Section 107 does not expressly bar or limit foreign claimants or exclude remedial actions
outside the U.S. Actions may be brought by private parties to recover cleanup costs, natural resource
damages and health assessment costs. A potential result of CERCLA in this context is U.S. venue and
jurisdiction for property damage claims (which would be tied to arguments that personal injury claims
may be venued in U.S. courts). Pursuant to the Federal Facilities Compliance Act, DOD can be held
liable as a responsible party under 107.
U.S. environmental law comprises numerous statutes, many of which contain provisions
applicable to actions outside the U.S. For example, the U.S. Endangered Species Act, allows for civil
suits, includes express provisions applicable outside the U.S., and allows recourse against government and
private entities. In addition, common law principles allow recovery for disease, increased risk of disease,
and fear of contracting a disease in most U.S. courts against private parties, and under the FTCA against
government agencies. Injunctive relief can be sought under nuisance doctrines.
In response to U.S. courts' application of U.S. antitrust law outside the U.S., foreign governments
have enacted statutes impeding discovery and rendering certain U.S. antitrust judgments unenforceable. It
is difficult to predict whether host nations would react similarly were U.S. environmental laws to be used
to cleanup sites in their territory or compensate individuals harmed by exposure to such sites.
4. Strict Products Liability Law.
The Restatement of Torts defines strict product liability as, "one who sells a product in defective
condition unreasonably dangerous to the user or consumer, or to his property is subject to liability to the
ultimate user or consumer, or to his property if the seller is engaged in the business of selling the product
and the product is expected to and does reach the user or consumer without substantial change in the
condition in which it was sold." Defenses available to a chemical manufacturer or jet fuel refiner sued
under strict products liability for cleanup of a waste site include: a) lack of knowledge that ground
disposal would pose a problem, and b) the product was altered, and even "misused," by the consumer prior
to ending up in the ground. However, reviews the Journal of Industrial Hygiene (v. 1. in 1919), or
Industrial Medicine (v. 1 in 1932), for example, might yield articles describing health effects of benzene
or carbon tetrachloride, while, at the same time, publications such as Water Works and Waste
Engineering (v. 1 in 1848) or Water Works and Sewerage (v. 1 in 1890) historically describe and
recommend ground disposal of industrial wastes. If so, a manufacturer may have had a duty to study the
effects of ground disposal of their products and advise their customers of safe disposal practices.
Government entities, as well as individuals, may recover under product liability theories. For
example, under the FTCA, the U.S. is entitled to contribution from joint tortfeasors, and if the joint
tortfeasor is primarily responsible, the U.S. is entitled to indemnity if its own negligence was passive or
secondary. A product liability suit by a government agency may be easier to prove, because government
recordkeeping practices, including the National Archives system, are often more complete than private
industries and would allow better identification of historical sellers and manufacturers of products, which
are found to be present at a waste site. Defenses to such government actions would be that, in many cases,
the government specified through military specifications or federal specifications exactly what was to be
supplied, and the government was likely just as aware through its Public Health Service of the health
effects of the chemicals as well as industrial waste disposal and water supply practices. However, U.S.
Courts have usually not affirmed the "government contractor" defense in product liability cases.
5. Foreign parties and foreign law in U.S. courts.
Foreign governments and their representatives are generally permitted to sue in the courts of the
United States as a matter of comity and so could bring a valid action in US courts regarding cleanup of
contaminated sites outside the U.S. 28 USCA Section 1350 endows U.S. District Courts with subject
matter jurisdiction over tort actions brought by aliens for torts committed in violation of the "law of
nations" or a treaty of the United States. What constitutes the "law of nations" is not defined.
As for joining the foreign government as a defendant in litigation in a U.S. court, the Foreign
Sovereign Immunities Act (FSIA) confers original jurisdiction upon the U.S. District Courts for any claim
for which the foreign state is not entitled to immunity. Among the exceptions to immunity are cases
"against a foreign state for personal injury or death . . . occurring in the United States and caused by the
tortious act or omission of that foreign state or of any official or employee of that foreign state while
acting within the scope of his official employment." This may allow suit against a foreign state in an
action where personal injury occurs in the U.S. as a result of exposure to chemicals overseas. A
consideration in this regard is the Act of State Doctrine, which precludes American courts from inquiring
into public acts a recognized sovereign power commits in its own territory. It would seem that a foreign
state's landownership of a NATO installation may qualify as an Act of State and make this doctrine an
attractive defense for the foreign state in such a case.
Regarding application of foreign law by a U.S. courts, as a rule, U.S. courts will not customarily
take judicial notice of the laws of a foreign country - instead such law must be pleaded and proved when
relied upon. Under appropriate circumstances, it may benefit plaintiffs to bring an action in the foreign
jurisdiction and seek to have it enforced in the U.S. on its own or as a part of a broader suit. In such a
case, under the doctrine of comity, although foreign judgments may be denied extraterritorial effect where
they contradict public policy of the forum, U.S. courts have rarely refused to give effect to valid foreign
judgments.
