Military Toxics Project v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 1998 Decided June 30, 1998

No. 97-1342

Military Toxics Project,

Petitioner

v.

Environmental Protection Agency and

Carol M. Browner, Administrator, U.S. Environmental

Protection Agency,

Respondents

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. De-
partment of Justice, argued the cause for respondents, with

whom Lois J. Schiffer, Assistant Attorney General, and Jona-
than 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, and David F.
Zoll were on the joint brief.

Before: Edwards, Chief Judge; Ginsburg and Tatel,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

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.
ss 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 regu-
late 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. s 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 inca-
pacitating reversible, illness; or

(B) pose a substantial present or potential hazard to
human health or the environment when improperly treat-
ed, stored, transported, or disposed of, or otherwise
managed.
42 U.S.C. s 6903(5). Subtitle C of the RCRA, 42 U.S.C.
ss 6921 et seq., provides a stringent " 'cradle-to-grave' regula-

tory structure overseeing the safe treatment, storage and
disposal of hazardous waste," United Technologies v. EPA,
821 F.2d 714, 716 (D.C. Cir. 1987), and charges the Adminis-
trator 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 the provi-
sions of [Subtitle C]." 42 U.S.C. s 6921(a).

A.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 subti-
tle C of RCRA." 40 C.F.R. s 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 mate-
rial" and in turn define discarded material as, among other
things, "abandoned." 40 C.F.R. s 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 dis-
posed of, burned, or incinerated.

40 C.F.R. s 261.2(b). According to the EPA, the element of
abandonment in the regulatory definition of solid waste ren-
ders 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 Administra-
tor 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, reac-
tivity, 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 (s 7003)--or, indeed,
"any person" (s 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. ss 6972(a)(1)(B) & 6973;
see 40 C.F.R. s 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 estab-
lished").

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 Subti-
tle C.

B.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, s 107,
106 Stat. 1505, 1513-14 (codified at 42 U.S.C. s 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 mili-

tary munitions become hazardous waste for purposes of [Sub-
title C] and providing for the safe transportation and storage
of such waste." 42 U.S.C. s 6924(y)(1).

The Administrator responded to the mandate of s 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 or stores muni-
tions 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 muni-
tions are not 'discarded.' " 62 Fed. Reg. at 6630. According-
ly, 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 unex-
ploded ordnance and munitions fragments during range
clearance activities at active or inactive ranges. Howev-
er, "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. s 266.202(a)(1)(iii).

A used or fired military munition comes within the regula-
tory 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. s 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.
s 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. s 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
and hence subject to the authorities of Subtitle G for dealing
with an imminent and substantial hazard. If someone moves
a fired military munition off range or disposes of it on range,
then it becomes a regulatory solid waste for purposes of
Subtitle C.

2. Munitions in storage and transport

The Department of Defense has issued comprehensive de-
sign and operating standards for the safe storage of all
military munitions. See DOD Ammunition and Explosives
Safety Standards, DOD 6055.9-STD (Oct. 1992); Defense
Transportation Regulation, Part II, Cargo Movement, DOD
4500.9-R (Apr. 1996). The DOD has also made the standards
for the transportation of hazardous materials promulgated by
the Department of Transportation, see 49 C.F.R. ss 100-179,
350-399, applicable to the transportation of military muni-
tions. The EPA reviewed those standards "in detail" and
determined that, although the DOD storage standards "have
safety as the primary concern," they "meet or exceed RCRA
standards in virtually all respects." 62 Fed. Reg. at 6637
(preamble). Similarly, the EPA concluded that the combined
regulatory regimes of the Departments of Defense and of

Transportation together "provide an equivalent level of pro-
tection of human health and the environment as the require-
ments of the RCRA manifest system." Id. at 6634.

