Wednesday
November 8, 1995
Part 111
Environmental
40 CFR Part 260, et al.
Military Munitions Rule: Hazardous Waste
Identification and Management;
Explosives Emergencies; Redefinition of
On-Site; Proposed Rule
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Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260 through 265, and 270
[EPA 530-Z-95-013; FRL-6325-5]
BIN 2050-AD90
Military Munitions Rufe: Hazardous
Waste Identification and Management;
Explosives Emergencies; Redefinition
of On-Site
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: In response to Section 107 of
the Federal Facility Compliance Act
(FFCA) of 1992 which added a new
subsection 3004(y) to the Resource
Conservation and Recovery Act (RCRA)
(42 U.S.C. section 6924(y))~, EPA is today
proposing a rule that identifies when
conventional and chemical military
munitions become a hazardous waste
under RCRA, and that provides for the
safe storage and transport of such waste.
Today's proposal also amends existing
regulations regarding emergency
responses involving military munitions
and other explosives. This amendment
would apply to responses by non-
military or private personnel, as well as
by the military. The proposal also
revises the definition of "on-site,"
which applies to all generators of
hazardous waste.
DATES: Written comments on these
proposed rules will be accepted until
January 8.1996.
ADDRESSES: Written comments (one
original and two copies)-should be
addressed to: EPA RCRA Docket #F-95-
MMP-FFFFF, Mail Code 5305W. 401 M
Street SW, Washington. DC 20460.
Comments also may be submitted
electronically by sending electronic
mail (e-mail) through the Internet
system to: RCRA-
Docket@epamail.epa.gov. All electronic
comments must be submitted as an ascii
file avoiding the use of special
characters and any form of encryption.
The comments should be identified
with the above docket number.
The official action for this record will
bo kept in paper form. Accordingly. EPA
will convert all documents received
electronically into printed paper form as
they are received and will place the •
paper copies in the official record,
which will also include all comments
submitted directly in writing. The
official record is the paper record kept
in the RCRA Docket (see address above).
(Comments submitted on paper will not
be transferred to electronic format.
These comments mav be viewed only in
the RCRA Docket as described here.)
Public comments and the supporting
information used for this rule are
available for public inspection and
copying in the RCRA Information Center
(RIG) located in room M2616 at the EPA
address above. The RIC is open from
9:00 a.m. to 4:00 p.m., Monday through
Friday, excluding federal holidays. To
review docket materials, the public
must make an appointment by calling
(202) 260-9327.
The RIC will be closed November 14-
24, 1995 because it is relocating to
Arlington. Virginia. Between November
14 and 24.1995, special appointments
can be made for viewing material in this
docket by calling the above number.
Beginning November 27,1995, call 703-
603-9230. After that date, the Docket
will be physically located at: Crystal
Gateway, First Floor. 1235 Jefferson
Davis Highway, Arlington, Virginia. The
mailing "address remains the same as
given above.
FOR FURTHER INFORMATION CONTACT: The
RCRA Hotline between 9 am and 6 pm
EST. toll-free, at 800-424-9346; 703-
412-9810 from Government phones or if
in the Washington, DC local calling
area; or 800-553-7672 for the hearing
impaired; or Ken Shuster, U.S. EPA
(5303W), 401 M St. SW., Washington,
DC 20460, (703) 308-8759.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Legal Authority
II. Background
A. Statutory Mandate
B. Issues Addressed in Proposal
C. Solid Waste for Regulatory Purposes vs.
Solid Waste for Statutory Purposes
III. Summary of Proposed Rule
IV. Section-by-Section Analysis
A. Definition of Military Munitions •
B. Definition of "Solid Waste" as It Applies
to Military Munitions
1. Unused or Stockpiled Munitions
a. Status of Military Stockpile
b. Proposed § 261.2(g)(l)(i)—Unused
munitions that have previously been
. disposed of '
c. Proposed §261.2{gHl)(ii)—Munitions
removed from the stockpile for the
purposes of destruction
d. Proposed § 261.2(g)(l)(iii)—Leaking or
deteriorated munitions
e. Proposed §261.2(g)(l)(iv)—Munitions
determined by DOD to be a solid waste
f. Rationale for EPA's Proposed Approach
2. Used or Fired Munitions
3. Munitions Used for Their Intended
Purposes
a. Proposed §2G1.2(g)(3)(i)—Military
training exercises
b. Proposed § 261.2(g)(3)(ii)—Weapons
testing
c. Proposed § 261.2(g)(3)(iii)—Range
clearance during training or weapons
testing
4. Discharged Military Munitions at Firing
Ranges
5. Waste Materials Derived from Munitions
Manufacture
C. Standards Applicable to Generators and
Transporters
D. Storage of Military Munitions
E. Emergency Responses
F. Definition of "On-Site"
G. Permit Modifications to Receive Off-Site
Waste Munitions
V. Discussion of Major Alternatives
A. Stockpiled Munitions
1. Approach Based on Armv Regulation
200-1
2. DOD Interim Guidance
3. Munitions Scheduled for Destruction by
International Treaty
4. Alternatives Based" on Condition of
Munition
5. Regulation of the Demilitarization
Process
B. Range Management
1. Active Ranges
2. Applicability of Range Cleanup
Authorities
C. Alternative Organization (Separate CFR
Part)
VI. State Authority
VII. Administrative Requirements/
Compliance with Executive Order
A. Regulatory Impact Analysis Under
Executive Order 12866
1. .Cost Analysis
2. Benefits Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates
VIII. References/Docket
I. Legal Authority
These regulations are proposed under
authority of sections 2002, 3001-3007
(including 3004(y)), 3010, 7003, and
7004 of the Solid Waste Disposal Act of
1965, as amended, including
amendments by RCRA and the FFCA
(42 U.S.C. 6912, 6921-7, 6930, and
6973-4).
II. Background
A. Statutory Mandate
Section 107 of the Federal Facility
Compliance Act (FFCA) of 1992
amended the Resource Conservation
and Recovery Act (RCRA) by adding a
new section 3004(y) that requires EPA
to propose regulations, after consulting
with the Department of Defense (DOD)
and appropriate State officials, that
identify when conventional and
chemical military munitions become
hazardous waste under RGRA, and that
provide for the safe storage and
transportation of such waste.
Over the years, the applicability of
RCRA to military munitions has been '
the subject of considerable controversy.
The Department of Defense has
expressed concern that differing
regulations or interpretations from State
to State substantially undermine its
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Federal Register / Vol. 60, No., 216 / Wednesday, November 8, 1995 / Proposed Rules 56469
ability to carry out its mission. DOD has
particularly sought clarity in defining
RCRA's application to military
munitions storage and transport, the
recycling or destruction of obsolete
munitions, and immediate responses to
emergencies involving explosives.1 At
the same time, citizens groups have
expressed concern that many military
activities involving munitions are
insufficiently regulated. Congress
amended RCRA to include section
3004(y) in response to these concerns.
Today's proposal responds to
Congress's mandate in section 3004(y).
In developing the proposal, EPA has
consulted extensivelywith' DOD and the
States, as the statute requires. EPA has
also met with and received comments
from a consortium of citizens groups
with particular interest in the
environmental and human health
impacts of military installations around
the United States. In addition,
representatives of the waste treatment
industry have provided comments to
EPA. Records of these-meetings and
information provided to EPA are
included in the docket to today^
rulemaking.
B. Issues Addressed in the Proposal
In developing today's proposal, EPA
focused primarily on several key issues
that have arisen in the implementation
of the RCRA program at military
installations, or that have been raised by
DOD, States, or citizens groups. These
issues are:
1. When does an unused munition
become a RCRA "hazardous waste,"
potentially subject to RCRA permitting
and technical management standards?
All parties agree that the destruction of
unused munitions is regulated under
RCRA (if the munitions meet the
definition of "hazardous"). But at what
point in the process do stockpiled
munitions slated for destruction first
become subject to RCRA?
- 2. Should RCRA hazardous waste
management standards apply to the use
of munitions in weapons testing or
military training exercises? Although
EPA in the past has not regulated these
actiyities under RCRA, it has been
argued that military munitions are
"discarded" during field exercises, and
therefore should be subject to RCRA
hazardous waste management
1 EPA and DOD have developed a considerable
body of interpretive guidance and memoranda
addressing these issues. EPA's most recent general
discussion of these issues is in a June 23,1994 letter
from Michael Shapiro. Director of the EPA Office
of Solid Waste, to Patrick J. Meehan, Acting
Assistant Deputy Under Secretary of Defense for
Compliance. This letter and other relevant guidance
are included in the docket to today's rulemaking.
standards. It has also been argued that
certain activities associated with
munitions training or testing—for
example, the detonatiorPbf unexploded
ordnance at a firing range—-properly fall
under RCRA jurisdiction.
3. How do RCRA hazardous waste
regulations apply to emergencies
involving explosive materials, including
military munitions? DOD has expressed
concern that current RCRA hazardous
waste regulations may complicate
responses by emergency personnel to
unexploded ordnance and other
emergencies.
4. In what way (if any) do RCRA
requirements ap'ply to unexploded
ordnance and environmental.
contamination at military ranges and
impact zones, especially ones that are
closed?
5. Once it has been determined that a
munition is a hazardous waste for
regulatory purposes, what storage and
transportation standards are needed to
ensure protection of human health and
the environment? DOD, in particular,
expressed concern that certain RCRA
standards are inconsistent with its
internal regulations on munitions
storage, and that the RCRA
transportation requirements (including
the manifest) are redundant with DOD
controls.
Today's notice provides EPA's
proposed resolution of these issues. The
notice also proposes a new definition of
"on-site," to reduce unnecessary
paperwork requirements for hazardous
wastes transported within large
facilities, including military
installations.
C. Solid Waste for Regulatory Purposes
vs. Solid Waste for Statutory Purposes
In addressing the issues above, EPA
carefully reviewed the RCRA statutory
and regulatory definitions of "solid" '
and "hazardous" waste. To avoid
confusion in today's proposal, EPA
notes at the outset that the terms "solid
waste" and "hazardous waste" have
different meanings depending upon the
context in which the terms appear.
These terms are defined in both the
statute and in the regulations •
implementing RCRA Subtitle C.
RCRA statutorily defines."solid
waste" in section 1004, 42 U.S.C.
6903(27), in pertinent part, as. follows:
The term "solid waste" means any garbage,
refuse, sludge from a waste treatment plant,
water supply treatment plant, or air pollution
control facility and other discarded material,
including solid, liquid^ semisolid, or
contained gaseous material resulting from
industrial, commercial, mining and
agricultural operations, and from community
activities...
42 U.S.C. 6903(27). The term
"hazardous waste" is defined in the
statute as those solid wastes 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
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).
The terms "solid waste" and
"hazardous waste" are defined for
purposes of the regulatory program
under Subtitle C of RCRA at 40 CFR
261.2 (solid waste) and 40 CFR 261.3
(hazardous waste). Materials meeting
these definitions are a subset of the
materials meeting the statutory
definitions. EPA regulations at 40 CFR
261.l(b)(ll make clear that the
regulatory definition of "solid waste" .
applies only to wastes that are also
hazardous for purposes of the
regulations implementing subtitle C of
RCRA. Accordingly, the statutory
definition of solid waste is broader in
scope than the regulatory definitions of
the term. See also 40 CFR 261.1(b)(2).
In parts IV.A thru B.3 and B.5 of the
preamble, EPA discusses the
circumstances under which unused
munitions in the military stockpile are
considered to meet the definition of
"solid waste" as defined in the
regulations implementing Subtitle C of
RCRA. Therefore, in this context the
relevant definition of "solid waste" is
the definition contained in the Subtitle
C regulations. Unused military
munitions meeting the regulatory
definitions of "solid waste" could be '
regulated as hazardous waste and thus
subject to full Subtitle C requirements.
In part IV. B.4. of the proposal EPA
discusses the circumstances under
which discharged or fired munitions
meet the statutory definition of "solid
waste". As explained below, these
materials would not meet the'regulatory
definition of "solid waste" and thus
would not be regulated as "hazardous
waste". Nevertheless, these materials
could be "solid waste" as defined by the
statute. Therefore, in this context the
relevant definition of "solid waste" is
the statutory definition. Discharged or
fired munitions that meet the statutory
definition of "solid waste" are subject to
RCRA's remedial statutory authority.
III. Summary of Proposed Rule
Today's proposal addresses: (1) when
military munitions become a solid, and
therefore potentially a hazardous waste,
(2) what transportation and storage
requirements apply to military
munitions that become a hazardous
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56470 Federal Register / Vol. 60. No. 216 / Wednesday, November 8, 1995 / Proposed Rules
waste, (3) how RCRA hazardous waste
regulations apply to immediate
responses to emergencies involving
military munitions and other
explosives, (4) what RCRA requirements
apply to fired munitions, and (5) an
amendment to the definition of "on-
site," as it applies to hazardous waste
generators.
