* Articles Editor, 1999-2000, Boston College Environmental Affairs Law Review.
1 See Carnes Lord, The Role of the United States in Small Wars, in 541 The Annals of the American Academy of Political and Social Science 89, 95 (1995). See generally Lawrence Freedman, War (1995); Douglas A. MacGregor, Breaking the Phalanx: A New Design for Landpower in the 21^st Century (1997).
2 See Stephen Dycus, National Defense and the Environment 1 (1996); MacGregor, supra note 1, at 2–3.
3 See The Laws of War: Constraints on Warfare in the Western World 9 (Michael Howard et al. eds., 1997).
4 See Dycus, supra note 2, at 1.
5 See id.
6 See MacGregor, supra note 1, at 2–3; Stephen Biddle, Victory Misunderstood: What the Gulf War Tells Us about the Future of Conflict, Int’l Security, Fall 1996, at 139, 143.
7 See MacGregor, supra note 1, at 2–3; Biddle, supra note 6, at 175.
8 See Thomas G. Weiss et al., The United Nations and Changing World Politics 73 (2d ed. 1997); Lord, supra note 1, at 95–97.
9 See Lord, supra note 1, at 95–97. Examples of the modern scale of limited warfare, or “small wars,” are: the U.N. mission in Somalia (1992–93); the U.N. peacekeeping mission in the former Yugoslavia (1992-present); the U.N. peacekeeping mission in Liberia (1993); the U.N. peacekeeping mission in Haiti (1993); the U.S. peacekeeping mission in Lebanon (1982–83); the U.S. incursions into Grenada (1983) and Panama (1989); the U.S. bombing of terrorist targets in Pakistan (1998); the international oversight of Iraqi aggression in the Persian Gulf (1991-present); and the U.N. peacekeeping mission in Indonesia (1999-present). See id. at 91–95.
10 See MacGregor, supra note 1, at 2.
11 See Dycus, supra note 2, at 3; Lord, supra note 1, at 95.
12 See MacGregor, supra note 1, at 2; Lord, supra note 1, at 95–97; Biddle, supra note 6, at 175.
13 See MacGregor, supra note 1, at 2.
14 See id.
15 See Dycus, supra note 2, at 4; MacGregor, supra note 1, at 3.
16 See Dycus, supra note 2, at 80.
17 See id. at 99. According to the Defense Science Board, a Pentagon advisory group, it will cost an estimated $15 billion to clean up just five percent of the 50 million acres of land used for bombing and target ranges by the military. See David Armstrong, More Costly Cleanup on the Horizon, Boston Globe, Nov. 14, 1999, at A32. The military is currently spending $51 million per year to clean up training ranges. See id. The military’s total environmental budget is $3.5 billion annually. See id.; see also Anne Brennan & William Mills, Failed Base Cleanup, Cape Cod Times, Jan. 5, 1997.
18 See Dycus, supra note 2, at 99–100.
19 See id. at 8.
20 See id. at 185.
21 See id. at 154–58. For examples of judicial deference to the military, see generally Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) (holding that, although the Navy must apply for a discharge permit under the Clean Water Act, an injunction is not called for as it might jeopardize national security and combat readiness); Ohio v. United States Dep’t of Energy, 503 U.S. 607 (1992) (finding that the United States’s sovereign immunity from liability for state penalties was not waived by either a federal facility or citizen suit provision); Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir. 1984) (noting that violation of NEPA’s procedural requirements is perhaps justified in cases of national security and well-being); Maine v. Department of the Navy, 973 F.2d 1007 (1st Cir. 1992) (finding no waiver of sovereign immunity from state penalties for CERCLA violations at Navy shipyard in Kittery, Maine).
22 See Dycus, supra note 2, at 3.
23 Id.
24 See id. at 4.
25 See Lord, supra note 1, at 90.
26 See Dycus, supra note 2, at 4.
27 Dick Cheney, Secretary of Defense, Address to the Defense and Environment Initiative Forum, Washington, D.C. (Sept. 3, 1990), quoted in Dycus, supra note 2, at 2.
28 See Dycus, supra note 2, at 189.
29 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
30 See id.
31 See id.
32 See 40 C.F.R. § 266.20 (West 2000); Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6628 (1997).
33 See Federal Document Clearing House, Military Toxics Project Discusses Results of Proposed EPA Rule on Defense Department Toxic Wastes, Dec. 4, 1995, available in 1995 WL 712022 [hereinafter MTP Press Conference].
34 See Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998).
35 See Lieutenant Colonel Bell, Final Military Munitions Rule: An Overview, 97 Army Lawyer 49, 49 (1997) [hereinafter Bell I].
36 See Dycus, supra note 2, at 158–59; J.B. Wolverton, Note, Sovereign Immunity and National Priorities: Enforcing Federal Facilities’ Compliance with Environmental Statutes, 15 Harv. Envtl. L. Rev. 565, 568 (1991).
37 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287.
38 See Dycus, supra note 2, at 2.
39 See generally H.R. Rep. No. 102–111. Military non-compliance was the result of “a history of emphasizing the urgency of weapons production for national security, to the neglect of health and environmental considerations; ignorance of, and lack of attention to, the consequences of environmental contamination; and decades of self-regulation, without independent oversight or meaningful public scrutiny.” Office of Technology Assessment, United States Congress, OTA-484, Complex Cleanup: The Environmental Legacy of Nuclear Weapons Production (1991). See also Dycus, supra note 2, at 8.
40 See Wolverton, supra note 36, at 569.
41 See id. at 569–70.
42 See Dycus, supra note 2, at 158; Wolverton, supra note 36, at 570. The executive branch may, however, establish internal mechanisms to resolve interagency disputes. See Dycus, supra note 2, at 158.