The Military Munitions Rule takes the pre-existing DOD
and DOT regulations into account by granting to non-
chemical munitions that are being managed in accordance
with those regulations a conditional exemption from classifica-
tion as a hazardous waste for purposes of Subtitle C. See 40
C.F.R. ss 266.203(a)(1) (transportation) & 266.205(a)(1) (stor-
age). Thus, a non-chemical military munition that meets the
regulatory definition of solid waste, and that exhibits a haz-
ardous waste characteristic or has been listed as a hazardous
waste pursuant to 40 C.F.R. Part 261, is deemed not a
hazardous waste for purposes of Subtitle C provided that it is
being transported or stored in accordance with the applicable
DOD regulations (and that it meets certain other criteria not
relevant here).

3. Munitions at closed or transferred ranges

As originally proposed the Military Munitions Rule would
have provided that a military munition left on a closed range
or a range transferred out of military control meets the
statutory (but not the regulatory) definition of solid waste.
See Military Munitions Rule, 60 Fed. Reg. 56,468, 56,492
(proposed Nov. 8, 1995) (to be codified at 40 C.F.R.
s 261.1(g)(4)(i)). The EPA omitted this provision from the
final Rule, however, with the following explanation:

EPA's decision to postpone action on this section of the
proposal is based in part on comments the Agency
received on this issue and in part on the fact that DOD
has not yet issued the range cleanup rule currently under
development.... Many commenters questioned EPA's
legal authority to defer RCRA coverage in favor of DOD
regulations governing the cleanup of closed and trans-
ferred ranges. EPA will conduct further analyses of the
comments and of the final DOD regulation.... If either
DOD fails to proceed with the range rule or EPA finds
that the range rule does not adequately protect human
health and the environment, EPA will be prepared to
address this issue under Federal environmental laws.

62 Fed. Reg. at 6632. The status of munitions at closed or
fired ranges is yet to be determined.

C.Judicial Review

The Military Toxics Project, which describes itself as "a
nationwide coalition of citizens' groups," the members of
which "live or work at or near the military facilities where the
practices occur that are governed by the Military Munitions
Rule," petitioned for review of the Rule. The Chemical
Manufacturers Association and other trade associations
moved to intervene on appeal and lodged a joint brief in
support of the EPA.

II. ANALYSIS

The MTP attacks the Military Munitions Rule as contrary
both to the plain meaning of RCRA s 3004(y) and to the
intent of the Congress in enacting that provision, and as
"arbitrary and capricious because it is internally inconsistent,
illogical, and ignores substantial record evidence." Specifical-
ly, the MTP objects to the EPA's positions that (1) because
the normal and intended use of a used or fired military
munition involves its application to the ground, such a muni-
tion has not been "discarded" within the regulatory definition
of "solid waste"; (2) the agency may defer promulgation of a
rule clarifying the regulatory status of military munitions on
closed or transferred military ranges; and (3) the agency may
conditionally exempt from regulation under Subtitle C non-
chemical military munitions that are transported or stored in
accordance with the applicable regulations promulgated by
the Departments of Defense and of Transportation. The
MTP also argues that under the Rule the DOD may imper-
missibly exempt itself, with regard to fired military munitions
that land off range, from any cleanup responsibilities it deems
"infeasible."

A.Standing to Intervene

Before reaching the merits of the MTP's petition we must
decide whether the CMA or any trade association joining its

brief has standing under Article III of the Constitution of the
United States to intervene in this case in support of the EPA.
See City of Cleveland v. Nuclear Regulatory Comm'n, 17
F.3d 1515, 1516-18 (D.C. Cir. 1994) (denying leave to inter-
vene in support of a respondent agency pursuant to 28 U.S.C.
s 2348 for want of standing).

An association has standing to sue on behalf of its members
when:

(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.

Hunt v. Washington Apple Advertising Comm'n, 432 U.S.
333, 343 (1977). In this case all parties agree that the CMA
has standing because some of its members produce military
munitions and operate military firing ranges regulated under
the Military Munitions Rule. These companies are directly
subject to the challenged Rule, and they benefit from the
EPA's "intended use" interpretation (under which most mili-
tary munitions at firing ranges are not solid waste), the
conditional exemption from regulation of storage and trans-
portation under Subtitle C, and other features of the Military
Munitions Rule that the MTP is challenging in this appeal.
These CMA members would suffer concrete injury if the
court grants the relief the petitioners seek; they would
therefore have standing to intervene in their own right, and
we agree with the litigants that the CMA has standing to
intervene on their behalf in support of the EPA.