On the issue of when a munition
becomes a regulatory solid waste,
today's proposal provides that unused
military munitions in the military
stockpile become solid waste when they
are removed from storage in the
stockpile for the purpose of disposal, or
for treatment prior to disposal; when
they are leaking or deteriorated to a
point where they cannot be used or
recycled; or when DOD or authorized
Military Service personnel declare them
to be a solid waste, whichever comes
first. The proposal would make clear
that munitions disposed of in the past,
for example by burial at former military
installations, are" solid waste. At the
same time, the proposal explicitly
provides that use of munitions for their
intended purpose (for example, in
training exercises, or in activities
associated with training, such as range
clearance) does not constitute waste
management regulated under RCRA.
The proposal also discusses alternate
approaches to the regulation of
unexploded ordnance and other
munitions remaining at ranges after the
range has been closed. Under the
approach proposed in today's notice,
these munitions would be considered
Statutory "solid waste," potentially
subject to RCRA cleanup authorities,
until DOD develops range cleanup
standards, in consultation with EPA and
with full opportunity for public
participation. Under today's proposal,
DOD's standards, once issued, would
take precedence over RCRA.
The proposal would also codify EPA
policy on immediate responses to
emergencies involving munitions and
other explosives. Under the proposal,
immediate responses taken by trained
personnel (whether military, "other
governmental, or private) would not be
subject to RCRA permitting or other
requirements. In addition, if emergency
transportation of the. explosive were
necessary, this could occur without a
RCRA manifest.
The proposal also includes new
standards for military magazines or
bunkers used to store hazardous waste
munitions. These standards are
designed to provide consistency
between RCRA technical standards and
DOD standards for munitions storage. In
addition, today's proposal would
exempt military munitions from RCRA
manifest and other RCRA transportation
requirements, if they are being shipped
to other DOD facilities under DOD's
. munitions tracking system.
Finally, the proposal revises the
definition of "on-site," so that
hazardous waste generators may define
on-site property to include all
contiguous property (regardless of
whether or not it is'split by a road or
right-of-way). This change will provide
military installations and other large
facilities (such as universities or large
industrial complexes) greater flexibility
in handling waste on site and will '
eliminate redundant paperwork
requirements (e.g., by eliminating the
manifest requirement).
IV. Section-by-Section Analysis
A. Definition of Military Munitions
Today's proposal includes a
definition of "military munitions" (in
§ 260.10). This definition, which
establishes the scope of today's rule,
includes all types of ammunition
products and their components,
including conventional and chemical
munitions, produced by or for the
military for national defense and
security. The definition lists a number
of component examples, including
propellants, explosives, pyrotechnics,
and chemical and riot control agents; '
and product examples, including
rockets, bombs, mines, grenades,
artillery, and torpedoes. The definition
excludes improvised explosive devices, •
for example, home-made bombs (which
are non-military) 2 and nuclear
weapons, devices, and components
thereof managed under the Department
of Energy's nuclear weapons program.
The proposed definition also clarifies
that such military munitions may be
under the control of the Department of
Energy (DOE), the U.S. Coast Guard, the
National Guard, or a private company
producing the munitions under contract
to or as an agent for DOD, as well as the
Department of Defense.
EPA considered including in this rule
non-nuclear components of munitions
managed by DOE under its nuclear
weapons program. Upon review,
hoivever, EPA has determined that
section 107 of the FFCA does not
contemplate the inclusion of nuclear
weapons or their components within the
scope of this rule. The statutory
language and legislative history of § 107
demonstrates the intent of Congress that
EPA develop regulations that address
conventional and chemical munitions.
No mention was made of nuclear
weapons or their components.
Furthermore, EPA recognizes that DOE's
practices and procedures for the
management of nuclear munitions
under the Atomic Energy Act of 195.4.
42 U.S.C. 2011 et seq., as well as the
potential impacts on DOE operations,
are significantly different from those of
DOD pertaining to conventional and
chemical munitions.
For these reasons, EPA has decided
not to include nuclear weapons
components in today's proposal.
Instead, the proposal addresses
conventional and chemical weapons, as
contemplated by § 107, and specifically
does not apply to nuclear weapons or "
the components thereof managed under
DOE's nuclear weapons program.
Conventional or chemical munitions-
that DOE produces or manages for the
military, however, would be subject to
. this proposed rule..
B. Definition of "Solid Waste" as It
Applies to Military Munitions
RCRA section 3004(y) requires EPA to
identify "when military munitions
become hazardous waste for purposes"
of Subtitle C of RCRA. In general,
materials are considered to be
"hazardous waste," for regulatory
purposes, if: (1) the material is a "solid
waste," as defined in 40 CFR 261.2, and
(2) the material meets the definition of
"hazardous waste" in 40 CFR 261.3. In
today's proposal, EPA has focused on
the first point—when munitions become
a solid waste—and has not proposed to
amend the definition of "hazardous
waste" as it applies to munitions.
EPA has taken this approach because
the controversy over when military
munitions become regulated under
RCRA Subtitle C hazardous waste
standards has centered on the question
of when munitions become "solid
waste" under § 261.2, rather than on
whether they are "hazardous waste"
under §261.3. Many military munitions
meet the RCRA "ignitability" or
"reactivity" characteristics, for example,
because they are explosive (see 40 CFR
•261.21 and 261.23 respectively).* In
addition, other munitions are hazardous
under the "toxicity" characteristic,
because they contain high levels of lead
or other toxic metals (see 40 CFR
261.24). EPA believes that the current
definition of "hazardous waste" in 40
CFR 261.3 is adequate as it applies to
2 Improvised explosive devices. orlEDs, are -
defined as non-standard explosive devices made
from either military or non-military materials by
non-military personnel.
3 Some munitions are not "reactive." For
example, in a memorandum of June 2,1988, EPA
stated that small arms ball ammunition of up to and
including 0.50 calibers are not reactive within the
meaning of RCRA. The Department of the Army has
codified this position in Army Regulation 200-1
section 6-7(k). ' '
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waste munitions, and therefore proposes
no change to 40 CFR 261.3.
Under 40 CFR 261.2 of the RCRA
regulations, "solid waste" is defined as
"discarded material." Section 261.2 (a) •
through (f) provides a detailed
regulatory definition of this term. In
particular, §261.2(b) defines "discarded
material" as materials that are
abandoned by being disposed of; burned
or incinerated; or accumulated, stored,
or treated (but not recycled) before or in .
lieu of being abandoned. In today's
, notice, EPA proposes to add a new
§ 261.2(g) specifying how the regulator}'
term "discarded material" applies to
unused military munitions. This
proposed provision would address the
regulatory definition of solid waste in
the context of three specific categories
of munitions: (1) unused munitions in
the military stockpile, (2) used or fired
munitions, and (3) munitions being
used for their intended purpose.
Additionally, EPA proposes in new
§ 261.2(g)(4) to characterize munitions
at closed or transferred ranges as
statutory solid waste under RCRA
section 1004(27). However, once DOD
promulgated range cleanup regulations
under its own standards, this section
would be superseded.
1. Unused or Stockpiled Munitions
a. Status of Military Stockpile.
According to DOD, the military services
currently have 5.6 million tons of
conventional munitions stored in
magazines at installations within the
United States. Of these munitions, more
than 5.1 million tons (or more than
90%) are in an "active use" inventory,
and therefore are available for use in
training or war. At the same time,
however, the Services have a significant
volume of munitions in
"demilitarization" accounts (for
example, the Army's Resource Recovery
and Disposition Account); munitions in
these accounts are generally considered
to be excess and unneeded,
"unserviceable" (and needing further
assessment or repair), or obsolete.-*
According to DOD, approximately
440,000 tons of munitions are stored in
demilitarization accounts; under DOD
procedures, these materials first
undergo evaluation to determine
whether they can be returned to service,
repaired, sold, or recycled. If these
options are unavailable, the munition is
then scheduled for destruction. DOD
currently considers that its stockpile
•"The Services also assign "condition codes" to
ammunition. For example, the Army's Ammunition
Surveillance Procedures (November 1990) provides
designations for ammunition such as Condition
Code H ("Material that has been determined to be
unserviceable and does not meet repair criteria").
"includes 48,000 tons of munitions
scheduled for destruction.
EPA and DOD generally agree that
munitions stored in the ^active use
military stockpile do nbl meet the
definition of "discarded material" 01
"solid waste" in 40 CFR 261.2, and .
therefore are not regulated under. RCRA
subtitle C. There is also general
agreement that obsolete or excess
munitions meet the regulatory
definition of solid waste at the point
when they are received for destruction
or disposal—for example, at open
burning/open detonation units or-
incinerators. Despite agreement on these
points, however, there has been
considerable discussion over whether
and how RCRA standards apply to
munitions slated for destruction before
they are received at a treatment or
disposal site.
This discussion has centered
primarily on defining what event or
munition-status indicates a DOD "intent
to destroy." EPA has had comparable
discussions with industry over when
commercial products become a solid
waste. The Part 261 regulations
regarding commercial products in
storage rely largely on the "intent" of
the owner to discard; over the years,
EPA has sought to establish simple,
consistent, and enforceable principles
regarding the point at which
commercial products are intended to be
"discarded"—notably these are (1)
when the products are removed from
storage for disposal, or treatment prior
to disposal, (2) when the owner declares
them to be hazardous waste, and (3)
when they are deteriorated or damaged
(e.g., leaking) to the point they cannot
be used, or reprocessed for beneficial
use. In today's proposal EPA has sought
to apply these general principles to
military munitions. '
In proposed § 261.2(g)(l)(i) through
(iv), EPA clarifies this issue by
identifying the specific circumstances
under which an unused or stockpiled
munition would be considered to be
solid waste for regulatory purposes.
b. Proposed §261.2(g)(l)(i)— -
Munitions that have previously been
diisposed of. Under proposed
§ 261.2(g)(l)(i), a munition becomes
discarded, and therefore a solid waste
when it is "abandoned by being
disposed of, burned, or incinerated, or
treated prior to disposal." Thus, open
burning/ open detonation or
incineration of unused munitions
(except when done during an emergency
response or during training in use of a
product) is regulated under the RCRA
subtitle C standards for hazardous
waste, including the 40 CFR Part 270
permit requirements (assuming the
wa'ste munitions meet the § 261.3
definition of."hazardous waste").
Similarly, unused munitions that were
buried or landfilled in the past are solid
waste, and, if hazardous, they would
become subject to applicable subtitle C
regulation when unearthed and further
managed. EPA emphasizes that this
proposed section would not bring use of
• military munitions for their intended
purposes—e.g.. the firing of military
rounds—within the scope of subtitle C.
The use of a product (in this case a
military munition), in EPA's view, is not
a waste management activity and does
not constitute abandonment for the
purposes of proposed § 261.2(g)(l).
("Discarded material" in the context of
munitions used at military firing ranges
is addressed in proposed § 261.2(g)(4),
which is discussed below.) .
c. Proposed § 261.2(g)(l)(ii)—
Munitions removed from the stockpile
for the purposes of disposal/destruction. .
Proposed §261.2(g)(l)(ii) would specify
that a military munition becomes a solid-
waste for regulatory purposes when it is
removed from storage in a military
magazine or other storage area 5,for the
purposes of destruction, disposal, or
treatment prior to disposal.
Stockpiled munitions, in EPA's view,
are unused "products" comparable to
unused commercial products stored by
manufacturers or their customers. Under
RCRA, unused products do not become
"waste" until they become "discarded •
material," that is, until an intent to
discard the material can be
demonstrated. Even if a commercial
product's shelf life has expired, or it can
no longer be used for its intended
purpose (for example, because of
physical deterioration), it may be
reprocessed or used for other purposes.
Thus, it would not necessarily be
considered "discarded material" or
solid waste.
Stockpiled military munitions are in a
comparable situation, and the
classification of a munition in one of the
various DOD "demilitarization"
accounts does not, in EPA's view, '
constitute a decision to discard the
material because, pursuant .to DOD's
practices, such a classification does not
necessarily evidence an intent to
discard. Ammunition classified as
"unserviceable," for example, may be
returned to service, after further review,
•or in some cases after reprocessing.
•' The term "military magazine or other storage
area" refers to all types of military munitions
storage units, including outdoor or open storage
areas, sheds, bunkers, and earth-covered and above-
ground magazines allowed under the DOD
Explosives Safety Board (DDESB) standards (DOD
6055.9-STD), which are mandatory for use by all
DOD components.
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56472 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
Munitions in the demilitarization
accounts (such as the Army's Resource
Recovery and Disposition Account) may
also be sold for non-military purposes,
or to nations that still maintain older
weapons systems. Even munitions
scheduled for disposal may still have a
deterrent purpose and may be called
back into service in cases of emergency.
Therefore, in EPA's view, inclusion of'a
munition in a "demilitarization" "
account or a military determination that
a munition is "unusable" for its
intended purpose does not constitute a
decision to dispose.of it.