43 See id.; Wolverton, supra note 36, at 570.
44 Dycus, supra note 2, at 158; see Wolverton, supra note 36, at 570.
45 See Wolverton, supra note 36, at 570.
46 See Kendall ex rel. Stokes v. United States, 37 U.S. 524, 610 (1838) (stating that “duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President.”); Morrison v. Olson, 487 U.S. 654, 680-82 (1988); Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1108-10 (9th Cir. 1988).
47 See Wolverton, supra note 36, at 570–71.
48 See id. at 570.
49 See id. at 570–71.
50 See Dycus, supra note 2, at 158; Wolverton, supra note 36, at 572.
51 See Dycus, supra note 2, at 158–70.
52 See id.
53 See Wolverton, supra note 36, at 572–73.
54 See id. at 573.
55 See Dycus, supra note 2, at 158–69.
56 See Wolverton, supra note 36, at 573. See also Dycus, supra note 2, at 68.
57 See Dycus, supra note 2, at 159; Wolverton, supra note 36, at 577.
58 See generally 503 U.S. 607 (1992) (holding that, in enacting RCRA, Congress did not intend to waive the government’s sovereign immunity from state-imposed punitive penalties for past RCRA violations by federal facilities).
59 See id. at 627-29. The State of Ohio sought to impose civil penalties against the DOE for several years of violations of both RCRA and the Clean Water Act at the Fernald Feed Materials plant. The Supreme Court found that in neither statute did Congress explicitly waive the federal government’s sovereign immunity and allow the imposition of punitive state penalties. See id. at 624-29.
60 See Dycus, supra note 2, at 154–58.
61 See, e.g., Wisconsin v. Weinberger, 745 F.2d 412, 427 (7th Cir. 1984).
62 See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 310 (1982); Aluli v. Brown, 437 F. Supp. 602, 611 (D. Haw. 1977).
63 See Dycus, supra note 2, at 7.
64 See id.
65 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
66 See id.
67 See 40 C.F.R. § 266.20 (West 2000).
68 See Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901–6992k (1988 & Supp. V 1993). See also Military Toxics Project v. EPA, 146 F.3d 948, 950 (D.C. Cir. 1998).
69 See 42 U.S.C. §§ 6921-6939e; Zygmunt J.B. Plater, et al., Environmental Law and Policy: Nature, Law and Society 768–69 (1998).
70 See Dycus, supra note 2, at 81–84.
71 See 42 U.S.C § 6901; Plater et al., supra note 69, at 763.
72 42 U.S.C. § 6903(27).
73 See Connecticut Coastal Fisherman’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1314 (2d Cir. 1993) (noting that “[t]he RCRA regulations create a dichotomy in the definition of solid waste”); Military Toxics Project, 146 F.3d at 951 (stating that, “for purposes of Subtitle C the EPA has provided a regulatory definition of solid waste that is distinct from the statutory definition”).
74 See Military Toxics Project, 146 F.3d at 951.
75 See 40 C.F.R. § 261.2(b) (West 2000).
76 See id.
77 See Military Toxics Project, 146 F.3d at 951.
78 See id.
79 See Plater et al., supra note 69, at 764.
80 See Resource Conservation and Recovery Act, 42 U.S.C. § 6925 (1988 & Supp. V 1993); 40 C.F.R. pt. 270. See also Dycus, supra note 2, at 82.
81 See Plater et al., supra note 69, at 776–80. The manifest system provides a paper trail linking the generator, the transporter, and the TSD for every shipment of hazardous waste from creation to disposal. See id. at 776.
82 See 42 U.S.C. §§ 6941–6949a.
83 Id. § 6973(a).
84 See id.; Dycus, supra note 2, at 82.
85 See 42 U.S.C. § 6972(a)(1)(B). This provision reads that citizens may sue those “who have contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Id.
86 See Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998).
87 See 42 U.S.C. §§ 6921, 6972-6973; Military Toxics Project, 146 F.3d at 951.
88 See 42 U.S.C. §§ 6921-6939e; Military Toxics Project, 146 F.3d at 951.
89 See 42 U.S.C. §§ 6921, 6972-6973; Military Toxics Project, 146 F.3d at 951.
90 See Military Toxics Project, 146 F.3d at 951.
91 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
92 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287.
93 See generally id.; Federal Facility Compliance Act; Enforcement Authorities Implementation, 58 Fed. Reg. 49044, 49044 (1993).
94 See 58 Fed. Reg. at 49044. “The Administrator shall initiate an administrative enforcement action against such department . . . in the same manner and under the same circumstances as an action would be initiated against any other person.” 42 U.S.C. § 6961(b)(2); Federal Facilities Compliance Act § 102(b)(1). See 58 Fed. Reg. at 49044.
95 See Federal Facilities Compliance Act § 103.
96 See id.
97 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287.
98 See generally id. Congress stated that “RCRA must clearly be modified so that the military can conduct training exercises that fulfill their fundamental purpose of training soldiers.” Id.
99 Id.
100 See generally id.; H.R. Rep. 102–886 (1992), reprinted in 1992 U.S.C.C.A.N. 1317.
101 See Federal Facilities Compliance Act § 107.
102 See id.
103 See 40 C.F.R. § 266.20 (West 2000).
104 See Federal Facilities Compliance Act § 107.
105 See generally Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622 (1997).
106 See 40 C.F.R. § 266.20.
107 See Federal Facilities Compliance Act § 107.
108 See 40 C.F.R. § 266.202(a).
109 See Plater et al., supra note 69, at 763.
110 See 40 C.F.R. § 261.2.
111 See id. § 261.2(d).
112 See id. § 262.3.
113 See Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6625 (1997).
114 See 40 C.F.R. § 261.2(a).
115 See id. § 261.2(b).
116 See id.
117 See id.; see also Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998).
118 See 40 C.F.R. § 266.202; 62 Fed. Reg. at 6625.
119 See 62 Fed. Reg. at 6628.
120 See id. at 6625.
121 40 C.F.R. § 266.202(b); see 62 Fed. Reg. at 6626.