Because the CMA has standing, we need not determine
whether the other intervenor-applicants listed on the CMA's
brief also have standing. "[I]f one party has standing in an
action, a court need not reach the issue of standing of other
parties when it makes no difference to the merits of the case."
Railway Labor Executives' Ass'n v. United States, 987 F.2d
806, 810 (D.C. Cir. 1993); cf. Duke Power Co. v. Carolina
Envtl. Study Group, 438 U.S. 59, 72 n.16 (1978) ("We need
not resolve the question of whether Duke Power is a proper

party since jurisdiction over appellees' claims against the
NRC is established, and Duke's presence or absence makes
no material difference to either our consideration of the
merits of the controversy or our authority to award the
requested relief"). The presence of names other than that of
the CMA on the intervenors' brief obviously makes no differ-
ence to our consideration of the arguments therein. Accord-
ingly, having assured ourselves that the CMA has standing,
we grant the pending motions to intervene, and we shall take
the intervenors' arguments into account in addressing the
merits of the MTP's claims.

The MTP has moved to strike portions of the intervenors'
brief and of the materials appended thereto on the ground
that the subject materials are not part of the administrative
record. We deny the motion because the challenged materi-
als--a policy document from the EPA and two reports from
the General Accounting Office--are judicially cognizable
apart from the record as authorities marshaled in support of
a legal argument. See Fed. R. App. Proc. 28(a)(6) (brief must
set forth contentions "with citations to the authorities, stat-
utes, and parts of the record relied on").

B.Standard of Review

In this case we may set aside the EPA's action in promul-
gating the Military Munitions Rule only if we find it to be
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." See 42 U.S.C. s 6976(a); 5 U.S.C.
s 706(a)(2). In determining whether a regulation is "in ac-
cordance with law" we apply the familiar two-step test of
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984): if the Congress has "directly
spoken to the precise question at issue," then we "must give
effect to the unambiguously expressed intent of Congress";
otherwise we defer to the agency's reasonable interpretation
of a statute it administers. Id. at 842-43. Relatedly, we
must give an agency's interpretation of its own regulation
"controlling weight unless it is plainly erroneous or inconsis-
tent with the regulation." Stinson v. United States, 508 U.S.

36, 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945)).

C.Intended Use of Military Munitions

Under the challenged Rule a military munition is not a
statutory or regulatory solid waste when it is used "for its
intended purpose." 40 C.F.R. s 266.202(a)(1). According to
the preamble to the final Rule, firing a munition does not
constitute discarding it, so a munition does not become a
regulatory solid waste simply by hitting the ground and
remaining there, see 62 C.F.R. at 6630, and most spent
military munitions will not be regulated pursuant to Subtitle
C. The EPA defends this aspect of the Rule as but one
example of its "longstanding interpretation" of the regulatory
definition of solid waste as excluding products, such as pesti-
cides and fertilizers, the intended use of which involves
application to the land. Compare 40 C.F.R.
s 261.2(c)(1)(B)(ii) ("commercial chemical products ... are
not solid wastes if they are applied to the land and that is
their ordinary manner of use") with id. s 261.33 (listing
commercial chemicals that are hazardous wastes "when they
are otherwise applied to the land in lieu of their intended
use"). The MTP attacks the EPA's intended-use interpreta-
tion of s 3004(y)(1) as both contrary to the meaning and
purpose of the statute and as arbitrary and capricious.

