146 F.3d 948 (D.C. Cir. 1998), 97-1342, Military Toxics Project v. E.P.A.

Docket Nº:97-1342.
Citation:146 F.3d 948
Party Name:MILITARY TOXICS PROJECT, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents.
Case Date:June 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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146 F.3d 948 (D.C. Cir. 1998)

MILITARY TOXICS PROJECT, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner,

Administrator, U.S. Environmental Protection

Agency, Respondents.

No. 97-1342.

United States Court of Appeals, District of Columbia Circuit

June 30, 1998

Argued April 2, 1998.

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[331 U.S.App.D.C. 9] On Petition for Review of an Order of the Environmental Protection Agency.

Tanya D. Greeley and Todd M. Hooker, student counsel, argued the cause for petitioner, with whom Rena I. Steinzor, Attorney, Charles Dodge, Eric Manas, Erik Rosanes, Lori Schectel and Anne Ward, student counsel, were on the briefs.

Naikang Tsao and David J. Kaplan, Attorneys, U.S. Department of Justice, argued the cause for respondents, with whom Lois J. Schiffer, Assistant Attorney General, and Jonathan Z. Cannon, General Counsel, Environmental Protection Agency, were on the brief.

Douglas H. Green argued the cause for intervenor-applicants Chemical Manufacturers Association, et al., with whom Ronald A. Shipley, James W. Conrad, Jr., and David F. Zoll were on the joint brief.

Before: EDWARDS, Chief Judge; GINSBURG and TATEL, Circuit Judges.

GINSBURG, Circuit Judge:

The Military Toxics Project seeks review of a final rule promulgated by the Environmental Protection Agency establishing the circumstances in which military munitions are deemed hazardous waste for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. See Military Munitions Rule, 62 Fed.Reg. 6622 (1997) (challenged portions codified at 40 C.F.R. Pt. 266). For the reasons set out below, we deny the petition for review.

I. BACKGROUND

The RCRA establishes a comprehensive program to regulate the handling of "solid waste," a term defined broadly in the statute to include, with certain exceptions not relevant here, "any garbage, refuse ... and other discarded material." 42 U.S.C. § 6903(27). A "hazardous waste" is a solid waste that may

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

42 U.S.C. § 6903(5). Subtitle C of the RCRA, 42 U.S.C. §§ 6921 et seq., provides a stringent " 'cradle-to-grave' regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste," United Technologies v. United States EPA, 821 F.2d 714, 716 (D.C.Cir.1987), and charges the Administrator of the EPA to "develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject to

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[331 U.S.App.D.C. 10] the provisions of [Subtitle C]." 42 U.S.C. § 6921(a).

  1. Statutory and Regulatory Definitions of "Solid Waste"

    The regulations governing the identification and listing of hazardous waste, see 40 C.F.R. Pt. 261, include a definition of "solid waste" that "applies only to wastes that are also hazardous for purposes of the regulations implementing subtitle C of RCRA." 40 C.F.R. § 261.1(b)(1). In other words, for purposes of Subtitle C the EPA has provided a regulatory definition of solid waste that is distinct from the statutory definition. See Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 1314 (2d Cir.1993) ("The RCRA regulations create a dichotomy in the definition of solid waste").

    The regulations define solid waste as "any discarded material" and in turn define discarded material as, among other things, "abandoned." 40 C.F.R. § 261.2(a). Material is deemed abandoned if it is:

    (1) Disposed of; or

    (2) Burned or incinerated; or

    (3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated.

    40 C.F.R. § 261.2(b). According to the EPA, the element of abandonment in the regulatory definition of solid waste renders that definition somewhat narrower than the statutory definition, which encompasses "discarded material" without requiring that the material have been abandoned.

    Only a type of waste meeting the narrower regulatory definition of solid waste can be a hazardous waste within the meaning of Subtitle C. A regulatory solid waste is deemed a hazardous waste for purposes of Subtitle C if the Administrator has specifically listed that type of waste as a hazardous waste, see 40 C.F.R. Pt. 261, Subpt. D, or if it exhibits any of four hazardous characteristics: ignitability, corrosivity, reactivity, or toxicity, see id. Subpt. C.