For these reasons, today's proposal
makes it clear that unused munitions
stored in military stockpiles are not
considered "solfd waste" subject to
subtitle C (except as provided in
§261.2(g)(l) (iii) and (iv) discussed
below). Instead, EPA has sought to
establish' a simple, consistent, and
enforceable point xvhere a munition
would be-considered "discarded." In
EPA's view, the most appropriate point
for military munitions (and the point
that is most consistent with the
regulation of commercial/industrial
products) is when the material is finally
removed from storage for the purpose of
disposal or treatment prior to disposal.
In practical terms, this provision would
mean that storage of stockpiled
munitions would, for the most part, not
be subject to RCRA regulation (with
exceptions described below); however,
once a munition was removed from a
magazine for the purpose of destruction
or disposal it would become solid waste
potentially regulated under subtitle C of
RCRA.
EPA emphasizes that this provision
would trigger RCRA coverage only
where a decision to destroy the
munition had clearly been made. In •
many cases, munitions classified as
"unserviceable" are removed from
storage and sent to central arsenals for
evaluation to determine whether they
are in fact unusable, whether they can
be sold for use, whether they can be
recycled or processed for other uses, or
whether they should be disposed of. In
these cases, the munition is not being
shipped for the purposes of destruction
or disposal, but rather for evaluation.
The munition would be handled as a
waste only if no further evaluation
would take place and the decision to
destroy had already been made."
Similarly, a munition may be removed
from storage for the purpose of recycling
."EPA has taken a similar position in the case of
pharmaceutical: returned to the manufacturer. See
letter from Sylvia K. Lowrancc. Director. EPA Office
of Solid Waste, to Mark). Schulz. Pharmaceutical
Services. Inc.. Browning-Ferris Industries. Mav 16.
1991.
or materials recovery without triggering
RCRA.
EPA recognizes that it may not always
be easy to determine whether a decision
to destroy the material has been made;
however, it believes that the status of a
munition removed from storage will
generally be clear. In some cases, a
decision to destroy might be evidenced
by a specific order or document. In
other cases, the intent to destroy the
munition would be obvious even in the
absence of such an order. For example,
a munition sent to a commercial, non-
military hazardous waste facility is
presumably a waste (unless the facility
is also a commercial dismantling/
reclamation facility). Similarly, if a
rocket undergoing demilitarization is
disassembled, and the propellent
shipped off-site to an incinerator at
another installation, the intent to
destroy the propellant would be clear.
In both caseS, the point of generation of
the waste xvould be when it was
removed from storage. EPA emphasizes,
however, that the rocket disassembly
process itself is not a form of RCRA
"treatment," and only the propellant
that is incinerated would be a solid
waste. More generally, when a munition
is disassembled, the removal of a
component from'the munition does not
demonstrate or suggest an intent to
discard that component. These activities
are therefore not considered waste
management under RCRA (unless the
material is already classified as a waste,-
and'the disassembly is carried out to
prepare for waste disposal.)
To summarize, the disassembly of a
munition and recovery of explosives or
propellants and other components for
reuse does not constitute a waste
management activity. In fact, these
operations constitute a large part of
DOD's Resource Recovery and Recycling
Program, and EPA strongly supports and
encourages this program. EPA views
recycling of unused military munitions
as being directly analogous to the
reclamation of commercial chemical
products (see 40 CFR 261.2(c) and (e)
and 261.33). Thus, the position EPA is
taking in today's rule on military
munitions recycling or materials
recovery operations is consistent with
the position it has taken with regard to
the management of commercial
chemical products.
Examples of munitions recycling
activities performed by DOD that would ,
not be regulated under RCRA include
the following:
(1) Recovery of explosive filler,
together with scrap metal sale.
Explosive filler material may be
removed from munitions by using a
heated medium, such as steam, hot
water, or air. Further processing may be
necessary if the explosive material is
contaminated or the end use requires a
specific form of explosive. The filler
material is then used or reformulated for
military or commercial explosives, and
the inert metal parts may be reused as
is or sold for scrap value.
(2) Reuse of Hazard Class (HC) 1.3
large rocket motor propellent, together
with casing reuse or scrap metal sale.
The HC 1.3 propellant may be removed
from the rocket motor case with a high
pressure water jet. The washed-out
material and liquor is then processed to
remove ammonium perchlorate. The
ammonium perchlorate is then
crystallized and reused as an ingredient
in a large rocket motor propellant
formulation, and the motor casing is
either used or sold for scrap value.
"(3) Reuse of HC 1.1 large'rocket motor
propellant, together with casing reuse or
scrap metal sale. The HC 1.1 propellant
is removed from the rocket motor as
propellant chips through a dry
machining process. These chips are then
mixed with other ingredients to produce
commercial sector blasting charges for
mining or quarrying. The motor casing
is, again, either reused or sold for scrap
metal.
(4) Reuse of red phosphorus
composition. The red phosphorus
composition is removed from
unserviceable L8A1 smoke grenades for
reloading into the new L8A3 grenades.
(5) White phosphorus to phosphoric
acid conversion. This process converts
white phosphorus to saleable
phosphoric acid by integrating an
industrial phosphoric acid conversion
process to a modified furnace.
The examples of ways in which
military munitions may be reused for
military and commercial applications,
while specific, apply not only to the
identified munitions but illustrate how
RCRA requirements apply to munitions
of similar types. The examples,
however, do not specifically address
one type of recycling identified by DOD:
that is, the processing of an unused
explosive to allow its use as fertilizer. In
this case, the explosive, arguably, is
being applied to the land in lieu of its
original intended use and therefore—by
analogy to commercial chemical
products—its use as a fertilizer would
potentially be regulated as waste
management (see 40 CFR 261.33). EPA
solicits comment on whether this type
of recycling is appropriate for military
explosives and therefore whether it
should be allowed under today's rule.
Of course, treatment or disposal of
residual materials generated during the
disassembly or processing of unused
munitions .is potentially subject to
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Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed RuJes
56473
RCRA regulation. In example number 2
above, ingredients remaining after the
crystallization of ammonium
perchlorate might be incinerated. EPA
would consider this incineration to
constitute waste management and the
materials incinerated to be a solid
waste.
Proposed § 261.2(g)(5) in today's rule
clarifies these points.
d. Proposed §261.2(g)(l)(iii)—Leaking
or deteriorated munitions.
'Proposed §261.2(g)(l)(ii), discussed
above, would define the most common •
circumstances under which a stockpiled
military munition' would become a solid
waste—that is. when a decision has
been made to dispose of it and it is
removed from storage, for transportation
to a disposal site. EPA, however,
recognizes (and States and citizens
groups have pointed out) that under
certain circumstances military
munitions in storage may deteriorate to
a point where they are no longer
"products" in any meaningful sense and
indeed may present an environmental
threat. To address these circumstances,
proposed § 261.2(g)(l)(iii) would define
a munition as a solid waste if it is
"deteriorated or damaged (e.g.. as a
result of leaks or broken seals) to the
point that it cannot be put into
serviceable condition, and cannot
reasonably be recycled or used for other
purposes." For example, leaking
chemical munitions are typicallv
overpacked and placed in separate
storage. Further, the stabilizers and
chemicals involved have often
deteriorated, and these chemicals have
no reclamation potential. In EPA's view,
these munitions have lost any
reasonably possible future uses.
Therefore, they should be defined as
solid waste, and if hazardous, managed
accordingly.
EPA recognizes that there is no
specific analogous provision for
deteriorated or damaged stockpiled •
commercial products. EPA believes,
however, that commercial products in
similar situations without any
reasonable future uses or recycling
potential would qualify as solid waste
under existing regulations. Furthermore,
EPA shares commenters' concerns that,
when a munition presents a threat
because of leakage or physical
deterioration and when there is no
reasonable possibility of productive use
of the material, it should be treated or
destroyed as soon as feasible.
e. Proposed §261.2(g)(l)(iv)—
Munitions determined by DOD to be a
solid waste. Finally, proposed
§ 261.2(g)(l)(iv) would make it clear that
the military Services or the Department
of Defense may identify a stockpiled
military 'munition as a RCRA "solid
waste." In this case, the munition (if
"hazardous") would be subject to
hazardous waste regulations. For
example, the Department of Defense has
previously determined that M55 rockets
containing chemical agents are '
hazardous waste. DOD made this
decision because the rockets' delivery
system no longer exists, and because
DOD decided, for operational reasons,
that the rockets would not be used in
military operations and that they would
not be sold or reclaimed. These rockets
are now being regulated as hazardous
waste under RCRA interim status or
permit requirements. Today's proposal.
would not affect the waste status of
these materials, or of materials DOD in
the future classifies as solid waste.
EPA emphasizes that proposed
§261.2(g){l)(iv) requires a specific
declaration by an authorized military
official that a munition is a solid waste.
As explained earlier, a decision under
DOD's classification system that a
munition is "unserviceable," or the
transfer of a munition into a
"demilitarization" account would not
constitute a decision that a munition is
a solid waste.
/. Rationale for EPA's Proposed
Approach. EPA's proposed approach is
based primarily on the recognition that
stockpiled munitions are "products,"
generally outside the scope of RCRA;
that Congress intended for EPA to
develop a "fair and coherent" approach
regarding RCRA's application to
munitions; that DOD has in place
extensive storage standards that, in
providing for safety, are also protective
of human health and the environment; .
and that the military Services' safety
record in storing munitions has been
good. EPA further believes that there is
no .compelling environmental or legal
reason to develop an intent-based test
for defining when munitions become
hazardous waste. Indeed, to do so
would significantly increase the
regulatory burden not only on DOD, but
also on regulators, and it would
certainly complicate DOD's
management of the military stockpile.
These reasons are discussed in more •
detail below.
In the first place, the proposed
approach would be simple,
straightforward, and enforceable.
Munitions while stored in the stockpile
would generally be excluded from
RCRA regulation. Alternative
approaches that would divide
munitions, in the military stockpile into
"waste" and "non-waste" munitions
(based on one or another set of intent-
based criteria) would be likely to
provide little certainty, and would be .
difficult to'implement in the field. EPA
is particularly concerned about
approaches that would lend themselves
to site-specific disagreements over
whether a particular stockpile munition
is or is not a hazardous waste. Congress
charged EPA with developing a "fair
and coherent approach to identifying
when military munitions become a
hazardous waste," and expressed the
opinion that, without such regulation,
RCRA jurisdiction over munitions "will
likely be left to the courts." (See H.R.
Conference Report No. 886. 102d Cong.,
2dSess. 29 (1992). See also Cong. Rec.
H9137 (daily ed. September 23.1992).
Floor statement of Rep. Ritter). In light
of this directive, EPA has sought to
draw as clear and universal a line as
possible in this proposal, and to avoid
definitions that are likely to lead to
debate in their application, or to require
specialized military expertise to
interpret. EPA's goal has been to define
a consistent national standard, which
would eliminate the need for
complicated site-specific judgments that
may have little if any relevance to
protection of human health and the
environment.
Today's proposal on military
munitions is also consistent w'ith EPA's
approach under RCRA to other
products. To be sure, the proposal does
not precisely parallel EPA's approach to
commercial products, but the basic
approach is the same; in both cases,
unused products are generally excluded '
from RCRA jurisdiction. The only
substantive differences between the .
proposal and the current definition of
solid waste, as it applies to
"commercial" products, are that: (1)
RCRA jurisdiction for military
munitions would generally be triggered
by the actual removal of a munition
from storage for disposal or treatment,
rather than by evidence of an "intent"
to discard the material before its
removal from storage, and (2) leaking
munitions that could not be returned to
use would be explicitly defined as solid
waste. EPA. acknowledges these minor
differences, but believes they are
appropriate 'in the case of military
munitions, given Congress's mandate
that EPA develop specific regulations
for military munitions that reflect the
special circumstances surrounding these
materials.
Moreover, EPA has chosen the
proposed approach because it involves
minimum interference with the
military's established system for
managing stockpiled munitions, and it
would not conflict with the Services'
logistical needs or constraints.
Munitions in both the active and
demilitarization accounts are managed
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56474 Federal Register / Vol. 6Q, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
under the same storage and
transportation standards, and they are
often stored together in the same"
magazines. The threat from a specific
munition does not change when it is
determined to be "unserviceable"; when
it is reclassified into a demilitarization
account; or when it is scheduled for
treatment or disposal. Today's proposal
recognizes the efficiency of managing
the military stockpile within the current
system. Under the proposal, the
demilitarization process would remain
governed by logistical, safety, and
strategic considerations; munitions
slated for destruction or treatment coul'd
be removed from magazines and
shipped to waste treatment or disposal
facilities according to an orderly
process, rather than by regulatory
schedules.