1. The statute

Section 3004(y)(1) requires the EPA to "adopt regulations
identifying when military munitions become hazardous waste
for purposes of [Subtitle C]." 42 U.S.C. s 6924(y)(1). Ac-
cording to the MTP, "[t]he use of the word 'when,' as opposed
to the word 'if,' demonstrates an assumption by Congress that
there are circumstances in which military munitions are 'dis-
carded,' become solid waste, and are subject to regulation as
hazardous waste." Perhaps so; in any event the EPA has
identified such circumstances, see 40 C.F.R. s 266.202(b) &
(c). The MTP nonetheless goes on to accuse the EPA of
avoiding the "clear congressional mandate" of s 3004(y)(1),
apparently because the MTP believes the word "when" in that
section implies the Congress contemplated that all military

munitions would be subject to regulation pursuant to Subtitle
C. While that is not an unreasonable reading of the statute,
we think it hardly rises to the level of "the unambiguously
expressed intent of Congress" required for the petitioner to
prevail under Chevron step one.

Turning to the MTP's Chevron step two argument, we see
that in the preamble to the final Rule the "EPA interprets
RCRA 3004(y) as only requiring the Agency to identify the
circumstances under which military munitions become subject
to the regulatory scheme for identified or listed hazardous
waste promulgated under Subtitle C." 62 Fed. Reg. at 6632.
We are inclined to agree with the EPA that, read in context,
this is the more natural meaning of the word "when." In any
event, under Chevron step two we defer to the EPA's reason-
able interpretation. See, e.g., Engine Mfrs. Ass'n v. EPA, 88
F.3d 1075, 1087 (D.C. Cir. 1996) (upholding the EPA's inter-
pretation of the statutory term "new"). Accordingly, we hold
that the EPA did not violate s 3004(y) of the RCRA when it
excluded from the regulatory definition of solid waste used or
spent munitions lying on the ground.

2. Arbitrary and capricious review

The MTP argues that the intended-use interpretation of
s 3004(y)(1), as applied to military munitions, is arbitrary and
capricious for three reasons. First, the MTP maintains that
the intended-use principle is inapposite to military munitions
because once a military munition fired from a weapon hits the
ground, the unexploded ordnance or explosive residue serves
no further purpose; it should therefore be regarded as dis-
carded within the regulatory definition of solid waste. For
the same reason the MTP distinguishes military munitions
from pesticides and fertilizers, which do perform a function
after they have been applied to the ground.

The distinction that the MTP draws between munitions and
other chemicals applied to the ground is perhaps a reasonable
one; the question for present purposes, however, is not
whether the MTP's position is reasonable but whether the
EPA's position is arbitrary and capricious. The EPA consid-
ered and rejected the MTP's view, deciding instead to focus

upon "whether a product was used as it was intended to be
used, not on whether the purpose of the product is to perform
some function once on the ground." 62 Fed. Reg. at 6630.
The MTP has provided no reason for us to think that the
EPA's focus is irrational or inconsistent with other policies.
See id. ("the use of explosives (e.g., dynamite) for road
clearing, construction, or mining does not trigger RCRA
regulation, even though any residuals on the ground serve no
further function").

Second, the MTP argues that the Military Munitions Rule
is internally inconsistent because it does not regulate fired
munitions that are left undisturbed but does regulate muni-
tions that are buried after firing. The EPA responds that,
unlike the use of a munition--including its landing on the
ground--the subsequent recovery and burial of a munition, or
its placement in a landfill, is an act of discarding "because
munitions are not produced to be buried or landfilled." We
agree with the EPA that the difference in regulatory treat-
ment does not evince a logical flaw in the final Rule.

Finally, the MTP objects that the EPA has not consistently
applied its intended-use interpretation because, while a spent
munition lying undisturbed on a firing range is not a solid
waste, a spent munition that lands off range is a solid waste if
it "is not promptly rendered safe and/or retrieved." 40
C.F.R. s 266.202(d). If firing constitutes use of the product,
the MTP suggests, then the regulatory status of the fired
munition should not depend upon where the munition hap-
pens to fall. The EPA answers that the MTP confuses the
statutory and regulatory definitions of solid waste. More
particularly, the agency explains that a spent munition that
has landed, no matter where it comes to ground, is not for
that reason subject to the regulatory program of Subtitle C.
If the munition lands off range, however, and is not promptly
retrieved or rendered safe, then the EPA regards it as having
been "discarded" within the statutory (but not the regulatory)
definition of solid waste and thus potentially subject to the
provisions of Subtitle G that empower both the agency and
private litigants to sue in order to compel the abatement of an
imminent environmental threat. In this respect an off-range

landing is like an accidental spill; in either event, the failure
to respond properly can trigger a suit to compel action
pursuant to Subtitle G. See 62 Fed. Reg. at 6633. Because
the EPA's interpretation of its own regulation is neither
plainly erroneous nor inconsistent with the regulation, we
accept it as controlling. See Stinson, 508 U.S. at 45.