122 See 40 C.F.R. § 266.202(b)(1); 62 Fed. Reg. at 6626. The Munitions Rule provides that the open burning/open detonation of unused munitions is subject to RCRA Subtitle C regulation because such activity is a waste management activity. However, if the open burning/open detonation occurs as an incident to the intended use of the munitions, such as the firing of military rounds or the training in the destruction of the munitions, they are not subject to RCRA regulation. See 62 Fed. Reg. at 6626.
123 See id. at 6631.
124 See id. at 6626.
125 See 40 C.F.R. § 266.202(b)(2); 62 Fed. Reg. at 6626.
126 See 62 Fed. Reg. at 6627.
127 See id. In the comment accompanying the Munitions Rule, the EPA explained that it chose the intent-based test, in part, because “it involves a minimum of interference with the military’s established and proven system for managing unused munitions, and it will not conflict with the Service’s logistical needs or constraints.” Id. at 6627 n.4. Further, the EPA determined that the military’s storage standards and practices under the Department of Defense Explosives Safety Board (DDESB) offer a comparable, if not better degree of protection than RCRA regulation would provide. See id.
128 40 C.F.R. § 266.202(b)(3). The EPA defines “deteriorated or damaged” to require that the integrity of the munition is compromised by cracks, leaks, or other damage. See 62 Fed. Reg. at 6627.
129 See id.
130 See id.
131 See 40 C.F.R. § 266.202(b)(4); 62 Fed. Reg. at 6627.
132 See 62 Fed. Reg. at 6627.
133 See id.
134 See id. at 6625. The EPA likens the use of military munitions to the use of pesticides by farmers and the use of explosives during quarrying or construction activities. See id. In these cases, the application of the product to the land is a necessary and intended purpose of the use of that product and is therefore not regulated by RCRA. See id.
135 See 40 C.F.R. § 266.202(a).
136 See 62 Fed. Reg. at 6628.
137 See 40 C.F.R. § 266.202(a)(1)(i).
138 See id. § 266.202(a)(1)(ii).
139 See id. § 266.202(a)(1)(iii).
140 See id. § 266.202(a)(1)(i)-(iii).
141 See id. § 266.202(a)(1)(i).
142 See Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6628 (1997).
143 See id.
144 See id.
145 See 40 C.F.R. § 266.202(a)(1)(ii).
146 See 62 Fed. Reg. at 6628.
147 See id.
148 See 40 C.F.R. § 266.202(a)(1)(iii); 62 Fed. Reg. at 6628. In contrast, however, the EPA has banned both live-fire training and the on-site destruction of UXO discovered at the Camp Edwards firing ranges due to the threat of release of propellant/contaminants posing harm to the public. See EPA Administrative Order SDWA-1–1997–1019 [hereinafter EPA Order I]; EPA Administrative Order SDWA-1–1997–1030 [hereinafter EPA Order II].
149 See 40 C.F.R. § 266.202(a)(1)(iii); 62 Fed. Reg. at 6628.
150 See 40 C.F.R. § 266.202(c).
151 See id.
152 See id.
153 Id. § 266.202(d); see 62 Fed. Reg. at 6632.
154 See 62 Fed. Reg. at 6632.
155 See id. The EPA likens the failure to retrieve and render safe munitions that land off-range to the failure to respond to the spill of a hazardous material. In both instances, the EPA believes that failure to respond indicates the requisite intent to discard. See id.
156 See Plater et al., supra note 69, at 768.
157 See Resource Conservation and Recovery Act, 42 U.S.C. § 6924(y)(1) (1988 & Supp. V 1993).
158 See 62 Fed. Reg. at 6636; see also Bell I, supra note 35, at 49.
159 See Bell I, supra note 35, at 49.
160 40 C.F.R § 266.203(a) (West 2000); see 62 Fed. Reg. at 6634.
161 See 40 C.F.R. § 266.203(a); 62 Fed. Reg. at 6634.
162 See 40 C.F.R. § 266.203(a); 62 Fed. Reg. at 6634. Munitions shipments must comply with existing DOD shipping administrative requirements such as the use of a Government Bill of Lading (GSF SF 1109), Requisition Tracking Form (DD Form 1348), Signature and Talley Record (DD Form 1907), Special Instructions for Motor Vehicle Drivers (DD Form 836), and Motor Vehicle Inspection Report (DD Form 626). See Bell I, supra note 35, at 51.
163 See 40 C.F.R. § 266.203(a).
164 See id. § 266.205.
165 See id.; Bell I, supra note 35, at 51.
166 See 40 C.F.R. § 266.205.
167 See Resource Conservation and Recovery Act, 42 U.S.C. § 6926 (1988 & Supp. V 1993); 62 Fed. Reg. at 6648.
168 See 42 U.S.C. §§ 6928, 6933, 7003; 62 Fed. Reg. at 6648.
169 See 42 U.S.C. § 6929; 62 Fed. Reg. at 6648.
170 See 42 U.S.C. § 6929; 62 Fed. Reg. at 6648.
171 See 42 U.S.C. § 6929; 62 Fed. Reg. at 6648; Major Richard M. Lattimer, Jr., Myopic Federalism: the Public Trust Doctrine and Regulation of Military Activities, 150 Mil. L. Rev. 79, 140 (1995).
172 See 62 Fed. Reg. at 6648.
173 See 40 C.F.R. § 266.202(d) (West 2000); 62 Fed. Reg. at 6648.
174 See 40 C.F.R. §§ 264.1(g)(8)(iv), 265.1(c)(11)(iv), 270.1(c)(3)(iii); 62 Fed. Reg. at 6648.
175 See 62 Fed. Reg. at 6649.
176 See id.; Bell I, supra note 35, at 52; Lattimer, supra note 168, at 140.
177 See 40 C.F.R. §§ 260–270.
178 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
179 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287.