    Although the EPA has narrowed the definition of solid waste for purposes of Subtitle C, the statute itself still provides the relevant definition for purposes of Subtitle G, which authorizes the Administrator (§ 7003)--or, indeed, "any person" (§ 7002(a)(1)(B))--to bring suit in order to force such action as may be necessary to abate "an imminent and substantial endangerment to health or the environment" caused by solid waste. 42 U.S.C. §§ 6972(a)(1)(B) & 6973; see 40 C.F.R. § 261.1(b)(2) (material not defined as solid waste for purposes of Subtitle C "is still a solid waste" if "[i]n the case of section 7003, the statutory elements are established").

    The relevant portion of the regulatory apparatus erected by and under the authority of the RCRA can be summarized as follows: Solid waste is by statute defined broadly as any "discarded material"; by regulation, however, solid waste for purposes of Subtitle C includes only discarded material that has been "abandoned" in certain ways, of which the only one relevant here is by being "disposed of." As a result of this distinction between the statutory and regulatory definitions, while any discarded material that poses an imminent and substantial hazard may be the subject of a lawsuit brought pursuant to Subtitle G, only discarded material that has been "disposed of" can constitute hazardous waste that is subject to the stringent "cradle-to-grave" regulatory scheme of Subtitle C.

  2. The Military Munitions Rule

    Section 3004(y) was added to the RCRA by the Federal Facility Compliance Act of 1992, Pub.L. No. 102-386, § 107, 106 Stat. 1505, 1513-14 (codified at 42 U.S.C. § 6924(y)). That section instructed the Administrator of the EPA to propose, "after consulting with the Secretary of Defense and appropriate State officials, regulations identifying when military munitions become hazardous waste for purposes of [Subtitle C] and providing for the safe transportation and storage of such waste." 42 U.S.C. § 6924(y)(1).

    The Administrator responded to the mandate of § 3004(y) by promulgating the Military Munitions Rule, 40 C.F.R. Part 266 of which is the subject of this appeal. Subpart M of Part 266 governs the management of military munitions when the military or another party subject to the Rule either (1) fires munitions at a firing range or (2) transports

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    [331 U.S.App.D.C. 11] or stores munitions that constitute hazardous waste. Also under challenge is the EPA's decision not to promulgate a rule addressing the status of military munitions at firing ranges that the military has closed or transferred from military control.

    1. Munitions at firing ranges

    In the preamble to the final Military Munitions Rule the EPA expressed its "opinion [that] the use of munitions does not constitute a waste management activity because the munitions are not 'discarded.' " 62 Fed.Reg. at 6630. Accordingly, the Rule provides that a military munition is not a regulatory solid waste when it is used "for its intended purpose," including training, research, testing, and

    [r]ecovery, collection, and on-range destruction of unexploded ordnance and munitions fragments during range clearance activities at active or inactive ranges. However, "use for intended purpose" does not include the on-range disposal or burial of unexploded ordnance and contaminants when the burial is not a result of product use.

    40 C.F.R. § 266.202(a)(1)(iii).

    A used or fired military munition comes within the regulatory definition of solid waste for purposes of Subtitle C when it is "transported off range or from the site of use ... for the purposes of storage, reclamation, treatment, disposal, or treatment prior to disposal" or if it is "recovered collected, and then disposed of by burial, or landfilling either on or off a range." 40 C.F.R. § 266.202(c). A used or fired military munition that "lands off range and is not promptly rendered safe and/or retrieved," however, comes within the statutory but not the regulatory definition of solid waste. 40 C.F.R. § 266.202(d). Although this type of solid waste is not subject to the strictures of Subtitle C, Part 266 provides:

    Any imminent and substantial threats associated with any remaining material must be addressed. If remedial action is infeasible, the operator of the range must maintain a record of the event for as long as any threat remains. The record must include the type of munition and its location (to the extent the location is known).

    40 C.F.R. § 266.202(d).

    To sum up: The Military Munitions Rule provides that a military munition that lands on a firing range is not a solid waste and hence cannot be a hazardous waste for purposes of Subtitle C. If the munition lands off range and is not retrieved or rendered safe, then it is a statutory solid waste...

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