D."Infeasibility"

The MTP mounts a second, distinct attack upon the provi-
sion in the Military Munitions Rule that classifies as a statu-
tory solid waste a fired military munition that lands off range
and is neither retrieved nor rendered safe. See 40 C.F.R.
s 266.202(d). In that provision the EPA declares that "any
imminent and substantial threats associated with any remain-
ing material must be addressed" but then goes on to provide
that "[i]f remedial action is infeasible, the operator of the
range must maintain a record of the event for as long as any
threat remains." Id. The MTP asserts that this section
allows the DOD, by determining that remedial action is
"infeasible," unilaterally to exempt itself from any cleanup of
off-range military munitions that might otherwise be required
by the RCRA.

The EPA responds that the disputed provision "does not
relieve DOD from any required remedial action based upon
their own infeasibility finding; rather, it imposes affirmative
documentation requirements where remediation is infeasible."
The agency goes on to point out:

With or without this provision, the courts (in the judicial
context), or EPA (in the administrative context) will
determine the level of any cleanup required under the
relevant enforcement or corrective action authorities,
including whether or not remediation is infeasible.

It therefore appears that the MTP's argument may simply be
based upon a faulty interpretation of the regulation. We
need not reach this challenge on the merits, however, because
as the EPA also points out neither the MTP nor anyone else
commented during the rulemaking process that the Rule as
drafted would permit the DOD unilaterally to free itself from

the strictures imposed by the RCRA. The MTP has thus
waived the argument and may not raise it for the first time
upon appeal. See Natural Resources Defense Council v.
EPA, 25 F.3d 1063, 1073-74 (D.C. Cir. 1989); cf. Saco River
Cellular, Inc. v. FCC, 133 F.3d 25, 34 (D.C. Cir. 1998),
quoting United States v. Tucker Truck Lines, 344 U.S. 33, 37
(1952) ("Simple fairness to those who are engaged in the
tasks of administration, and to litigants, requires as a general
rule that courts should not topple over administrative deci-
sions unless the administrative body not only has erred but
has erred against objection made at the time appropriate
under its practice").

E.Munitions at Closed or Transferred Ranges

The EPA included in the proposed Rule, but omitted from
the final Rule, a provision that would have identified as
statutory solid waste fired military munitions at ranges that
have been closed or transferred from military use. Compare
60 Fed. Reg. at 56,475-76 (proposed Rule) with 62 Fed. Reg.
at 6632 (final Rule). As we have seen (in Part I.B.3 above),
the EPA decided to postpone action on this section of the
proposed Rule in order to analyze further the comments it
received and to allow the DOD to complete work on its own
proposed rule governing range cleanup. See 62 Fed. Reg. at
6632.

The MTP claims that the EPA was obliged by s 3004(y) to
issue the proposed regulation. We disagree. Section 3004(y)
requires only that EPA promulgate regulations to identify
"when military munitions become hazardous waste for pur-
poses of [Subtitle C]." As the EPA noted in the preamble to
the final Rule, "[p]roposed s 261.2(g)(4)(i) would have identi-
fied when a discharged munition becomes a statutory solid
waste, but would not identify when that discharged munition
becomes subject to Subtitle C regulation." 62 Fed. Reg. at
6632. The EPA satisfied the requirements of s 3004(y) when
it determined that military munitions used as intended do not
fall within the regulatory definition of solid waste for pur-
poses of Subtitle C--a determination that applies regardless
whether the range at which the munition is used be active,

inactive, closed, or transferred from military use. The agen-
cy had no obligation to address the broader issue concerning
statutory solid waste. That the EPA chose to tackle the
statutory definition of solid waste as applied to off-range
spent munitions that are not rendered safe or retrieved is not
a ground upon which to fault the agency for postponing its
treatment of the issue as applied to munitions at closed or
transferred ranges.