180 See Federal Facilities Compliance Act § 107; H.R. Rep. No. 102-111; H.R. Rep. No. 102–886 (1992), reprinted in 1992 U.S.C.C.A.N. 1317.
181 See Federal Facilities Compliance Act § 107; H.R. Rep. No. 102-111; H.R. Rep. No. 102-886.
182 See generally Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998). The MTP, represented by two law students from the University of Maryland, describes itself as “a coalition of grassroots community groups, veterans, active military personnel, environmental justice networks, and labor, all working together toward preventative solutions to the Department of Defense pollution.” See MTP Press Conference, supra note 33.
183 See Military Toxics Project, 146 F.3d at 948; MTP Press Conference, supra note 33.
184 See Military Toxics Project, 146 F.3d at 953; Lieutenant Colonel David Bell, Court Reviews EPA’s Munitions Rule, available at <http://aecwww.apgea.army.mil:8080/prod/usaec/ op/update/sum98/epa-rule.htm> [hereinafter Bell II].
185 Military Toxics Project, 146 F.3d at 954.
186 Id. See generally Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Step one of the Chevron two-step analysis gives the court a great deal of latitude in determining whether Congress has “directly spoken” to the “precise question at issue.” Plater et al., supra note 69, at 429. Further, much of this analysis depends upon the extent of the court’s review of congressional intent. See id. For example, will courts look only to the statutory language of the provision at issue, or will they consider the full legislative history? See id.
187 See Military Toxics Project, 146 F.3d at 954.
188 See id.; see also Plater et al., supra note 69, at 429–30.
189 See Military Toxics Project, 146 F.3d at 953; Bell II, supra note 184.
190 See Military Toxics Project, 146 F.3d at 953; Bell II, supra note 184.
191 See Military Toxics Project, 146 F.3d at 955.
192 Id.
193 See id. at 953; Bell II, supra note 184.
194 See Resource Conservation and Recovery Act, 42 U.S.C. § 6921(a) (1988 & Supp. V 1993).
195 See id. § 6924(y).
196 See Military Toxics Project, 146 F.3d at 957.
197 See id.
198 See id. at 955.
199 Id.
200 See id.
201 Military Toxics Project, 146 F.3d at 955.
202 See id.
203 See id.
204 See id.
205 See id. at 956.
206 See Military Toxics Project, 146 F.3d at 956.
207 Id.
208 See id.
209 See id.
210 See id.
211 Military Toxics Project, 146 F.3d at 956.
212 Id. at 957.
213 See id. at 958.
214 See id.
215 See id.
216 See Military Toxics Project, 146 F.3d at 958.
217 See id.
218 See id. at 959.
219 Id.
220 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
221 See Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6632 (1997).
222 See Bell I, supra note 35, at 52.
223 See id.
224 See Lieutenant Colonel David Bell, Regulators Publish Rule to Identify, Manage Munitions Waste, available at <http://aecwww.apgea.army.mil:8080/prod/usaec/op/update/ spr97/munition.htm> [hereinafter Bell III].
225 See Federal Facilities Compliance Act § 107; 62 Fed. Reg. at 6626.
226 See Bell III, supra note 224.
227 See 62 Fed. Reg. at 6635.
228 See id.
229 See id.; Bell I, supra note 35, at 49.
230 See MTP Press Conference, supra note 33. Cathy Hinds, Executive Director of the Military Toxics Project, has opined that due to “eleventh hour” political pressures from the DOD, the EPA reworked the Munitions Rule, stating “the EPA has, with a gun to its head, violated their own mission to protect human health and the environment and the fingerprints all over that smoking gun belong to the Pentagon.” Id.
231 See generally Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998).
232 See infra notes 233-240 and accompanying text.
233 See generally Military Toxics Project, 146 F.3d at 948.
234 See id. at 953; Plater et al., supra note 69, at 768–69.
235 See MTP Press Conference, supra note 33.
236 See 40 C.F.R. § 266.202(a)(1) (West 2000); Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6628–6632 (1997). The MTP has called this situation a “fox guarding the henhouse scenario.” MTP Press Conference, supra note 33.
237 See Military Toxics Project, 146 F.3d at 954–56; 62 Fed. Reg. at 6631.
238 See 40 C.F.R. §§ 266.203(a)(1), 266.205(a)(1); 62 Fed. Reg. at 6635.
239 The MTP has argued that “[t]he Defense Department has not done a good job of protecting health and the environment leaving a legacy of pollution for future generations to come. With external oversight at its industrial facilities, it’s improved its record. Without external oversight at its munitions facilities, [the Defense Department] will continue to endanger public health and the environment.” MTP Press Conference, supra note 33.
240 See 40 C.F.R. §§ 266.203(a)(1)(i)-(iv); 266.205(a)(1)(i)-(vii).
241 See Scott Allen, Guard will offer plan to protect Cape water, Boston Globe, Nov. 11, 1998, at A1.
242 See Massachusetts Military Reservation, Base History (visited Dec. 4, 1998) <http://www.mmr.org/mmr1/bashist.htm> [hereinafter Base History].
243 See EPA Order I, supra note 148; EPA Order II, supra note 148.
244 See Base History, supra note 242.
245 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287; H.R. Rep. No. 102–886 (1992), reprinted in 1992 U.S.C.C.A.N. 1317.
246 See MTP Press Conference, supra note 33. Cf. Bell I, supra note 35, at 52.
247 See generally H.R. Rep. No. 102–111; H.R. Rep. No. 102–886; MTP Press Conference, supra note 33.
248 See Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6649 (1997); Bell I, supra note 35, at 52.
249 See generally H.R. Rep. No. 102–111. “RCRA regulation must clearly be modified so that the military can conduct training exercises that fulfill their fundamental purpose of training soldiers.” Id.