6. Treaties.
To the extent the U.S. has entered into treaties or international agreements, the first question is
whether it is executory or self-executing. A self-executing treaty, such as the NATO-SOFA, operates of
itself and does not require implementing legislation. An executory treaty, on the other hand, is without
effect until implementing legislation is enacted. Where a self-executing treaty conflicts with a statute, the
two will be read to give effect to both, unless a clear intent is manifested in the later statute or treaty to
supersede the earlier statute or treaty.
7. Class actions.
Class action lawsuits in U.S. courts may be appropriate where more than one plaintiff claims
damages due to environmental contamination overseas. Class actions may be brought in state or federal
courts. The prerequisites for certifying a class action suit are numerosity (class is so numerous and
separated geographically that joinder is impracticable); commonality (questions of law or fact common to
the class); typicality (class representatives possess the same interests as absent class members); and
adequacy of representation (representatives and attorneys will vigorously prosecute class claims and there
is an absence of conflict between representatives and absent class members). In general, the principles of
jurisdiction, treaty provisions, choice of law, and U.S. and host nation liabilities would apply in a class
action. The class action may simply allow for consolidated discovery procedures and resolution of all
claims arising from a contaminated site (or sites) more expeditiously than trying the cases separately.
8. Jurisdiction and forum non conveniens.
A U.S. court must have personal jurisdiction over a defendant to issue a binding judgment.
Personal jurisdiction concerns a court's ability to bind a particular party and must meet the requirements
of the Due Process Clause and the Fourteenth Amendment of the U.S. Constitution. The Texas Supreme
Court recently found no personal jurisdiction over an Australian defendant in a toxic tort case, where the
defendant had no offices in Texas, no employees in Texas, no bank accounts in Texas, never solicited
business in Texas, never sent correspondence to Texas, never owned property or paid taxes in Texas,
never entered into a contract in Texas, and never purposefully acted to direct its products to Texas. Citing
that case, a California court did find personal jurisdiction over a Canadian company, because it directed
its product to California locations over a period of years.
Not to be confused with the requirement of personal jurisdiction, the doctrine of forum
nonconveniens allows a court to resist jurisdiction when the case can be more conveniently tried
elsewhere. Considerations include interests of the litigants, ease of access to sources of proof, availability
of compelling discovery and testimony from unwilling persons, expense, expediency, and public factors
such as docket congestion, familiarity with governing law, and community considerations. An
informative case arose out of the release of methyl isocyanate gas from the Union Carbide plant in Bhopal,
India, in December, 1984. In that matter, a class action complaint filed in New York against the parent
company, UCC, was dismissed to India on forum non conveniens grounds. After determining that tort
law in India was suitable for the issues involved, the Circuit Court gave little weight to the fact that
UCC's domicile was the U.S. The Court also held it was improper for the District Court to require UCC
to consent to enforcement in the U.S. of any final judgment that would be rendered in India.
c. Host nation and international laws.
1. European Community (EC).
In 1989, the European Commission issued a "Proposal for a Council Directive on Civil Liability
for Damage Caused by Waste," which proposal was amended in 1991. The amended proposal adopts a
strict liability standard and imposes joint and several liability. It purports not to be retroactive - it does
not apply to damage "arising from an incident which occurred before" the provisions are implemented.
The Proposal expressly allows public interest groups to bring suit, and it contemplates establishment of a
public fund for waste remediation activities. Because this is a Proposed Directive, it is an unlikely basis
for remediation or compensation involving a contaminated military base in Europe.
However, in 1993, eight (8) of the EC members signed a Convention closely resembling the
Proposal - Cyprus, Finland, Greece, Iceland, Italy, Liechtenstein, Luxembourg and the Netherlands. That
Convention applies strict liability jointly and severally, and it applies only to "incidents occurring after the
entry into force of the Convention." The Convention imposes liability on operators of "dangerous
activities," which include the production, handling, storage, use or discharge of substances constituting a
significant risk for man, environment or property.
At least two other EC Directives potentially impact civil suits for the cleanup of European
military bases. First, in 1985, the Council passed "Council Directive on the Assessment of the Effects of
Certain Public and Private Projects on the Environment." Environmental impact assessments required by
this Directive are potentially sources of information regarding the nature and extent of contamination at
military installations experiencing closure and new uses. In returning facilities to host nations, DOD
policy is not to search out contamination, and this may be a means to do so. Second, in 1990, the Council
passed "Council Directive on the Freedom of Access to Information on the Environment," requiring
"public authorities" to make available information relating to the environment. Requests for information
may be refused under certain conditions, including when public security is affected.
A word about enforceability of EC legislation. EC regulations are directly enforceable in the
courts of the individual Member states, while EC Directives generally are not. However, the ECJ has held
that the Treaty establishing the EEC is self-executing to establish a body of law binding Member states,
and the ECJ has in at least one case allowed an individual to rely on directives not yet implemented by
Member states. Additionally, ECJ caselaw outlines circumstances when public interest groups have
standing before the ECJ. And, the ECJ has held EC law applicable to non-nationals of Member states.