F. Conditional Exemption for Transportation and Storage

The Military Munitions Rule exempts from regulation pur-
suant to Subtitle C non-chemical military munitions in trans-
port or storage if they are managed in accordance with
applicable regulations of the Departments of Defense and of
Transportation. See 40 C.F.R. ss 266.203 & 266.205. The
MTP argues that this so-called conditional exemption is not
authorized by RCRA s 3001(a), is prohibited by s 3004(y),
and is arbitrary and capricious because the DOD transporta-
tion and storage regulations are not as protective as the
Subtitle C regulatory scheme.

1. The statute

Section 3004(y)(1) of the RCRA provides that

the Administrator shall propose ... regulations identify-
ing when military munitions become hazardous waste for
purposes of this subchapter and providing for the safe
transportation and storage of such waste.

42 U.S.C. s 6924(y)(1). In the MTP's view conditional ex-
emption of munitions transported or stored pursuant to DOD
and DOT regulations is inconsistent with the EPA's obligation
to "propose ... regulations" as the statute commands.

The flaw in the MTP's argument is that it assumes that
material that has the benefit of the conditional exemption is
"hazardous waste for purposes of this subchapter [i.e., Subti-
tle C]." The effect of the conditional exemption, however, is
to remove the exempted munitions from coverage under
Subtitle C and therefore from the range of wastes for which
the EPA must promulgate regulations governing transporta-

tion and storage. Put another way, the statute requires that
the EPA undertake a two-step process: first, identify the
conditions under which military munitions become hazardous
waste; second, promulgate regulations to ensure the safe
transportation and storage of that hazardous waste. The
MTP mistakenly ignores the first step. Because the EPA
has conditionally exempted certain munitions waste from
classification as hazardous waste at the first step, the obli-
gation to promulgate regulations governing the transporta-
tion and storage of that waste never arises at the second step.
The MTP thus accuses the EPA of failing to fulfill an
obligation that simply is not there--assuming, that is, the
agency has the authority conditionally to exempt the muni-
tions from classification as hazardous waste.

The EPA claims authority to issue a conditional exemption
in part from s 3001(a), which requires the Administrator to
promulgate criteria for identifying and listing wastes that
"should be subject to the requirements of [Subtitle C]." 42
U.S.C. s 6921(a). As the Congress has not spoken directly to
the issue of conditional exemptions, we must uphold the
EPA's interpretation of the RCRA so long as that interpreta-
tion is reasonable in light of the structure and purpose of the
statute.

The EPA reads the word "should" in s 3001(a) as calling
for an exercise of judgment and hence conferring discretion
upon the Administrator "to determine when Subtitle C regu-
lation is appropriate." 62 Fed. Reg. at 6636. The next three
sections of the RCRA direct the EPA to issue regulations
governing the management of hazardous waste "as necessary
to protect human health and the environment." 42 U.S.C.
ss 6922(a), 6923(a), 6924(a). Putting the four sections togeth-
er, the agency reasons that the decision whether a waste
should be regulated under Subtitle C turns upon its assess-
ment of whether such regulation is necessary to protect
human health and the environment. See 62 Fed. Reg. at
6636. Because a hazardous waste is by definition a solid
waste that poses "a substantial threat to human health and
the environment when improperly treated, stored, transport-
ed, or disposed of, or otherwise managed," 42 U.S.C.

s 6903(5), the EPA concludes that "where a waste might pose
a hazard only under limited management scenarios, and other
regulatory programs already address such scenarios, EPA is
not required to classify a waste as hazardous waste subject to
regulation under Subtitle C." 62 Fed. Reg. at 6636.