Finally. EPA's proposal reflects the
Agency's preliminary judgment that
RCRA "regulation of stockpiles of largely
military "products" (only a very small"
portion of the stockpile would be
"waste") would not significantly
increase protection of human health and
the environment. The military's storage
standards and practices for munitions
generally provide protection that is
comparable to or better than RCRA
regulation would provide. The storage
of military munitions is regulated under
standards overseen by the Department
of Defense Explosives Safety Board
(DDESB). an organization independent
of the Services within DOD that was
established by Congress and reports to
the Secretary of Defense. EPA and one
interested party, representing certain
members of the waste treatment
industry, have reviewed the DDESB
standards in detail. Both concluded that
the technical design and operating
standards of the DDESB meet or exceed
RCRA standards in virtually all respects.
There were gaps in certain procedural
requirements, and in areas unrelated to
risks from explosive materials—e.g., in
requirements to coordinate with local
authorities or in closure requirements.
At this point, however, EPA is not
convinced that RCRA standards would
substantially increase protection.7 (Both
EPA's and the commenter's review is
available in the docket of today's
rulemaking.)
In addition, the military's safety
record for the entire stockpile has been
good. According to DOD, there have
been 27 "incidents" involving
stockpiled munitions over the last
twenty years, \vith only 13 of these
involving structural damage to a bunker
or storage unit. This represents a very
low accident rate, considering the
enormous quantity of munitions stored
and handled (currently 5.7 million tons
of conventional munitions in 28,122
storage units) and the high inherent .
hazard of the material. EPA questions
whether RCRA regulation would
improve this safety record. (Indeed,
RCRA regulation of "waste" portions of
the stockpile might increase risk, by
leading to increased movement of "
munitions.)
2. Munitions That Have Been Used/
Fired That Are Subsequently Discarded
Proposed §261.2(g)(2) addresses
munitions that have been used or fired
' and then are subsequently recycled or
disposed of. This section clarifies that
RCRA management standards apply to
the recycling or subsequent disposal'
(assuming the material is hazardous).
Specifically, §261.2(g)(2) states that
munitions that have been used or fired
are solid waste when they meet the
definition of discarded material in
§ 261.2(a)(2). except as provided in
§ 261.2(g)(3). In other words, a used or
'Strategic Environmental Services. Inc.. in
comments to EPA. cited three particular areas
where it concluded that DDESB standards were less
stringent than RCRA's: preparedness requirement
with the local community, closure requirements.
and inspection frequency. EPA believes that the
differences In approach between the standards in
these areas is of limited significance. First, under
RCRA preparedness requirements, a facility must
attempt to make arrangements with local police, fire
departments, emergency response teams, and
hospitals to allow them better to respond to
emergencies. If these local institutions do not
respond to overtures from the facility, however, the
facility has satisfied its obligation. Military
instillations already have extensive contingency
plans for munitions emergencies, and responsibility
for responding to these emergencies generally falls"
on military rather than local personnel. Therefore,
coordination xvith local response authorities is less
important than it is with civilian facilities.
Furthermore, it is unclear what value would be
added by preparedness plans that applied only to •
that part of an installation's munition stockpile that
was classified as waste, and not to other munitions
on thn installation—especially given that the active .
stockpile would typically dwarf "waste" munitions
in quantity. The situation is different for stockpiled '
chemical munitions—partly because of the greater
possibility that an emergency would have off-site
effect, and partly because of heightened public
concern. However. Congress has already required
the Secretary of Defense to establish a chemical
weapons stockpile safety contingency plan
(National Defense Authorization Act for Fiscal Year
(FY) 92) and the Secretary of the Army to establish
citizens' commissions for states with stockpile sites
(National Defense Authorization Act for FY03).
Second, as to closure requirements, it is unclear
how typical munitions bunkers would lead to
contamination problems. In any case, however,
storage magazines are subject to the
decontamination and remediation requirements of
CERCLA 120(h)(3) when the property is transferred,
and DOD is required to clean up environmental
contamination under the Defense Environmental
Restoration Act. Residual contamination is also
subject to other cleanup authorities, including
RCRA section 7003. Finally. EPA sees no reason
why Service inspection procedures for the active
stockpile are not adequate for munitions slated for
disposal.
fired munition is considered a solid
waste if it is abandoned or recycled, or
if it is inherently waste-like (i.e., it
meets the definition of "discarded" in
§ 261.2(a)(2)). But the proposed
language explicitly states that this
definition does not include munitions
used for their intended purpose (i.e..
munitions covered under § 261.2(g)(3)).
As explained below, munitions used for
their intended purpose are products not
subject to RCRA regulation. Under this
approach, munitions that have been
fired and can no longer be reused would
be potentially subject to Subtitle C
regulation if removed from their landing
spot and then transported off-range and
stored, reclaimed, treated, or disposed
of (assuming they are "hazardous"). For
example, former installations no longer
under military control (i.e.. Formerly
Used Defense Sites or FUDS) often
contain unexploded ordnance or other
hazardous material. Used or fired
munitions removed from their landing •
spot and transported off-site would have
to be handled under RCRA subtitle C
(assuming they are "hazardous").
Similarly, used or fired munitions
resulting from military research or
training exercises, when removed from
firing ranges and sent off-range for
destruction would be considered solid
waste. (As discussed below, use of a
product for its intended purpose is not
considered abandonment; §261.2(g)(3)
specifies certain activities that fall
within the intended use of military
munitions.)
3. Munitions Used for Their Intended
Purposes
Under RCRA, the use of products for
their intended purpose does not
constitute waste management and is not
subject to regulation. For example,
RCRA does not regulate the use of
pesticides by fanners, even though
pesticides are discharged to the
environment during use (see 40 CFR
262.10(d) and 262.70). By the same
logic, RCRA does not regulate the use of
dynamite or other explosives during
construction. Similarly, EPA has
consistently held that the use of
munitions (military or otherwise) for
their intended purpose does not
constitute waste disposal, and does not
require 'RCRA permits. Proposed
§261.2(g)(3) (i) through (iii) clarifies this
point and provides specific examples of
military activities that are excluded
from RCRA regulation.
a. Proposed § 261.2(g)(3)(i)—Military
training exercises. Proposed
§261.2(g)(3)(i) clarifies that the use of
munitions in the training of troops and
explosive ordnance disposal (EOD)
personnel is not regulated under RCRA.
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Federal Register / Vol 60, No. 216 / Wednesday, November 8, 1995 f Proposed Rules 56475
This is because such training constitutes
the normal use of a product, rather than
waste disposal.
The proposed language also makes it
clear that training includes training
troops in the destruction of excess
propellant and other munitions, when
that destruction is integral to the
product's use. Propellant used for
artillery and mortar rounds comes in
packaged allotments that vary by the
type of weapon, round, and propellant.
.Each allotment is made up of individual
increments to allow troops to vary the
distance a shell is fired—the more
increments used, the farther the shell is
fired. The Services generally package
the allotments for wartime use, that
allow maximum firing capability.
During firing exercises (whether for
training or during wartime), the full
allotment is often not needed. In these
circumstances, military procedures for
safety reasons require that unused
increments of propellant be burned. (In
wartime, procedures specify that the
excess propellant be burned at the
closest safe point.) To ensure that troops
can safely destroy propellant during
wartime, according to DOD, military
training exercises involving artillery and
mortar rounds typically include the
burning of excess propellant.
In EPA's view, the training of troops
in the wartime use of munitions is a
legitimate use that lies outside the scope
of RCRA; the Agency has no reason to
question DOD's position that training
troops in the safe destruction of excess
propellant constitutes legitimate ,
training. Indeed, such training exercises
typically follow detailed protocols for
training troops in handling and burning
of excess propellants. EPA in the past
has concluded that training in the
destruction of excess propellant is not
subject to RCRA regulations, and is
proposing in today's rule to codify this
interpretation.
Critics of DOD have expressed
concern over the burning of excess
propellant, pointing out that the amount
of excess propellant destroyed may
equal or exceed the propellant actually
used in firing the weapons. Concerns of
the public have particularly focused on
air emissions, although the burning of
propellant directly on the ground can
lead to soil (and possibly groundwater)
contamination. For this reason, the
Services often conduct the burning in
lined trenches. (In some cases, this
precaution has been required by state
regulators.) In other cases, local
opposition to burning of excess
propellant has led individual
installations to abandon the practice
(and in at least one case to abandon
training altogether), or reduce the
number of increments used.
Some-states and citizens groups have
also argued that such burning could
lead to sham training, when the primary
purpose is really waste disposal. In
enforcing today's proposal, EPA might
look at whether propellant burning
during a specific exercise was part of
legitimate training—for example, that
troops were in fact being trained and
that the training was done in accordance
with a specific training manual or
training procedures. However, if these
tests were met, EPA would consider the
destruction of excess propellant to be
normal use of munitions in a training
exercise and not regulated under RCRA.
In response to the concerns over sham
training, DOD has suggested the
existence and use of training manuals,
and appropriate documentation of
training activities should be accepted as
evidence of training. EPA agrees that,
should activities in a specific training
exercise be challenged, such procedures
and documentation would provide
evidence that the activity did not
involve waste disposal.
More generally, EPA appreciates the
concerns of critics of DOD on this issue,
but it tentatively accepts DOD's
argument that the practice is necessary
for effective training. At the same time,
however, EPA solicits comments on this
issue, in particular whether it is
appropriate or necessary, under RCRA,
to impose specific restrictions on
burning of excess propellant, and if so
what those restrictions should be.
b. Proposed §261.2(g)(3)(ii)— >
Weapons testing. Today's proposal also
clarifies that munitions used in
weapons research, development, testing,
and evaluation programs are not
regulated under RCRA. Testing
munitions, or using munitions to test a
weapon system, to determine their
performance capabilities clearly falls
within the definition of use of a
material/product for its intended
purposes. EPA also considers removal of
a used or fired munition from a testing
or training firing range for further
testing and evaluation to be within the
definition of use of a material for its
intended purpose.
c. Proposed §261.2(g)(3)(iii)-r-Range
clearance operations as a result of
training or weapons testing. The
military services often conduct range
clearance exercises as a result of
. weapons testing or training at firing
ranges. During these exercises, military
specialists sweep ranges for debris and
unexploded ordnance, which may be
destroyed on-site or shipped off-range
for treatment. EPA considers range
management to be a necessary part of
the safe use of munitions for their
intended purpose; thus the range
clearance activity is an intrinsic part of
the training or testing exercise.
Furthermore, from an environmental
perspective, it makes no difference
whether ordnance explodes on impact
or is subsequently detonated by an EOD
specialist. Therefore, today's proposal
would exclude range clearance exercises
from RCRA subtitle C regulation. As
mentioned earlier, however, when
shipped off-range for destruction (but
not for further evaluation) the debris or
UXO is a solid waste, and if a hazardous
waste, potentially subject to the RCRA
subtitle C requirements.
4. Discharged Military Munitions at
Firing Ranges
In today's proposal, as well as in
previous statements, EPA has taken the
position that the discharge of a weapon
does not constitute "waste
management" for the purposes of RCRA.
This position is reflected in proposed
§ 261.2(g)(3), discussed above, which
excludes munitions used for their
intended purposes from the definition
of solid waste. At .the same time,
however, this proposal provides that
spent munitions left in the environment
may at some point become "discarded,"
in a RCRA statutory sense, and therefore
may be potentially subject to various
RCRA remedial statutory authorities.
The most important of these authorities
are: (1) RCRA section 7003, which
authorizes EPA to require remedial
action in cases in which solid wastes
may present an imminent and
substantial endangerment; (2) RCRA
sections 3004(u) and (v), which require
corrective action for releases of
hazardous waste or constituents from
any solid waste management unit at
treatment, storage, or disposal facilities
seeking a RCRA hazardous waste
permit, and (3) RCRA section 3008(h),
which allows EPA to require corrective •
action'at interim status facilities.
Proposed § 261.2(g)(4) would specify
how these authorities would apply to
discharged munitions found at military
firing ranges and impact.areas. Proposed
§ 261.2(g)(4)(i) states that munitions left
at closed ranges, or at ranges transferred
out of military control, are discarded
material. "Closed" ranges are ranges
taken out of service by-the military as
ranges and put to new uses
incompatible with range activities—e.g.,
as storage or warehouse areas. However,
an "inactive" range—i.e., a range that is
not currently being used, but that is still
considered by the military to be a
potential range area or that simply has
not been put to any new use
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56476 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
incompatible with, range activities—
would not be considered "closed."
In the case of a closed range, the site
is no longer being used as'a range and
it has been put to a new use
incompatible with range activities.
Under the proposal, any remaining
munitions and debris that are left in
place would be considered discarded
and therefore such munitions and debris
would be a "solid waste" according to
the RCRA section 1004(27) definition. In
the case of transferred ranges, the
military no longer has control over the
site and therefore the view taken by EPA
in the proposal is that any remaining '
munitions and debris would have in
effect been "discarded." This is not to
say that the transfer of the property
would constitute the act of discarding.
Under this approach, the property
transfer would simply affirm that the
remaining materials on the range could
be considered to have been discarded.
