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Student Publications Homepage
ARTICLE CONTENTS
[Pages 467-518]
TOP OF ARTICLE
Introduction
I. History
A. Military Deference
1. The “Unitary Executive” Theory
2. The Doctrine of “Sovereign Immunity”
B. The Resource Conservation and Recovery Act
1. Statutory and Regulatory Definitions of “Solid Waste” Under RCRA
2. RCRA’s “Cradle-to-Grave” Regulatory Scheme
C. The Federal Facilities Compliance Act of 1992
II. The Military Munitions Rule
A. When Military Munitions Become Hazardous Waste
1. Unused Munitions
a. Unused Munitions That Have Been Discarded
b. Munitions Removed from Storage for Purposes of Treatment or Disposal
c. Leaking or Deteriorated Munitions
d. Munitions Determined to Be Solid Waste by an Authorized Military Official
2. Intended Use of Military Munitions
a. Training Exercises
b. Weapons Research, Development, Testing, and Evaluation
c. On-Range Recovery, Collection, and Destruction
3. Used or Fired Munitions
B. Regulations for the Storage and Transportation of Military Munitions
1. Transportation Standards
2. Storage Standards
C. State Authority
III. Analysis of the Military Munitions Rule
A. Military Toxics Project v. EPA
1. The Military Toxics Project’s Arguments
2. The Findings of the D.C. Circuit
a. The Intended-Use Principle
i. Chevron Analysis
ii. Arbitrary and Capricious Review
b. Conditional Exemption for Transportation and Storage of Non-Chemical Munitions
i. Chevron Analysis
ii. Arbitrary and Capricious Review
B. Legal and Policy Analysis of the Munitions Rule
1. Support for the Munitions Rule
a. The National Defense Mission: Minimizing EPA Oversight in the Name of Combat Readiness
b. The Intended-Use Principle: The EPA’s Rational Policy Choice
c. Avoiding Duplicative Regulation: RCRA and the Military’s Unique Expertise
i. The DOD’s Storage and Transportation Standards
ii. The DOD’s Record in Munitions Storage and Transportation
2. Criticism of the Munitions Rule
a. The Intended-Use Principle: The EPA’s Dissimilar Treatment of Similarly Situated Munitions
i. Use Versus Effect
3. Classifications of Intended Uses
a. Gaps Between the RCRA and DOD Transportation and Storage Standards
b. The Munitions Rule: An End-Run Around the FFCA and RCRA
IV. Camp Edwards: Environmental Battleground
A. Camp Edwards’s Facilities
B. Munitions-Related Contamination
C. From Weapons Training to Nature Preservation
Conclusion
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