250 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
251 See generally H.R. Rep. No. 102–111; H.R. Rep. No. 102–886.
252 See generally H.R. Rep. No. 102–111; H.R. Rep. No. 102–886.
253 The EPA stated that the final Munitions Rule ensures that EPA oversight of the military under RCRA will involve “a minimum of interference” with the military’s established system, and will “not conflict with the Service’s logistical needs or constraints.” 62 Fed. Reg. at 6627. Further, the EPA concluded that in order to “minimize the chances for confusion or error, military training should duplicate to the maximum extent possible the conditions encountered by military personnel in combat.” Id.
254 Federal Facilities Compliance Act § 107; see Resource Conservation and Recovery Act, 42 U.S.C. § 6924(y) (1988 & Supp. V 1993).
255 See 40 C.F.R. § 266.202 (West 2000).
256 See id. § 266.202(a)(1).
257 See 62 Fed. Reg. at 6630. The EPA has used the intended-use principle for pesticides and the use of explosives, such as dynamite, that involve application of the product to the land in the ordinary manner of use. See id. Even if the function of the material ends with application to the land, as in the explosion of dynamite, the EPA does not consider the residuals of the material to constitute waste. See id.
258 See 40 C.F.R. §266.202(a)(1); 62 Fed. Reg. at 6628. Only when the element of abandonment is present, and the material is deemed “discarded,” does the material then come under RCRA regulation as a solid waste. See 62 Fed. Reg. at 6628.
259 See generally 989 F.2d 1305 (2d Cir. 1993).
260 See id.; 62 Fed. Reg. at 6630.
261 See 62 Fed. Reg. at 6630; Bell I, supra note 35, at 50.
262 See Lattimer, supra note 171, at 140.
263 See id. at 140–41.
264 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287; H.R. Rep. No. 102–886 (1992), reprinted in 1992 U.S.C.C.A.N. 1317.
265 See Bell I, supra note 35, at 52.
266 See 62 Fed. Reg. at 6636.
267 See Resource Conservation and Recovery Act, 42 U.S.C. §§ 6972(a)(1)(B), 6973 (1988 & Supp. V 1993); 40 C.F.R. § 261.1(b)(2) (West 2000); Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998). “[M]aterial 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.’” Military Toxics Project, 146 F.3d at 951.
268 See id.
269 See 62 Fed. Reg. at 6632.
270 See EPA Region 1, EPA Orders Further Training Restrictions and Cleanup at Camp Edwards (visited Feb. 26, 1999) <http://www.epa.gov.htm> [hereinafter EPA Press Release I]; Department of Environmental Protection, DEP Orders Military to Treat Contaminated Well at MMR, Develop Long-Term Water Source (visited Nov. 20, 1998) <http://www.magnet.state. ma.us/dep/pao/files/mmr.htm> [hereinafter DEP Order].
271 See Letter from John P. DeVillars, EPA Region 1 Administrator, “EPA Urging Massachusetts National Guard to Withdraw Draft Environmental Impact Statement (EIS) at Massachusetts Military Reservation (MMR) and Delay Proposed Expansion Pending Results of Ongoing Impact Area Studies,” (Jan. 24, 1997), available at <http://www.epa.gov.htm> [hereinafter DeVillars Letter]. Within this letter, the EPA stated that its authority to intervene at Camp Edwards was grounded not within the Munitions Rule regulations, but in RCRA’s “imminent and substantial danger” provision. See id.
272 See EPA Press Release I, supra note 270; DEP Order, supra note 270.
273 See 62 Fed. Reg. at 6636.
274 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924); H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287; H.R. Rep. No. 102–886 (1992), reprinted in 1992 U.S.C.C.A.N. 1317.
275 See H.R. Rep. No. 102–111; H.R. Rep. No. 102–886; 62 Fed. Reg. at 6636.
276 H.R. Rep. No. 102–111.
277 See Federal Facilities Compliance Act § 107; 40 C.F.R. § 266.202 (West 2000); Bell I, supra note 35, at 49.
278 See Bell I, supra note 35, at 49.
279 See generally H.R. Rep. No. 102–111. Congress noted that “[i]t is irresponsible to report out a bill that forces bomb disposal units to consider the complexities of complying with RCRA requirements when deciding whether to move or detonate an unexploded shell in place. RCRA was never intended to apply to such life and death situations. No one intends that environmental compliance should magnify the safety hazards associated with explosives.” Id.
280 See generally id. The EPA also exempted emergency response activities from RCRA’s generator, transporter, and permitting requirements. See 62 Fed. Reg. at 6636. Therefore activities in response to munitions and explosives-related emergencies need not be distracted by RCRA’s complicated administrative and substantive requirements. See Bell I, supra note 35, at 52.
281 See 62 Fed. Reg. at 6636.
282 See id. The EPA stated, “given the protective nature of the DDESB standards, and the Service’s record in providing for the safe storage of military munitions, the Agency believes that RCRA subtitle C regulation is not necessary for waste military munitions managed in compliance with these standards.” Id.
283 See id. at 6633, 6635. “Features of the DOD transportation system include pre-trip routing plans, safe havens and secure holding areas for vehicles experiencing difficulties or for overnight storage, safe haven hotline, satellite motor surveillance and tracking, shipper seals, dual driver protective and escort services, firefighting instructions, and electronic notifications/communications between shipper, carrier and receiver.” Id. at 6634. The DOD mandatory standards for transportation of munitions also address packaging, labeling, marking, placarding, emergency response, training, and shipping documentation. See id.
In order to qualify for the conditional storage exemption, waste non-chemical munitions must be subject to the jurisdiction of the DDESB, managed in accordance with the DDESB’s published standards (no waivers allowed), stored in units identified to regulators, inventoried annually, and inspected quarterly. See Bell, supra note 35, at 51. “The EPA found that the DDESB standards provide design and operating standards that ... minimize the potential for explosions and minimize the impact should an explosion occur, based on four factors that relate to the physical and chemical characteristics of these materials: (1) compatibility groupings, (2) hazardous class, (3) net explosive weight (NEW), and (4) quantity distance formulae.” 62 Fed. Reg. at 6637.