This approach to closed and
transferred ranges would not be
unprecedented. There are a number of
scenarios under which hazardous
wastes may be found in the
environment, but were not put there
through an act or circumstance that was
a violation of RCRA or that otherwise
subjects those wastes in place to subtitle
C permitting or other requirements. A
similar example of materials that may be
classified as statutory "solid waste"
under RCRA, but which are not
automatically subject to RCRA subtitle C
permitting or in-place waste
management requirements, are wastes
that had'been disposed of before the
effective date of RCRA. These materials
would also potentially be subject to
RCRA remedial authorities such as
sections 7003, 3004(u) and (v), and
3008(h), or to CERCLA remedial -
authorities.
Today's proposal, however,
contemplates that RCRA regulation of
cleanups at closed and transferred
ranges would be temporary. The
proposal would further provide that, if
DOD promulgates, pursuant to DOD's
own statutory authorities, rules that
allow for public involvement in
cleanups of these ranges and that are
fully protective of human health and the
environment, then these DOD
regulations would supersede RCRA
regulations. The DOD regulations, rather
than RCRA, would then govern range
cleanups. EPA would issue a notice at
the time DOD's regulations were issued,
announcing that DOD cleanup
regulations took precedence and that
munitions at closed or transferred
ranges are not to be considered RCRA
statutory solid waste.
This "sunset" provision reflects EPA's
conclusion that the legal arguments
supporting the characterization of.
munitions on closed or transferred
ranges as "solid waste," and the legal
arguments opposing such a
characterization are finely balanced,
with the result that EPA has the
discretion to select either interpretation
pursuant to section 3004(y). The choice
of whether to define such munitions as
"solid waste," then, rests with EPA, and
the proposal reflects EPA's views of
how human health and the environment
can best be protected, given the special
hazards posed by military miiutions.
In fact, the applicability of RCRA
corrective action authorities to ranges
has long been subject to dispute. The
Department of the Army's Regulation
200-1, Environmental Protection and
Enhancement, explicitly states that .
RCRA sections 3004(u) and (v) do not
apply to military ranges (AR-200-1,
section 6-7(j), April 23,1990). In its
proposed subpart S corrective action
regulations, EPA agreed, suggesting that
military firing ranges and impact areas
"should not be considered solid waste
management units," and therefore
sections 3004(u) and (v) would not
apply (55 FR 30809, July 27,1990). On
the other hand, several EPA regions and
• States have asserted that these
authorities apply to military ranges.
Today's proposal would resolve this
question. If adopted, proposed
§261.2(g)(4) would have the effect of
bringing munitions at closed ranges and
at ranges being transferred from military
control under RCRA corrective action
standards, if the installation were
otherwise subject to RCRA permitting
requirements. Under this proposed
section, munitions at a closed range .
would be defined as solid waste, and
the range (if it contained munitions or
other contaminants) would constitute a
solid waste management unit. Releases
of hazardous wastes or constituents at or
from the range would therefore
potentially be subject to corrective
action under sections 3004(u) and (v), or
3008(h). On the other hand, active and
inactive ranges would not be considered
solid waste management units. In
addition, proposed § 261.2(g)(4) would
provide that, once DOD issued
regulations for range cleanup, these
DOD regulations would supersede
RCRA cleanup authorities.
In practice, RCRA corrective action
would generally require an assessment
of possible risks.and releases at closed
ranges. In some cases, sampling of
environmental media (for example, soil,
ground water, or surface water) might be
required. The level of assessment
needed would be consistent with the
potential risk of exposure. It is
important to emphasize, however, that
the RCRA corrective action authorities
do not automatically require cleanup to
, specific levels. For example, risks from
unexploded munitions might be
controlled, where appropriate, through
access restrictions. In fact, DOD is
already required to address range
cleanup as part of its own restoration
program. Thus, today's proposal, if
adopted, would simply provide EPA or
a delegated State with independent
oversight of cleanups at RCRA sites, but
would not affect the substantive cleanup
standards that apply.
Proposed § 261.2(g)(4)(i) specifies that
munitions remaining at closed ranges
would be solid waste, for statutory
purposes. Some may argue that EPA
should propose to define munitions on
active ranges as solid wastes as well.
EPA, however, focused on closed rather
than active ranges because it is
technically difficult to address
munitions on active ranges, and because
periodic cleanups (other than range
clearance exercises) at these ranges are
likely to be of limited environmental
value, particularly since the ranges are
under direct control of the military and
public access is restricted. Also, it could
involve risk to cleanup personnel. EPA
emphasizes, however, that non-
munition releases are unaffected by
today's rule. Also, environmental
releases from range activities that
migrate off-range in ground-water or
runoff, including from active ranges,
would be statutory "solid waste," and
could bs addressed under RCRA section
7003 . They could also be addressed
under the Clean Water Act or CERCLA.
EPA also considered including
munitions on "inactive" as well as
"closed" ranges in proposed
§ 261.2(g)(4)(i). This approach would
have the effect of pushing RCRA
sections 3004(u) and (v), and 3008(h),
corrective action requirements earlier in
the process. EPA, however, has not
proposed this approach. The Agency
recognizes that inactive ranges may
frequently be reused, and questions-the
value of a formal corrective action
process when the area will likely be
subject to range use again. Furthermore,
such an approach might only encourage
installations to continue use of ranges,
rather than discontinue their active use,
for fear of triggering EPA orState
oversight: In any case, any necessary
remedial action would be required at
the time of change in land use or
transfer of the range from military
control, since at that point the range
would clearly be closed.
There are very substantial legal
arguments and, assuming DOD issues
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56477
protective standards for range cleanup,
compelling policy reasons for EPA to
exeJxase its authority pursuant to
§ 3004(y) in a way that will not lead to
RCRA jurisdiction over range clean up
at any stage. In Barcelo v. Brown, 478 F
Supp. 646, 668-669 (D. Puerto Rico
1979), the District Court held that
materials resulting from activities that
do not resemble industrial, commercial,
mining, or agricultural operations, or
community activities fall outside the
definition of "solid waste" in RCRA.
Because "uniquely military" activities
such as target practice at bombing
ranges do not fall into any of these
categories, the Court held that such
activities were not regulated under
RCRA. This conclusion also would be
consistent with the approach EPA took
in its Subpart S proposal (55 F.R. 30809
July 27,1990). Thus, the Barcelo
decision provides a rationale for
excluding munitions remaining at firing
ranges from the RCRA definition of
solid waste. EPA, however, recognizes
that the lines between "uniquely
military" range activities and other
activities (for example^ target practice at
small arms ranges) are not always clear.
Therefore, EPA seeks comment on what
sorts of range activities are properly
considered uniquely military.
Additional legal arguments in favor of
this alternative approach have been
advanced, including the argument that
unexploded military munitions cannot
become a "discarded material" because
DOD is statutorily obligated by 10
U.S.C. 172 and 10 U.S.C. 2701 to
address the human health and
environmental hazards posed by its
munitions and unexploded munitions
whenever and wherever encountered.
These statutory obligations, according to
this argument, make it legally
impossible for DOD to "abandon" such
materials.
DOD has an existing responsibility to
address environmental restoration
under the "Defense Environmental
Restoration Program" (DERP) (id U.S C
2701 et seq.), and CERCLA response
authorities, and is generally responsible
for preventing hazardous conditions
related to munitions under 10 U.S.C.
172. EPA understands that DOD intends
to propose clean up standards and a
clean up process under these authorities
in a rulemaking to commence by
January 31,1996, and to be completed
by October 31,1996. DOD intends that
the rulemaking will be an open process,
with ample opportunity for the active
participation of the States and of the
public. Further, the remedy selection
and implementation process in the rule
will include a significant role for the
affected states and the interested public.
The proposed rule will specifically
address the role of State regulatory
agencies and the interested public.
DOD's proposed rule will address the
nature of the role of the States and will
request comment on this important
issue. DOD will conduct this
rulemaking in consultation with EPA.
The rulemaking is to fully involve the
public and the States and adequately
address the safety, health, and •
environmental concerns posed by
munitions on closed and transferred
ranges. .
With the promulgation of such a rule,
EPA believes that the proposed
designation of munitions on closed or
transferred ranges as a solid waste
would be unnecessary. In this case,
cleanups would be governed by clear
regulations that are issued through a
public process and that reflect the
unique explosive safety considerations
associated with munitions and the need
for environmental protection. Therefore,
regulation under a separate statute
would be unnecessary. Further, if DOD
promulgates such rules after EPA's
proposed rule becomes final, then EPA
believes that the DOD rules should
supersede the EPA rule identifying
munitions on closed or transferred
ranges as solid waste.
Citizens groups have expressed
concern that, because CERCLA
authorities are limited to "hazardous
substances" which include "hazardous
waste," unexploded munitions might
escape CERCLA control if it were not
defined as being a solid (or hazardous)
waste. EPA believes this concern is
unfounded, because it is the Agency's
expectation that most unexploded
munitions fit within the CERCLA
definition of "hazardous substance,"
independent of whether it is considered
a solid waste.
Finally, proposed § 261.2(g)(4)(ii)
would define military munitions fired
off-range and not promptly rendered
safe (if necessary) and retrieved to be
solid waste, for the purposes of section
1004(27) of RCRA. Firing munitions-that
land outside of ,a range at a military
installation would not be considered the
intended use of the product (i.e., the
munition.) However, today's proposal
would be based on the view that a
failure to render safe and retrieve a
munition that lands off range would be
evidence of an intent to discard the
munition. Rendering safe might include
treatment to prevent explosion as well
as destruction of the ordnance. If
remedial action were infeasible—for
example because the munition was
deeply buried or could not be located—
the operator of the installation would be
required to maintain a record of the
event as long as any threat remained.
5. Waste Materials Derived From '
Munitions Manufacture
DOD and explosives manufacturers
have often raised questions about the
applicability of RCRA requirements to
residues from munitions manufacture or
manufacturing rejects. EPA, however,
does not believe that munitions
manufacture raises special regulatory
issues, and it is not proposing to amend
the current rules in this area. Instead,
EPA's long-standing regulations
denning when manufacturing products
and secondary materials become solid
wastes would continue to apply to
residues and other byproducts of
munitions manufacture and processing.
.These regulations are found in 40 CFR
261.2 and 261.6, and part 266. Under
these regulations, "secondary materials"
from munitions manufacture or
processing—including spent materials,
sludges, by-products, certain
commercial chemical products, and
scrap metals «—are considered to be
solid waste depending on how they are
managed (for example, see section
261.2(c)). And, if these materials are
also "hazardous," they are regulated
under Subtitle C. On the other hand, off-
specification ordnance or line rejects are •
considered products, and not wastes
subject to regulation under RCRA. If
these off-specification materials or
rejects continue to meet the definition of
military munitions, today's rule would
define when they became hazardous
• waste.
EPA believes that it would be
standing rules on the definition of solid
waste in the context of today's
rulemaking. At the same time, however,
EPA is considering substantial
amendments to its current rules to
facilitate the recycling of secondary
materials. These amendments would
likely apply to secondary materials
resulting from munitions manufacturing
as well as secondary materials from .'
other industrial and manufacturing
operations.
C. Standards Applicable to Generators
and Transporters
Today's proposal would make two
changes to the RCRA .generator and
transportation requirements. First
proposed §§ 262.10(h) and 263.10(c)
would clarify that persons responding to •
immediate threats from explosives and
military munitions are not subject to
RCRA generator and transportation
oo™ese terms are def"«id in 40 CFR 261.1(c) and
251.33.
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56478 Federal Register / Vol. 60, No. 216 /.Wednesday, November 8, 1995 / Proposed Rules
requirements. This proposal would
apply to all explosives emergency
responses (military and non-military) as
well as to all conventional and chemical
military munitions emergency
responses. This proposal is discussed in
more detail in Section IV.E of this
preamble.
Second, proposed §§262.10(i),
263.10(d), 264.70(b)(2), and 265.70(b)(2)
would exempt stockpiled munitions
(that are hazardous wastes under
sections 261.2(g)(ii-iv)) shipped off-site
to DOD-owned or controlled TSDF
under DOD tracking procedures from
RCRA manifest requirements. This
exemption would apply not only to
military personnel, but also to
commercial carriers who have signed a
compliance agreement with the Military
Traffic Management Command, and
who operate under the DOD system.
This exemption would not apply to the
off-site transport of non-stockpile
munitions (e.g., excavated hazardous
wastes under proposed § 261.2(g)(l)(i)
or range clearance munitions), since
these materials are not subject to the
same stringent DOD off-site shipping
controls as are stockpiled munitions.
Thus, the off-site shipment of buried or
landfilled munitions, UXO, or munition
debris would require the RCRA manifest
and container markings (if the material
were hazardous). The exemption would
also not apply to the transport to a
commercial (off-site) treatment, storage,
or disposal facility.