2. Host nation waste remediation laws.
A 1987 report estimated the United Kingdom and Germany each have 50,000 sites requiring
remedial action, Denmark and the Netherlands had 10,000 and 6,000 respectively. National laws include
civil and criminal provisions for protection of the environment. As mentioned above, eight (8) EC
Member states have signed a Convention imposing non-retroactive, strict, joint and several liability for
environmental damages caused by waste. The Dutch program was established in 1982, giving the Dutch
Minister of Environment authority to recover cleanup costs from responsible parties. A 1974 law in
Belgium holds producers of toxic wastes strictly liable for all damages those wastes may cause, even
during final disposal. The NATO Supplementary Agreement regarding forces in Germany, signed in
1959, provides that NATO forces in Germany may apply its own regulations in the fields of "public safety
and order" where such standards are equal or higher than those of Germany. German regulators argue
this provision requires application of German environmental regulations in some instances.
Criminal protection of the environment became a matter of real concern in Europe in 1978, when
the European Community adopted Resolution (77) 28 on the contributions of criminal law to the
protection of the environment. The United Kingdom, France and Italy generally do not employ criminal
law for the protection of the environment. However, Germany has been more receptive to the use of
criminal law for prosecution of environmental violations. After Resolution (77) 28, Germany amended its
Penal Code to include a chapter composed of seven articles, entitled "Crimes against the Environment."
The mental element is an essential feature of German penal law, and strict liability is inadmissible under
the German Constitution.
The nations of Eastern Europe, including Albania, Bulgaria, the Czech Republic, Hungary,
Poland, Romania, the Slovak Republic, and the nations comprising the former Soviet Union and
Yugoslavia have adopted Constitutions explicitly granting environmental rights.
3. United Nations/International Court of Justice (World Court).
The International Court of Justice is the principal judicial organ of the U.N. Jurisdiction is
consent-based and only sovereign states - not individuals - may apply to appear before the Court. The
U.N. Security Council can act to enforce ICJ decisions. Via a U.S. Declaration in 1946, referred to as the
Connally Amendment, the U.S. reserves the right not to accept a decision of the Word Court, and by
reciprocity, other States can escape actions brought by the U.S. In 1985, the U.S. withdrew from a case
brought by Nicaragua in the World Court and vetoed Nicaragua's request that the Security Council
enforce the World Court's decision. In 1993, the World Court established a Chamber for Environmental
Matters composed of judges with an interest in this area.
The U.N. Environment Programme (UNEP) was set up at the 1972 UN Conference on the
Human Environment in Stockholm "to protect and enhance the quality of the human environment for
present and future generations." UNEP is based in Nairobi and consists of: 1) a Governing Council of 58
states elected by the General Assembly, 2) an environment Secretariat headed by an Executive Director
elected by the General Assembly, 3) an Environment Fund to provide additional financing on a voluntary
bases, and 4) an Environment Co-ordination Board for the UN system under chairmanship of the
Executive Director. As an example of what UNEP does, the drafting of the Basel Convention was
spearheaded by UNEP. The Basel Convention obligates its parties to prohibit waste exports in several
situations, however it has not been ratified by the U.S. Also the Rio Declaration on Environment and
Development (1992) was sponsored by UNEP. U.N. Resolutions are enforceable in U.S. courts as treaties
or international compacts. If deemed self-executing, they establish enforceable rights and obligations in
individuals; if executory, implementing legislation is needed.
4. NATO-CCMS.
Article 2 of the North Atlantic Treaty calls for scientific and environmental cooperation. The
Science Committee was formed in 1957, and the Committee on the Challenges of Modern Society
(CCMS) was formed in 1969. CCMS reports directly to the North Atlantic Council and its mandate is to
improve exchange of views and experience among allied countries in creating a better environment for
their societies. CCMS research is carried out on a decentralized basis through the use of pilot studies.
Among NATO-CCMS's pilot studies are "Cross-border Environmental Problems from Defense-Related
Installations and Activities," "Advanced Cancer Risk Assessment Methods," and "Environmental Aspects
of Reusing Former Military Lands."
CONCLUSIONS
Toxic torts involve complex scientific and medical problems, which translate into difficult legal
issues of venue, jurisdiction and choice of law. Even more complicated are the cases of injury or damage
to property and/or person outside the U.S. involving U.S. government property and/or persons. Possible
venues include U.S., host nation and international tribunals. Individuals, companies, and foreign and
U.S. government agencies and personnel are potential plaintiffs and potential defendants. Applicable
laws include U.S. law, host nation law, and international laws and treaties.
© Steve Barnett, Connell Foley LLP
©1998 Connell Foley LLP . The foregoing is provided for informational purposes only and not as legal advice. Any questions about the law or your rights and obligations should be reviewed by legal counsel who is engaged by you and is provided with your specific fact situation.
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