284 Id. at 6634.
285 See Resource Conservation and Recovery Act, 42 U.S.C. § 6921 (1988 & Supp. V 1993); 62 Fed. Reg. at 6636.
286 See 62 Fed. Reg. at 6636.
287 42 U.S.C. § 6921; see 62 Fed. Reg. at 6636.
288 See 62 Fed. Reg. at 6636.
289 42 U.S.C. §§ 6922-6924; 62 Fed. Reg. at 6636.
290 62 Fed. Reg. at 6636; see 42 U.S.C. §§ 6922-6924.
291 See 62 Fed. Reg. at 6636. The D.C. Circuit has twice upheld the EPA’s interpretation that the agency may consider the existence of other regulatory programs in determining whether RCRA regulation is necessary to protect human health and the environment. In Edison Electric Institute v. EPA, a temporary exemption was upheld for petroleum-contaminated media because the potential hazards of the material were already regulated by the underground storage tank regulations of RCRA Subtitle I. See generally 2 F.3d 438 (D.C. Cir. 1993). Similarly, in NRDC v. EPA, the court upheld an EPA finding that alternative management standards for used oil promulgated under RCRA section 3014 reduced the risks of mismanagement for such oil, and therefore it was not necessary to list the waste again under Subtitle C. See generally 25 F.3d 1063 (D.C. Cir. 1994). You may note, however, that neither of these cases involved management standards outside the scope of EPA authority, as the DOD regulations are.
292 See 62 Fed. Reg. at 6636.
293 See id.
294 See id.
295 See id.
296 See id. at 6635, 6637.
297 See 62 Fed. Reg. at 6634.
298 See id.
299 See id.
300 See id. at 6637.
301 See id.
302 See 62 Fed. Reg. at 6637.
303 See id. at 6630.
304 See Military Toxics Project v. EPA, 146 F.3d 948, 955 (D.C. Cir. 1998); 62 Fed. Reg. at 6630.
305 62 Fed. Reg. at 6630. The EPA pointed out that in the case of dynamite used for construction, mining, and road-clearing, RCRA was not triggered despite the fact that the residuals no longer served a function on the land. See id.
306 See Military Toxics Project, 146 F.3d at 955.
307 Id.
308 See 40 C.F.R. § 266.202(a)(1) (West 2000); 62 Fed. Reg. at 6630.
309 See MTP Press Conference, supra note 33.
310 See Military Toxics Project, 146 F.3d at 954.
311 See 62 Fed. Reg. at 6630. “The bulk of reports that EPA has reviewed, including those cited by commenters, do not provide enough information to conclude that ground or surface water contamination does or does not result from fired munitions on ranges. This is partly because the studies or reports do not adequately document . . . or that the source was, indeed, fired munitions; or whether it might be some other source on or off range.” Id.; Cf. EPA Press Release I, supra note 270; EPA Order I, supra note 148; EPA Order II, supra note 148. The EPA suspended the use of munitions at Camp Edwards due to the potential contamination of the Upper Cape’s drinking water supply from munitions-related contaminants. See EPA Order I, supra note 148; EPA Order II, supra note 148.
312 See Massachusetts Department of Environmental Protection, Contaminants Found in MMR Drinking Water Well (visited Nov. 20, 1998) <http://www.magnet.state.ma.us/dep/ pao/files/jwell.htm>. At Camp Edwards, munitions-related contaminants include: dinitrotoluene (DNT), a propellant used in both live and non-live artillery firing; hexachloroethane (HCE), a chemical used in pyrotechnics; Royal Dutch Explosive (RDX), TNT, and Her Majesty’s Explosive (HMX), explosives compounds; and lead. See id. All are considered potential human carcinogens, and lead is a toxic metal. See EPA Press Release I, supra note 270. Also consider that Massachusetts has banned the use of lead shot in waterfowl hunting since 1990 due to the known risk of lead poisoning from release into the environment. See Mass. Gen. Laws c. 131, § 66 (West 1999); Mass. Regs. Code tit. 321, § 2.03 (West 1999); see also Smoking Gun, Cape Cod Times, Jan. 10, 1997.
313 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107(1), 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924) (“Any such regulations shall assure protection of human health and the environment.”). Cathy Hinds of the MTP has protested that, “the Defense Department is thumbing their nose at the very law that mandated external oversight of the Pentagon in the Federal Facilities Compliance Act.” MTP Press Conference, supra note 33.
314 See 62 Fed. Reg. at 6628, 6629–6632.
315 See 40 C.F.R. § 266.202(a)(1)(i) (West 2000); 62 Fed. Reg. at 6628.
316 See 40 C.F.R. § 266.202(a)(1)(ii); 62 Fed. Reg. at 6628.
317 See 40 C.F.R. § 266.202(a)(1)(ii); 62 Fed. Reg. at 6628.
318 See 62 Fed. Reg. at 6630.
319 See id. at 6631.
320 See Military Toxics Project v. EPA, 146 F.3d 948, 954–55 (D.C. Cir. 1998).
321 See id.; 62 Fed. Reg. at 6631.
322 See 40 C.F.R § 266.202(a)(1)(ii).
323 See id.
324 See id. § 266.202(a)(1)(i). For a discussion of the controversy surrounding the burning of propellant for training purposes at Camp Edwards, see generally Mission of Folly, Cape Cod Times, Jan. 5, 1997.
325 See 62 Fed. Reg. at 6631.
326 See MTP Press Conference, supra note 33.
327 See id.; see also 62 Fed. Reg. at 6631.
328 See 62 Fed. Reg. at 6631.
329 See generally Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998).
330 See 62 Fed. Reg. at 6634, 6637.
331 See Military Toxics Project, 146 F.3d at 959.
332 Id. at 958.
333 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287.
