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Military Toxics Project v. EPA

ELR Citation: 28 ELR 21350
Nos. 97-1342, 146 F.3d 948/46 ERC 1929/(D.C. Cir., 06/30/1998)

The court denies a coalition's petition for review of the U.S. Environmental Protection Agency's (EPA's) final rule establishing the circumstances in which military munitions are deemed hazardous wastes under the Resource Conservation and Recovery Act (RCRA). The court first holds that a trade association has standing to intervene in support of EPA, because some of its members produce military munitions and operate military firing ranges regulated under the military munitions rule. The court then denies the coalition's motion to strike portions of the intervenors' briefs and materials appended thereto on the ground that they are not part of the administrative record. The challenged materials—an EPA policy document and two U.S. General Accounting Office reports—are judicially cognizable apart from the record as authorities marshaled in support of a legal argument.

The court next holds that EPA did not violate RCRA §3004(y) when it excluded from the regulatory definition of solid waste used or spent munitions lying on the ground. The court also holds that EPA's intended use interpretation of RCRA §3004(y)(1) is not arbitrary and capricious. The court then declines to reach the merits of the coalition's argument that the rule as drafted would permit the U.S. Department of Defense (DOD) unilaterally to exempt itself from any cleanup of off-range military munitions that might otherwise be required by RCRA. The coalition waived this argument by not commenting on it during the rulemaking process and may not raise it for the first time on appeal.

Next, the court holds that EPA was not obliged by RCRA §3004(y) to issue a proposed rule that would have identified as statutory solid waste-fired military munitions at ranges that have been closed or transferred from military use. EPA satisfied the requirements of §3004(y) when it determined that military munitions used as intended do not fall within the regulatory definition of solid waste for purposes of Subtitle C regardless of whether the range at which the munition is used be active, inactive, closed, or transferred from military use. The court then holds that nothing in RCRA §3004(y) restricts the ability of EPA to grant conditional exemptions for military munitions. The court further holds that EPA's conditional exemption of nonchemical military munitions in transportation or storage from RCRA Subtitle C regulation if they are managed in accordance with applicable regulations of DOD and the U.S. Department of Transportation is a permissible construction of RCRA and a rational policy choice.

Counsel for Petitioner
Tanya D. Greeley, Todd M. Hooker
Environmental Clinic
University of Maryland School of Law
500 W. Baltimore St., Baltimore MD 21201
(410) 706-3100

Counsel for Respondents
Naikang Tsao, David J. Kaplan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards and Tatel, JJ.