We accept the EPA's reading as a permissible construction
of the statute. We have previously acknowledged that the
"Congress' broad delegation to EPA to develop criteria for
listing hazardous wastes, 42 U.S.C. s 6921(b), indicates that
Congress intended the agency to have substantial room to
exercise its expertise in determining the appropriate grounds
for listing." NRDC v. EPA, 25 F.3d at 1070. In that same
case we upheld the EPA's decision not to list used oil as a
hazardous waste based upon its finding that the existing
network of federal regulations ensured proper disposal. Id.
at 1071. Although the present case does not involve the
listing regulations at issue in NRDC v. EPA, we think the
principle at work there also supports the conditional exemp-
tion at issue here. And as noted above, we find nothing in
s 3004(y) that would restrict the ability of the EPA to grant
conditional exemptions for military munitions.

2. Arbitrary and capricious review

The MTP attacks the conditional exemption for transporta-
tion and storage on the ground that it arbitrarily exempts the
military from certain restrictions that appear in Subtitle C
but not in the corresponding DOD regulations. For instance,
Subtitle C relies upon the issuance of permits as a vehicle for
regulating the treatment, storage, and disposal of hazardous
waste, see 42 C.F.R. s 6925(a), and the permitting process
provides, among other things, for participation by the public
(id. s 6974(b)(2)(A)) and facility-wide cleanup of contamina-
tion (id. s 6924(u)). The MTP "object[s] to EPA's decision
not to incorporate [the DOD's storage and transportation]
standards into a regulation that would also implement the
additional RCRA requirements" not included in the DOD
regulations.

As the intervenors correctly observe, the MTP's argument
is essentially the same as the argument we rejected in NRDC

v. EPA, 25 F.3d at 1071-72, where we considered the EPA's
specification of the factors it would consider in deciding
whether to list a waste as hazardous. Noting that one such
factor is "[a]ction taken by other governmental agencies or
regulatory programs" to control any hazard posed by the
substance, 40 C.F.R. s 261.11(a)(3)(x), we said:

To accept petitioners' proposition that EPA may not
rationally rely on other federal regulatory programs
because none are as comprehensive as subtitle C would
be to drain this factor of all content: EPA could never
rely on other environmental regulations to control a
potentially hazardous substance because no other envi-
ronmental regulation can match the might of subtitle C.

Id. at 1072. Insofar as the present petitioner seeks categori-
cally to prevent the EPA from taking account of other
regulatory programs in evaluating the need for it to act, we
again reject that position.

Comparing the DOD regulations at issue here with regula-
tion under Subtitle C, the EPA does not deny that there are
"gaps in certain procedural requirements and in areas unre-
lated to risks from explosive materials." 62 Fed. Reg. at
6637. Significantly, however, the MTP disavows any chal-
lenge to the "technical soundness" of the DOD regulations;
indeed, the MTP concedes that those regulations "impose
reasonably protective standards" upon the transportation and
storage of military munitions. Accordingly, we have no rea-
son to doubt the EPA's determination that any gaps in the
DOD regulations do not "undermine the protection of human
health and the environment in any significant way," and that
the imposition of the full panoply of Subtitle C regulation
would not "significantly increase protection." Id.

We also reject as simply mistaken the MTP's argument
that the conditional exemption impermissibly allows the mili-
tary "to regulate itself" because the party responsible for the
storage or transportation of the waste must report noncompli-
ance with DOD regulations only insofar as it determines that
the noncompliance "may endanger health or the environ-
ment." The EPA interprets the Military Munitions Rule as

requiring notice of all instances of noncompliance, not only
those that in the judgment of the transporting or storing
military authority "may endanger health or the environment."
That interpretation is fully supported by the text of the
relevant regulations, which call for reporting "any failure to
meet a condition" for exemption. 40 C.F.R.
ss 266.203(a)(1)(iv) & 266.205(a)(1)(v).

The MTP makes still other objections to the conditional
exemption, but none warrants treatment in a published opin-
ion. We uphold the conditional exemption as a permissible
construction of the RCRA and a rational--not an arbitrary
and capricious--policy choice.

III. CONCLUSION

For the foregoing reasons we grant the motions for leave to
intervene, deny the motion to strike portions of the interve-
nors' brief, and deny the petition for review.
So ordered.