334 H.R. Rep. No. 102–111.
335 See generally H.R. Rep. No. 102–111. Cf. 62 Fed. Reg. at 6634, 6636.
336 See 62 Fed. Reg. at 6632–6639; Military Toxics Project, 146 F.3d at 958.
337 See Plater et al., supra note 69, at 764.
338 See Resource Conservation and Recovery Act, 42 U.S.C. § 6921 (1988 & Supp. V 1993).
339 Letter from Senator John Kerry to Carol Browner, EPA Administrator, quoted in Smoking Gun, supra note 312.
340 See 40 C.F.R. § 266.203(a)(iv) (West 2000).
341 See id. § 266.203(a)(iv); 62 Fed. Reg. at 6635.
342 See 62 Fed. Reg. at 6631; MTP Press Conference, supra note 33.
343 See 42 U.S.C. § 6921. Cf. 40 C.F.R. § 361.
344 See 62 Fed. Reg. at 6631.
345 See id. The EPA recommends that regulators look for the existence and use of training manuals, the presence of military trainees, and documentation of training activities as evidence of legitimate training. See id.
346 See id.
347 See Mission of Folly, supra note 324.
348 See EPA Press Release I, supra note 270. In a precedent-setting precautionary step, however, the Adjutant General of the Massachusetts National Guard put an end to the practice of burning unused propellant bags in 1993, well before the EPA’s 1997 order. See Massachusetts Military Reservation, A Message from the General (visited Feb. 26, 1999) <http://www.state.ma.us/guard/pao/mmr.htm>. The National Guard has implemented a program to recycle the unused propellant bags. See id.
349 See MTP Press Conference, supra note 33.
350 See generally H.R. Rep. No. 102–111 (1991), reprinted in 1991 U.S.C.C.A.N. 1287.
351 See Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
352 See generally H.R. Rep. No. 102–111; H.R. Rep. 102–886 (1992), reprinted in 1992 U.S.C.C.A.N. 1317.
353 See generally H.R. Rep. No. 102–111. “This provision is necessary to restore the faith of the American people that protection of human health and the environment will not give way either to bureaucratic recalcitrance, the lack of funding, or simple inactivity.” Id.
354 See H.R. Rep. No. 102–111; Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622, 6623 (1997).
355 United States Congress, Office of Technology Assessment, Complex Cleanup: The Environmental Legacy of Nuclear Weapons Production, quoted in H.R. Rep. No. 102–111 (emphasis added).
356 See generally H.R. Rep. No. 102–111.
357 See 40 C.F.R. § 266.20 (West 2000).
358 See generally H.R. Rep. No. 102–111; see also MTP Press Conference, supra note 33.
359 See generally H.R. Rep. No. 102–111. The report documents EPA and state enforcement agency frustration with attempts to obtain military compliance with hazardous waste regulations at the Portsmouth Naval Shipyard, Maine; Picatinny Army Arsenal, New Jersey; and the U.S. Coast Guard Support Center, North Carolina. See id. Specifically, at the Picatinny Army Arsenal, EPA reports noted that the military’s practices led to “the unauthorized operation of many RCRA treatment and storage units, and extensive soil and groundwater contamination.” Id.
360 See generally H.R. Rep. No. 102–111. For example, J. Joseph Curran, Jr., Attorney General of Maryland, stated that the FFCA would “begin to restore public confidence that the federal government is facing up to its obligations and being regulated in a credible manner.” Id. (emphasis added). Michael Steiner, Assistant Director, Pennsylvania Department of Environmental Resources, argued that “[a]bsent clear state environmental authority, the military has been inflexible and extremely slow to deal with their environmental problems.” Id.
361 See generally H.R. Rep. No. 102–111. Cf. Federal Facilities Compliance Act, Pub. L. No. 102–386, § 107, 106 Stat. 1513 (1992) (amending RCRA § 3004, 42 U.S.C. § 6924).
362 See generally 146 F.3d 948 (D.C. Cir. 1998); H.R. Rep. No. 102–111; see also Plater et al., supra note 69, at 429.
363 For example, President Clinton recently imposed a moratorium on live-fire training at Vieques Island, Puerto Rico in the face of overwhelming public opposition. See Elizabeth Becker, President Halts Target Practice by Navy on Puerto Rican Island, N.Y. Times, Dec. 4, 1999, available at <http://archives.nytimes.com>. According to Brigadier General James Boddie Jr., commander of Picatinny Arsenal in New Jersey, 700 of 16,000 military firing ranges have been closed nationwide due to lead contamination. See Smoking Gun, supra note 312.
364 See Base History, supra note 242.
365 See id. Those involved include, for example, on the federal level: John DeVillars, Region 1 Administrator, EPA; the Pentagon’s National Guard Bureau (NGB); and U.S. Senators John Kerry and Edward Kennedy. On the state level, Governor Paul Cellucci; Massachusetts DEP; Massachusetts Army National Guard; and State Representative William Delahunt. Locally: the Town of Falmouth; Citizens United for the Massachusetts Military Reservation Watershed and Wildlife Refuge; Friends of the Massachusetts Military Reservation; and the Alliance for Base Cleanup. See id.
366 See id.
367 See id.
368 See id.
369 See Base History, supra note 242.
370 See Mission of Folly, supra note 324; see also EPA Order I, supra note 148; EPA Order II, supra note 148. Prior to the 1997 EPA ban on live-fire training, Camp Edwards supported heavy gun use fifteen to twenty-one days a year. See Mission of Folly, supra note 324; see also EPA Order I, supra note 148; EPA Order II, supra note 148.
371 See Base History, supra note 242.
372 See Smoking Gun, supra note 312.
373 See EPA Administrative Order SDWA-1–2000–0014 [hereinafter EPA Order III]; Scott Allen, EPA to Order Guard to Clean Up Cape Base, Boston Globe, Jan. 7, 2000, available at <http://commerce.boston.com/bg_archives/newarch.cgi>.