This proposal to exempt stockpiled
military munitions from the RCRA
manifest is based on EPA's conclusion
that the DOD transportation and
inventory controls are at least
equivalent to the RCRA manifest
controls, and on the safe transportation
record of DOD.
The DOD shipping standards and
controls provide a "closed-loop" system
similar to the RCRA manifest. These
controls include the following forms:
Government Bill of Lading (GBL) (GSA
Standard Form 1109) and associated
Special Instructions and Notes (SIN)
and Routing Instructions and .Notes
(RIN)—a series of files within an
automated information base used in
preparing the GBL continuation sheets;
requisition tracking form DD Form 1348;
the Signature and Talley Record (DD
Form 1907); Special Instructions for
Motor Vehicle Drivers (DD Form 836);
and the Motor Vehicle Inspection
Report (DD Form 626). The DOD
Standards, giving instructions on the
use of these forms, include: Army
Regulation (AR) 55-355—
Transportation of Ammunition,
Explosives, and Other Hazardous
Materials; AR 725-50—Requisitioning,
Receipt, and Issue System, Army
Material Command (AMC)-R 385-100—
Safety Manual; and DOD Directive
6055.13—Transportation Accident
Prevention and Emergency Response
Involving Conventional DOD Munitions
and Explosives. "A Report to Congress
On the Adequacy of Department of
Defense Safety Standards for
Transportation of Hazardous Materials"
(1989) provides a summary of these
controls. These documents are available
in the public docket for today's
proposal.
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. DOD
munitions shipments also comply with
the DOT hazardous materials
transportation standards, which address
packaging, labeling, marking,
placarding, emergency response,
training, and shipping documentation
(49 CFR100-179, 350-399). Although
the DOT standards are not mandatory
for Federal agencies, DOD's standards
have made them mandatory (e.g., DOD
4500.9-Transportation and Traffic
Management, January 26,1989). EPA
has reviewed these DOD documents and
concludes that the resulting procedures,
in conjunction with the applicable DOT
standards, provide for consistency with
the requirements of RCRA section 3003.
As a result of these and other controls,
DOD's transportation safety record is
excellent. DOD makes approximately
50,000 shipments of military munitions
and explosives annually, including
shipments for demilitarization.
According to the U.S. Army Technical
Center for Explosives Safety's
Explosives Safety Information Database
and the DDESB's Historical Accident
Database, there are about 20 minor non-
explosive incidents per year (e.g., minor
traffic accidents). In the past 20 years,
there have been only three accidents
involving the munitions cargo itself, and
of these three, only one resulted in an
explosive detonation.
Regarding the RCRA manifest and
marking requirements, DOD is
concerned about training its personnel
in two separate systems, and
maintaining both of these systems
simultaneously—one for its own
management of the military stockpile,
and one (covering a small portion of the
stockpile) for regulatory oversight. In
addition, DOD is concerned about
certain specific aspects of RCRA
transport requirements—for example,
the prohibition in § 263.12 against
storage, of wastes in transport in
unpermitted "transfer facilities" for
longer than ten days. According to DOD,
this restriction may conflict with its'
need to sequester shipments of
munitions in designated safe havens in
case of emergencies or unanticipated
transportation difficulties. At the same
time, critics of DOD are concerned about
any system that is self-regulating, and
question the burden that compliance
with RCRA would impose.
In light of the concerns of DOD and
members of the public, EPA.solicits
comment on: (1) whether RCRA
transportation requirements are needed
for military munitions, given DOD's
current practices, and whether other
alternatives would be appropriate (e.g.,
the approach EPA adopted for
"universal wastes" (60 FR 25492, May
11,1995), which requires recordkeeping
and a streamlined tracking system for
certain recycled wastes), (2) whether
transport of unused munitions (i.e.,
munitions in the stockpile) going for
disposal should be handled differently
from used or previously disposed of
munitions, (3) whether other
modifications (besides the manifest and
marking exemptions) should be made to
RCRA transportation requirements to
address DOD concerns, and (4) whether
shipment of munitions from FUDs sites
or shipment to commercial waste
management facilities should also be
exempted from transportation
requirements.
EPA has not proposed other
amendments to generator or transporter
standards for waste munitions. DOD has
raised concern that, under today's
proposal, compliance with generator
standards could be complicated and
expensive, particularly because of 40
CFR 262.34 requirements for
contingency plans, inspections,
personnel training'plans, and tank or
container storage. EPA emphasizes that
facilities with military magazines used
to store stockpiled munitions would not
be subject to these requirements. These
requirements apply to generator
facilities that accumulate hazardous
waste. Since in most cases a stockpiled
munition in storage would not be
regulated as waste until it was removed
from the magazine, the facility (and the
magazine) would not be subject to
accumulation standards. Instead;
installations removing stockpile
munitions from storage for the purposes
of disposal would be subject to the
following standards: (1) Determining if
the waste were hazardous and
determining treatment requirements; (2)
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Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 I Proposed Rules 56479
obtaining a RCRA identification
number; (3) preparation of a RCRA
biennial report and RCRA section 3016
biennial report; and (4) waste
minimization program certification
under RCRA section 3002(b). EPA
solicits comment on the appropriateness
of these requirements and whether they
are necessary.
D. Storage of Military Munitions .
In enacting RCRA § 3004(y), Congress
sought to ensure that management
standards for waste military munitions
. under RCRA would not be inconsistent
with safety standards established under
10 USC § 172. In the development of the
FFCA, EPA and DOD jointly took
forward a legislative proposal to provide
for better integration of the DDESB
explosives safety regulations and the
specific requirements of the RCRA
regulations. Although the specific
statutory language of RCRA § 3004(y)
does not address integration of the
RCRA standards with the DDESB
explosives safety standards, this point
was spoken to during the legislative
development process and appears
throughout the legislative history for
RCRA § 3004(y).
Today's proposal includes a new
subpart EE in 40 CFR Parts 264 and 265
for military magazines storing-
hazardous waste munitions. This
subpart combines the environmental
features of the current RCRA storage
unit standards with the DOD Explosives
Safety Board (DDESB) munitions storage
magazines standards to eliminate
potential inconsistencies or conflicts
between the RCRA and DDESB
standards. The proposal does not
require that all munitions be stored in
magazines meeting these standards, but
rather, provides an alternative for
permitting the storage of military
munitions waste under RCRA.
Depending on the explosive hazards,
military installations may still seek a
permit and store waste munitions under.
the already existing 40 CFR parts 264
and 265 standards for other types of
storage units, including containers
{subpart I), tanks (subpart J),
containment buildings (subpart DD),
and perhaps waste piles (subpart L).
DOD would apply for a permit under
the most appropriate of these sets of
standards. The new subpart EE
standards would be more appropriate
for most military explosive and „
chemical munitions wastes, including
products that DOD determines-are a
hazardous waste under today's
§ 261.2(g)(l)(iv) and unexploded
ordnance recovered fromTanges and
moved into storage prior to treatment or
'disposal.
Consistent with the RCRA standards,
today's proposal covers design,
operation, monitoring, inspection,
closure, and post-closure care, and it
addresses the same concerns, as do the
other RCRA storage unit standards. The
design and operating standards set
containment and control performance
standards to prevent contamination of
soil, ground water, surface waters, and
the air; they also address the DOD safety
concerns to protect against explosions
and to minimize the impact if one •
.should occur. The proposal includes a
primary barrier or containment system,
which may be a bomb shell, a protective'
casing, a storage container, or a tank.
For non-liquid wastes stored outdoors
.or in open storage areas, the unit design
and operation must provide that the
waste will not be in standing
precipitation. This may be
accomplished by a number* of design
and operating features, including a
sloped impervious base or a pervious
base, and/or waste elevation..
For those few military munitions
wastes that are liquids, in addition to
the primary barrier or container, the
unit would have to provide a secondary
containment system. The secondary
containment system design, operation,
controls, and monitoring features may
include a combination of sumps,
pumps, drains, slope, double-walled
• containers or tanks, and/or elevated
waste or other features that provide that
any released liquids or precipitation are
contained and promptly detected and
removed from the waste area.
The proposal covers the three basic
designs of the DDESB storage standards:
(1) earth-covered magazines (which are
frequently used for shock sensitive and
other munitions), (2) above-ground
magazines (which might be used for •
munitions that do not pose a mass
detonation or fragment producing
hazard), and (3) outdoor or open storage
areas (typically for munitions that do
not pose a significant potential for
explosion).
Monitoring and inspections would be
required to assure that the containment
systems and controls are working as
designed, that the wastes are stable, and
that no contaminants that might . .
adversely affect human health or the
environment are being released from the
magazine. In addition, all hazardous
waste munitions would have to be
inventoried at least annually, which is
consistent with current DOD
requirements.
The closure standards mirror the
other RCRA storage unit closure
standards, requiring waste and
contaminant removal and containment
system decontamination.
In addition to the subpart EE
approach, EPA is considering and
solicits comment on three alternative
approaches. . ..
Under the first alternative, EPA would
defer regulating the storage of waste
military munitions under RCRA and
subject them only to the explosives
safety standards developed by DDESB
and Services. DOD believes that this is
statutorily permissible under the
definition of hazardous waste found in
RCRA § 1004(5). This definition states
that a "hazardous waste" is a "solid
waste, or combination of solid waste,
which because 'of its quantity,
concentration, or physical,' chemical, or
infectious characteristics 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." With respect to the first
criterion, DOD maintains there is no
evidence that waste military munitions
in storage cause or contribute to an
increase in mortality or illness (save for
the case of an accidental detonation of
those munitions, which the DOD's
excellent safety record shows is
unlikely). Regarding the second
criterion, DOD believes that the existing
DOD controls over the storage and
transportation of all munitions,
including waste munitions, are adequate
to prevent waste military munitions
from posing a substantial or present
threat to human health or the
environment.9 .
DOD's underlying rationale for this
approach is-as follows. The regulatory
program developed by EPA in response
to the RCRA mandate establishes
standards for the storage of wastes both
by those who generate the waste and
those who provide permanent long-term
storage, treatment, or disposal. These
regulations were designed from the
outset to address problems stemming
from waste management at, for example,
industrial operations that, prior to
RCRA, were largely unregulated. Hence,
EPA has historically examined the
consequences of "plausible
mismanagement" scenarios since there
were no other controls over the
management of these wastes. DOD
believes that the case of military
munitions is fundamentally different in
that there are existing statutory
' 'This logic does not extend to the treatment or
disposal of waste munitions where EPA believes
that full RCRA compliance is appropriate to protect
human health and the environment.
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56480 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
authorities and regulatory programs
• addressing the storage of military
munitions, including waste military
munitions. The design and operation of
all DOD ammunition storage units are
conducted in compliance vrith.
standards set by DDESB and Service-
specific regulations and implementing
procedures. While these standards have
safety as the primary concern, as
explained earlier in this preamble, EPA
and'one interested party have reviewed
the DDESB standards in detail and
concluded that the technical design and
operating standards of the DDESB meet
or exceed RCRA standards in virtually
all respects. There were gaps in certain
procedural requirements and-in areas
unrelated to risks from explosive
materials (e.g.. in requirements to
coordinate with local authorities or in
closure requirements.). At this point,
neither EPA nor DOD is convinced that
application of the RCRA standards in
addition to DDESB and Service-specific
standards would substantially increase
protection of human health or the
environment.
For example, all military munitions-
related operations, including those
involving \vaste military munitions, are
conducted in accordance with an
approved Standing Operating Procedure
(SOP) that provides detailed guidance
on how personnel are to complete a
specific activity. These SOPs address a
wide variety of issues including, but not
limited to: safety, security,
environmental protection, and quality
assurance. Each SOP must be approved
by different functional areas at the
installation, including: operations.
safety, industrial hygiene.
environmental compliance, security,
quality assurance, and command
representatives. Personnel
implementing these SOPs are required
to be trained and certified as qualified
to perform the task to which they are
assigned.
Munitions storage units are also
required to be inventoried on at least a
yearly basis: however, some munitions
(i.e.. security class I or II) require
inventory more frequently.1" During
these inventories, in addition to
counting the munitions present, the
organization conducting the inventory
updates other data elements in the
record. Discrepancies are addressed
through a research, investigation, and
reconciliation process. All inventory-
related activities are overseen by an
independent quality control and quality
assurance organization. Accounting
"'These arc items with a high intrinsic value and
items for which additional security procedures are
required to prevent their theft.
procedures for these munitions are
managed through 'two separate and
distinct data systems, one at the
installation and one at a central
repository. The records kept at the
installation include: quantity, location,
ownership (i.e.. specific organizational
element within DOD), physical
condition, and current inventory status.
The actual storage procedures for
military munitions are based on four
factors that relate to the physical and
chemical characteristics of these
materials: (1) compatibility grouping; (2)
hazard class; (3) net explosive weight
(NEW); and (4) quantity distance
formulae. These are contained in the
DDESB standards "DOD Ammunition
and Explosives Safety Standards" DOD
6055.9-STD, which may be obtained by
contacting Ms. Lydia Sanchez, DOD
Explosives' Safety Board, 2461
Eisenhower Ave., Rm. 856-C,
Alexandria, VA 22331-0600, or by
E-mail.at
SANCHEZLY@DDESB.ACQ.OSD.MIL,
or from the EPA docket for today's rule.