374 See EPA Order III, supra note 373; see also Cape Cod Aquifer Determination, 47 Fed. Reg. 30282, 30282 (1982).
375 See EPA Order III, supra note 373.
376 See EPA Orders Extensive Cleanup of Mass. Military Reservation on Cape Cod, EPA Press Release # 00–01–05, Jan. 7, 2000, available at <http://www.epa.gov/region01.htm> [hereinafter EPA Press Release II].
377 See id.; see also 47 Fed. Reg. at 30283.
378 The NGB is an agency of the Pentagon that oversees the various state National Guards. See Allen, EPA to Order Guard to Clean Up Base, supra note 373.
379 See EPA Order I, supra note 148; see also EPA Order III, supra note 373.
380 See EPA Order II, supra note 148; see also EPA Order III, supra note 373.
381 See EPA Order III, supra note 373. The effects of lead exposure are well documented. Lead can adversely affect the brain and central nervous systems, and is associated with anemia, kidney damage, impaired reproductive function, interference with vitamin D metabolism, impaired cognitive performance, delayed physical development, and elevations in blood pressure. See id. Lead also has the potential to bioaccumulate, which means that lead in prey organisms (plant or animal) is passed into those of predator organisms. See id.
382 See EPA Press Release II, supra note 376; EPA Order III, supra note 373. RDX is “a highly hazardous constituent used in explosives and rat poison” that targets the nervous system and is a possible human carcinogen. EPA Press Release II, supra note 376; EPA Order III, supra note 373. To date, RDX has been found in twenty monitoring wells, exceeding federal health advisory limits in eighteen of those twenty. See EPA Press Release II, supra note 376. TNT is also a possible human carcinogen, associated with skin irritation and cataracts, as well as disorders of the blood, liver, spleen, immune system, and reproductive system. See EPA Order III, supra note 373. HDX may be harmful to humans, and is potentially associated with liver damage and central nervous system damage. See id.
383 See id. Exposure to relatively small amounts of nitroglycerin can produce intense headaches, often associated with nausea and abdominal pain, while exposure to larger amounts may result in hypotension, depression, confusion, occasional delirium, and cyanosis. See id.
384 See id. Accordingly, the EPA could have issued the Administrative Order under the authority of RCRA Subtitle G for “imminent and substantial endangerment to ... the environment.” See supra notes 83-90 and accompanying text.
385 See EPA Order III, supra note 373; Allen, EPA to Order Guard to Clean Up Cape Base, supra note 373; Jeffrey Burt, EPA Will Require Cleanup of Water, Ordnance on Base, Cape Cod Times, Jan. 7, 2000, available at <http://www.capecodonline.com/cctimes/archive/2000/ jan/7/epawill7.htm>.
386 See Allen, EPA to Order Guard to Clean Up Cape Base, supra note 373; Burt, supra note 385. The unprecedented administrative order was John DeVillars’s final act in office after six years as the Regional Administrator. See Burt, supra note 385.
387 Allen, EPA to Order Guard to Clean Up Cape Base, supra note 373; Burt, supra note 385.
388 See Safe Drinking Water Act, 42 U.S.C. § 300(f) (West 1999). The SDWA sole source aquifer program authorizes the EPA to designate and protect any aquifer which is the “sole or principal drinking water source for [an] area and which, if contaminated, would create a significant hazard to public health.” Id. § 300h-3(a)(1); Dycus, supra note 2, at 56; see EPA Order III, supra note 373. The SDWA further provides the EPA with special authority in emergency situations, such as if it is discovered that a contaminant has entered, or is likely to enter, a public water supply. See 42 U.S.C. § 300i(a); Dycus, supra note 2, at 57. The SDWA explicitly applies to federal facilities. See 42 U.S.C. § 300j-6(b); Dycus, supra note 2, at 57.
389 See Allen, EPA to Order Guard to Clean Up Cape Base, supra note 373; Burt, supra note 385.
390 See Burt, supra note 385. EPA Region 1 Administrator DeVillars stated, “[m]y job is to use the strongest tools I have to get this work done, and that’s why I am using the Safe Drinking Water Act.” Id. This ambitious decision may indeed render the Munitions Rule’s broad deferential policy moot, as the EPA might avoid the RCRA quagmire altogether by regulating munitions under the guise of alternative statutes. See id.
391 See Allen, EPA to Order Guard to Clean Up Cape Base, supra note 373; Burt, supra note 385.
392 See Allen, EPA to Order Guard to Clean Up Cape Base, supra note 373; Burt, supra note 385. It is also estimated that the acreage of all active and inactive artillery ranges across the United States totals 65 million. See Burt, supra note 385.
393 See H.B. 4085, 181st General Court, Reg. Sess. (Mass. 1999); see also Dan Ring, Base Bill Gets Vital OK from Panel, Cape Cod Times, Oct. 26, 1999, available at <http://www.capecodonline.com/cctimes/archives/1999/oct/26/basebill26.htm>. On October 25, 1999, Governor Cellucci testified before the state legislature’s Committee on Natural Resources and Agriculture endorsing the bill, which the Committee unanimously approved. See Ring, supra.
394 See H.B. 4085; Ring, supra note 393.
395 See Exec. Order No. 414 (Oct. 8, 1999); see also Ring, supra note 393.
396 See Exec. Order No. 414 (Oct. 8, 1999); see also Ring, supra note 393. There are several alternatives being developed to promote environmentally friendly combat training. For example, the DOD recently approved the use of “green bullets” by troops. “Green bullets” are made of tungsten rather than lead, and therefore do not contaminate the environment.
397 See Exec. Order No. 414 (Oct. 8, 1999).
398 See Ring, supra note 393.
399 See id.
400 See 146 F.3d 948, 951 (D.C. Cir. 1998).
401 See generally Dycus, supra note 2.