DOD also argues that the proposed
approach in this first alternative is
consistent with other aspects of RCRA,
other findings in law, and the approach
taken in other regulatory matters
addressed by the Federal government.
DOD points out that the DDESB
standards for the storage of munitions
were subjected to judicial review in
Pratt v. Hercules, Inc., 570 F. Supp. 773,
Cir. 1982. In this decision the court
held: For reasons cited in the court's
earlier analysis * * * this court finds
that the standards promulgated by the
DDESB * * * were sufficient to comply
with the mandate (10 U.S.C. 172) of
eliminating undue risk of harm to those
(inside and) outside the (facility).
Further, the Occupational Safety and
Health Administration has recognized
the statutory authority of DDESB and
their expertise in establishing
requirements for the safe storage of
military munitions. In a November 8,
1990. rule OSHA stated: The DDESB has
the final review and approval authority
for any engineering changes at
government owned facilities to assure
that they are consistent with explosives
safety standards and do hot increase
explosive risk (55 FR 46948, November
8. 1990).
The most important piece of evidence
in support of DOD's position is the
Services' excellent record in providing
for the safe storage and transportation of
military munitions, as discussed
elsewhere in this preamble.
In addition. DOD believes that such
an approach is wholly consistent with
the President's initiative to reform
Federal regulations to eliminate
unneeded, duplicative. or superfluous
requirements and is also entirely
consistent with the President's "
requirements for promulgation of new
regulations, as set forth in Executive
Order 12866. Executive Order 12866
requires that any Executive Branch
agency consider, as part of developing
new regulations, whether existing
regulations (or other laws) have created
or contributed to the problem that a new
regulation is intended to correct, and
whether those regulations (or other
laws) could be modified to achieve the
intended goal of regulation more
effectively.
For these reasons. DOD asserts that
waste military munitions do not have to
be managed in accordance with RCRA
standards for the storage of hazardous
waste so long as they are stored in
accordance with the regulations
established by DDESB and the Service-
specific implementing procedures and
requirements. As a separate matter,
however, to meet the obligations
imposed by Executive Order 12866,
DOD is working with EPA to address
those limited areas in the DDESB
standards where EPA has noted '
differences between the DDESB
standards and RCRA standards.
Therefore, EPA solicits comments as to
what specific requirements are needed
to make the DDESB standards consistent
with RCRA.
The second alternative approach
would specify that waste munitions
transported and managed in accordance
with DDESB standards would not be an
RCRA hazardous waste, and therefore
would not be subject to Subtitle C
standards. RCRA section 1004(5)(B)
defines as "hazardous" those wastes
that may present a hazard "when
improperly * * * managed." In
addition, section 3001 of RCRA
authorizes EPA to determine whether to
designated waste as "hazardous." In
determining whether a specific waste
should be designated as "hazardous,"
EPA traditionally considers plausible
"mismanagement scenarios." If
significant risk were likely to occur
under these scenarios, EPA would
designate the waste, as hazardous. The
Agency, however, believes that it is not
required to consider implausible
mismanagement scenarios in
determining whether a Waste is
hazardous. Thus, if mismanagement of a
particular waste is implausible even
without regulation under Subtitle C,
EPA believes it has authority to refrain
from regulating the waste under that
subtitle. Under this approach, EPA
would take into account DOD's record
in storing waste munitions and DOD's
existing storage standards in
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Federal Register /Vol. 60, No. 216 / Wednesday, November 8. 1995 / Proposed Rules 56481
determining whether it was necessary to
regulate waste military munitions as"
hazardous. Once these controls are
taken into account, it would be argued
that mismanagement of waste munitions
is unlikely and regulation of these
materials under Subtitle C is redundant.
EPA is considering this approach in
several other rulemakings and will be
discussing the legal rationale in detail in
those rulemakings. A more detailed
legal discussion will be provided in
EPA's forthcoming Hazardous Waste
Identification Rule proposal, scheduled
for publication in November 1995.
Where it is relying on this approach,
EPA typically intends to prescribe
specific conditions or procedures to
ensure that a waste would not be
mismanaged. In the case of military
munitions, EPA is considering a
comparable approach. Under this
approach, EPA would specify that waste
munitions were not "hazardous" as long
as they were stored'in compliance with
DDESB standards. Failure to store waste
munitions in compliance with these
'standards would, in effect, render the
material "hazardous", and constitute
illegal management of hazardous waste.
Under the third alternative. EPA
would not establish special performance
standards for waste military munitions
under 40 CFR Parts 264 and 265 Subpart
EE; instead, EPA would simply specify
in Parts 264 and 265 that storage of
waste munitions must meet DDESB
standards. Waste storage units at interim
status facilities would automatically be
required to comply with these
standards. For permitted units, EPA or
the State would not specify particular
standards in the permit, but would
simply cite DDESB standards. This
approach would allow EPA or State
regulators directly to enforce DDESB
standards-, but would eliminate any
possible inconsistency or redundancy
between military and EPA standards."
EPA took essentially the same'
approach in its regulations of
underground storage tanks in 40 CFR
Part 280. In this regulation, the Agency
stated that compliance with the specific
industry codes constituted compliance
with EP'A technical standards. One
traditional concern with this general
approach is that industry standards
change from time to time, complicating
regulator}' referencing. In the third
alternative approach under
consideration in today's proposal, EPA
would not expect to revise its RCRA
standards every time the DDESB
changed its standards. To do so would
not only require constant EPA
rulemaking, unnecessarily consuming
limited resources; more important,
perhaps, it would foster enormous
confusion, because there would always
be a time lag between DDESB's adoption
of new standards and EPA's revision of
the RCRA regulations. \Vhen DDESB
came out with new standards, facilities
would be required to meet them, and
the standards would be enforceable
through DDESB's regular compliance
mechanisms. But (until EPA changed its
standards), facilities would also remain
subject to the older standards
incorporated into the RCRA regulations.
The state authorization process under
RCRA would complicate the process
even more, since it would lead to
further delay in regulatory adoption of
new DDESB'standards. As a result,
under this option, EPA would refer to
the most recent DDESB standards. Given
DOD and the Services' long record of
safety in the storage of military
munitions and the DDESB's
independent status within the
Department of Defense, EPA believes
that this approach would be both
enforceable and fully protective of
human health and the environment.
As mentioned above. EPA recognizes
that certain RCRA requirements (e.g.,
those related to closure) are not in the
DDESB standards. Therefore, EPA
solicits comments on what specific
requirements should be added to
supplement the existing DDESB
standards under any of the four
alternatives and whether these should
be added to the RCRA or the DDESB
standards.
All three of the alternative options
discussed above rely on the DDESB
standards. Military facilities would be.
assured that their basic obligation, in
storing waste munitions, would be to
comply with DDESB standards. If they
were doing so, then under the first
alternative, they would be excluded
from RCRA coverage entirely; under the
second alternative, the stored "waste"
munitions would be RCRA solid waste,
but would not be regulated as hazardous
waste (e.g., permits would not be
required); under the third option,'
"waste" munitions would be RCRA
hazardous waste, but compliance with
DDESB standards would constitute
compliance with RCRA technical
standards.
The first alternative differs from the.
other two options in one important
respect: under this alternative, EPA and
authorized States would have no
enforcement or regulatory role in the
storage of waste munitions. Under the
other alternatives, EPA and the States
would have an oversight role', and
regulatory agencies could enforce
against facilities storing waste
munitions out of compliance with
DDESB standards. At the same time,
however, the second alternative would
provide significantly more relief to DOD
and the Services than the third, and in
many respects is similar to the
"deferral" alternative. In .particular, the
approach (like the "deferral" approach)
would eliminate permit requirements
for storage of waste munitions (e.g., the
procedures of Part 270. including public
notice would not apply to storage of
waste munitions, because waste
munitions stored in compliance with
DDESB standards would not be
considered "hazardous waste");
facilities generating waste munitions
would not have to comply with
generator standards (e.g.. filing biennial
reports); the land disposal prohibitions
against extended storage would not
apply; and permitted facilities receiving
munitions for disposal would not be
prevented from receiving that material,
even if they had "off-site" prohibitions
in their permits—since the material
would only become ,a hazardous waste
when it arrived at the treatment or
disposal unit.
EPA solicits comments on all three of
these alternatives, as well as the subpart
EE approach in today's rule.
E. Emergency Responses
Today's proposal clarifies that RCRA
generator, transporter, and permit
requirements do not apply to immediate
responses to threats involving military
munitions or other explosives. EPA is
proposing this language to address
concerns of DOD and other emergency
response officials that RCRA x
requirements may impede emergency
responses, especially by causing delays
or confusion.
The current RCRA rules exempt
emergency responses from full permit
requirements in two ways: (1) permits
are not required for immediate
responses to a discharge of hazardous
waste or an imminent and substantial
threat of a discharge (§§ 264.1(g)(8),
265.1(c)(ll), and 270.1(c)(3)); and (2) in
cases of imminent and substantial
endangerment to human health or the
environment, a temporary emergency
permit may be issued to a facility to
treat, store, or dispose of hazardous
waste—this permit may be issued.orally,
if followed by a written emergency
permit within 5 days, and may not
exceed 90 days in duration (§ 270.61).
(In clarification, EPA emphasizes that
the exemption from permit
requirements in the case of immediate
responses is an exemption from the
requirement for an emergency permit
under § 270.61, as well as from full
RCRA permitting. Thus, an immediate -
response, under Federal regulations,
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56482 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
would require neither a full RCRA
permit nor an emergency permit J
EPA has received a number of
inquiries, from both-military and non-
military sources, seeking clarification of
how these provisions apply to
emergency situations involving
explosives. In response. EPA has stated
that it considers immediate responses to
situations involving explosives to be -
exempt from RCRA permitting
(including emergency permitting), and
substantive requirements (e.g., the risk
assessment requirements for OB/OD
treatment) under the exemptions listed
in §§ 264.1(g)(8). 265.1(c)(ll). and
270.1 (c){3). In EPA's view, time-critical
responses to explosives emergencies
constitute immediate responses to a
discharge, or imminent and substantial.
threat of a-discharge, of hazardous
waste. On the other hand, if an
immediate response is not necessary to
address the threat, and the response can
be deferred, the responding personnel
should seek a RCRA emergency permit
under § 270.61.
The intent of today's proposal is to
codify, with some clarifications, the
existing EPA policy. Proposed
§§ 264.1{g)(8Ki)(D); 265.1(c)(ll)(i)(D),
and 270.1(c)(3)(i)(D) make it clear that
explosive and chemical munition
emergencies can be addressed •without a
RCRA permit (including an emergency
permit). The proposal also clarifies, in
§§262.10(h) and 263.10(c), that, if an
emergency response expert at the site
determines it to be appropriate, the
explosive material may be removed and
transported for safe treatment without a
RCRA manifest, and the transporter is
not required to have a RCRA
identification number. Such transport
could be to an open space or an EOD
range. This proposal, which EPA
believes is necessary to allow prompt
response to explosives emergencies, is
consistent with current EPA policy.
Today's proposal includes three" new
definitions in §260.10 to help clarify
the scope of this exemption. The
definition of "explosives and munitions
emergency" describes in detail what
would constitute an emergency, and
clarifies that an emergency situation
includes suspect or unknown situations
with significant uncertainties, including
improvised explosive devices (lEDs,
e.g., home-made bombs). The definition
also states that the'"emergency response
expert" is responsible for determining
whether an emergency exists.
An "explosives ana munitions
emergency response expert" is defined
to include all military and non-military
personnel trained in the identification,
handling, treatment, transport, and
destruction of explosives or
conventional or chemical military •
munitions. Military emergency response
experts include DOD Explosives
Ordnance Disposal (EOD) personnel,
who are trained in responding to
emergency situations involving military
munitions and explosives, and DOD
Technical Escort Unit (TEU) personnel,
who are trained to respond to
emergency situations involving
chemical munitions. EOD and TEU
personnel respond to on-installation
and off-installation incidents involving
military munitions. They also respond
to requests by other Federal agencies or
local civil authorities for assistance with
incidents involving non-military
explosives. Non-military emergency
response experts include the Bureau of
Alcohol, Tobacco, and Firearms (BATF),
Federal Bureau of Investigation (FBI),
Central Intelligence Agency (CIA), Drug
Enforcement Administration (DEA), US
Postal Service, Federal Aviation
Administration (FAA), other
Department of Transportation (DOT),
Department of Interior Bureau of Mines,
State and local enforcement and
emergency response personnel, and
private sector explosives experts or '
specialists.
Finally, an "explosives and munitions
emergency response" is defined as all
immediate response activities identified
and carried out by the emergency
response expert to eliminate the threat.
including all handling, render-safe (e.g.,
methods to defuse or separate initiator
•from the explosive), transportation,
treatment, and destruction activities.
These emergency actions might involve
defusing, detonation, or other treatment
of Ordnance in-place. or transportation
to a safer location, including to an EOD
range, to defuse, detonate, or otherwise
to abate the immediate threat.
DOD has raised three concerns
regarding the regulation of emergency
responses involving munitions or.
explosives under RCRA: (1) the effect of
the RCRA land disposal restrictions on
response actions, (2) possible RCRA
corrective action liabilities, and (3) the
possibility that treatment permits would
be required for areas "routinely" used to
handle emergencies. To the extent that
any of these issues would delay or
complicate responses to emergencies
involving explosive material, EPA
shares DOD's concerns. EPA's objective
in proposing.today's rule, and in
clarifying the applicability of RCRA to
emergency responses, is to remove
regulatory impediments to emergency
responses and to promote the safe and
prompt management of explosives
emergencies. EPA agrees with DOD that
any regulatory impediments to prompt
responses should be removed. DOD's
three concerns are specifically
discussed below.
Concerning the first issue—the
application of the RCRA land disposal
restrictions to explosives emergencies—
EPA continues to regard open burning/
open detonation as not constituting land
disposal. Therefore, the land disposal
restrictions do not applv. See 51 FR
40580 (November 7,1986) and 52 FR
21011 (June 4,1987). With regard to
emergency responses to explosives
involving deactivation methods other
than open burn/open detonation, EPA
notes that the treatment standard for
reactive wastes is deactivation (i.e..
removal of the hazardous waste
characteristic of reactivity): see 40 CFR
268.42. Table 2. These standards are
consistent with typical responses of an
EOD team to an explosives emergency,
and therefore the RCRA treatment
requirements would not present a
problem.
The responding agencies primary
concern on the second issue—^-the
applicability of RCRA corrective'action
requirements—is the possibility that
they might incur liability for site
remediation or investigation when they
conducted an emergency response. In
response to this concern, EPA
emphasizes that RCRA corrective action
requirements would not fall on the
responding agency and that today's
proposal would not in any way change
or increase the responding agency's
liability.
In the first place, 'the standard RCRA
corrective action authorities in sections
3004(u). 3004(v), and 3008(h) would not
be at issue, because they apply only to
RCRA permitted or interim status
facilities. Thus, these requirements
would apply only if the emergency
response took place at a RCRA
treatment, storage, or disposal facility,
and in this case any responsibilities for
corrective action would fall on the
facility owner, rather than on the
responding authority. Furthermore,
RCRA corrective action requirements do
not apply to actions taken under the
immediate response provisions of 40
CFR 264.1(g)(8), 265.1(c)(ll), and
270.1(c)(3). Finally, in the case of a '
response conducted under a RCRA
emergency permit (40 CFR 270.61(b), •
RCRA corrective action requirements
would be excluded under 40 CFR
270.61 (b)(6). This provision requires
that emergency permits exclude
conditions that would be inconsistent
with the emergency situation that the
permit was addressing. (EPA discussed
this point in its RCRA corrective action
proposal of July 27,1990, 55 FR 30806.)
Finally, if a response action is taken
under CERCLA authority, CERCLA
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Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 /Proposed Rules
56483
section 107(d)(l) provides that no
person "shall be liable under this title
for costs or damages as a result of
actions taken or omitted in the course of
rendering care, assistance, or advice in
accordance with the National
Contingency Plan (NCP) or at the
direction of an onscene coordinator
appointed under such plan, with respect
to an incident creating a danger to
public health or welfare or the • •
environment as a result of any releases
of a hazardous substance or threat
thereof."
DOD's concern on the third issue is
that, if the responding agency
transported an explosive device to an
off-site treatment area, that area might
become subject to RCRA permitting
requirements. In emergency situations.
DOD EOD teams and other responding
agencies often find it safer to move
explosive material away from the site
where it was found—where it may
threaten people or property—and
transport it to an EOD range. In such
cases, the fact that the material can be
transported to another location does not '
necessarily mean that the dangerous
situation is under control or the
emergency is over. Rather, it indicates a
need to find an area where site accesa
is controlled and the site conditions are
known (e.g., the distance to nearby
structures is adequate and there are no
subsurface utilities), so that the material
can be disarmed, defused, deactivated,
or destroyed with confidence that an
explosion will not cause injury or
collateral damage. In previous guidance,
EPA has consistently stated that off-site
treatment of explosives derived from
emergency responses does not trigger
permit requirements, as long as it is
legitimately part of the emergency
response. •
Because of this need for safe treatment
sites, some EOD ranges may be regularly
used to destroy explosives managed
during emergency responses. The issue
has been raised (and previous EPA
guidance suggests) that some level of
"routine" use of a particular range
should trigger RCRA permit'
• requirements. In EPA's view, however,
the question of whether a permit is
necessary hinges on the nature of each
individual response (i.e., whether or not
it involves an emergency), rather than
on the number of times a given area is
used for emergency responses. As long
as the response to each individual
incident was an emergency response, a
RCRA permit would not be required.
F. Definition of"On-Site"
Today's proposal would modify the
definition of "on-site" in 40 CFR"
§ 260.10 by adding contiguous property
under the control of one person that is
divided by a public or private right-of-
way, even if access is by travelling along
(as opposed to across) the right-of-way
to gain entry." The definition of on-site
determines whether waste must be
accompanied by a manifest during
transportation and whether part.263
transporter requirements apply. (See,
e.g., 40 CFR 262.20(a) and 263".10(b).
Many facilities generating hazardous
wastes (including most military
installations) are found on large
properties split-by public roads. Under
current regulations, a generator or.TSDF
who produced or managed waste at one
location and moved the waste across the
road for temporary storage would be
moving the waste "off-site," if the waste
were transported along rather than
directly across the road. The waste
transported along the route currently
requires a RCRA manifest. This
requirement does not currently apply,
however, if the wastes are transported
directly across the road.
Today's proposal would expand the
definition of "on-site" to allow
.transportation without a manifest
between contiguous properties
controlled by the same person
regardless of how access is gained from
one parcel to another when such
contiguous property is cut by a public
or private right-of-way. All other aspects
of the definition would remain the
same.
The question of how "on-site" is
defined arose in the context of military
munitions because many military
installations are crossed" by public
roads. Today's proposal, however,
would apply to hazardous waste
generators and TSDFs in general,
because the same situation exists for
non-military entities. For example, a
number of universities, with
laboratories and other sources of small
amounts of hazardous waste dispersed
throughout campuses, have found that
the manifesting and transportation
requirements make it difficult to
consolidate wastes at a single location
for off-site shipment under the current
requirements. Similarly, large industrial
facilities may face the same
administrative or logistical difficulties.
Whether waste no longer subject to
the manifest would continue to be
"The current regulatory definition is: "On-site
means the same or geographically contiguous
property which may be divided by public or private
right-of-way, provided the entrance and exit
between the properties is at a cross-roads
intersection, and access is by crossing as opposed
to going along, the right-of-way. Non-contiguous
properties owned by the same'person but connected
by a right-of-way which he controls and to which
the public does not have access, is also considered
on-site property."
subject to Department of Transportation
(DOT) requirements xvill depend on
whether that material is regulated under
any other DOT hazard class. The
Hazardous Materials Regulations (HMR.
49 CFR parts 171 through 180) define a
hazardous waste as any material that is
subject-to the Uniform"Hazardous Waste
Manifest Requirements of the EPA
specified in 40 CFR part 262 (49 CFR
171.8). If a material is not subject to
EPA's manifest requirements, it is not
considered a "hazardous waste" by
DOT. However, such material may" still
be regulated as a hazardous material and
subject to the HMR if it meets the
defining criteria for one or more of the
DOT hazard classes. Therefore, for these
shipments, generators and/or TSDFs
must decide if the waste falls under any
. of the other DOT hazard classes in order
to'determine if compliance with the
DOT requirements under CFR parts 171
through 180 is required.
EPA believes that change in the
definition of "on-site" will result on
balance in an increase in protection of •
human health and the environment.
EPA believes that the current definition
of on-site may be discouraging
consolidation within a generator's or
TSDF's site, resulting in less control of
the waste by the generator or TSDF.
Removing barriers to consolidation of
waste in one main area, rather than
several small areas, will reduce the
possibility that the public and the
environment will come into contact
with hazardous waste.
EPA also believes that facilitating
more central consolidation will allow
generators and TSDFs to place such
consolidation sites in more remotely
located areas than they would if
confined to the boundaries within
rights-of.-way, thereby increasing the
safety of the public should an accident
occur. The new definition gives
generators and TSDFs such as military
bases and universities more flexibility to
determine where consolidation areas are
situated. In addition, EPA believes this
change in definition will have the added
benefit of facilitating the building of
safer accumulation areas because
generators and TSDFs may be more
likely to exceed regulatory requirements
for consolidation 'areas if they are . '
responsible for fewer consolidation sites
overall. EPA expects the benefit of
consolidation on balance outweighs the
risk of allowing transportation without
a manifest along a short stretch of road
to which.the public has access. EPA
requests comments on these views of
the net benefits regarding human health
and the environment.
In modifying the definition of on-site,
EPA intends not to affect requirements
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56484 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
other than the requirement that a,
manifest accompany hazardous waste •
shipments and whether part 263
transportation requirements apply. EPA
requests comments on whether other
requirements of the RCRA program are
affected by this change.
Even though hazardous waste
traversing contiguous property may be
"on-site" for RCRA purposes, discharges
on public rights-of-way could expose
the public to a health risk. DOT and
CERCLA reporting requirements would
apply to such releases, but those
authorities do not necessarily require
actual clean-up of the release. EPA seeks
comment on whether DOT and CERCLA
authorities are sufficient to provide
adequate protection to public health in
the event of a spill or release on a public
right-of-way considered on-site or if 40
CFR 263.30 and 263.31 should continue
to applv to any discharge of hazardous
xvaste during transportation of
hazardous waste on a public right-of-
way regardless of whether it is on or off
site. One way to implement that result
could be to limit the on-site exemption
from transporter requirements in
§ 263.10(b) so that §§ 263.30 and 263.31
would continue to apply to any
discharge of hazardous waste on a
public right-of-way even if it is
considered "on-site."
G. Permit Modifications to Receive Off-
site Waste Munitions
Some RCRA permits at military
installations have conditions
prohibiting the receipt of "off-site"
waste. Under these permit restrictions,
if the point of generation-of a waste
munition is any place other than the
permitted installation, then the waste
munition could not be accepted at the
facility for treatment, storage, or
disposal without a permit modification.
DOD maintains that this situation will
cause a serious disruption of its
munitions management program.
EPA shares DOD's concern that
today's proposal might disrupt DOD's
ongoing munitions management
program, and in response is proposing
in today's rule a means to minimize this
impact. Under this proposal, permitted
facilities xvith prohibitions would be
allowed to continue receiving waste
munitions from off-site sources, upon
notification to EPA, until a final permit
modification is approved. In the case of
interim status, facilities would be
allowed to continue receiving off-site
xvastes, although it might be necessary
for the facility to amend its permit
application.
There are three specific requirements
that \vould attach to this provision and
be codified at 40 CFR 270.42(h). First,
to be covered under this provision the
permitted facility must be in existence
on the date these rules go into effect.
Second, for permitted facilities, the
facility must submit a request for a Class
1 permit modification following the
procedures of 40 CFR 270.42(a). on or
• before the effective date. Third/a
permitted facility must develop and
submit a Class 2 permit modification
within 180 days of the effective date. If
extenuating circumstances will not
allow submission of a Class 2
modification-within 180 days, the
facility may, within the 180 days,
request the permitting agency to allow
an extension for a specified period. The
permitting agency shall respond to any
request for an extension,within 30 days.
If no action is taken by the permitting"
agency within 30 days, the facility is
considered to have been granted the
extension. The permitting agency's
action may be to extend the 30 day
response time.
Today's proposal would not affect
activities at interim status facilities. In
some cases, however, the facility's part
B permit application might include an
off-site waste prohibition. In this case,
the facility owner should amend the
permit application.
These proposed requirements are
similar to the provisions for newly
listed wastes in 40 CFR 270.42(g), which
are designed to prevent the disruption
of ongoing waste management activities,
while bringing them promptly under
regulatory control. EPA anticipates that
the provisions in proposed 40 CFR
270.42(h) will similarly prevent
disruption in the handling of waste
munitions.
Despite this proposed approach. DOD
remains concerned about any option
that might restrict the movement1 of
munitions undergoing demilitarization
or add. in its view, unnecessary
paperwork costs and redundant reviews.
As DOD has pointed out, operations at
the receiving facility would remain the
same after permit modifications, and
conditions affecting human health and
environmental protection would
generally not change. For example, the
provisions of the facility's permit
addressing the types of waste, the
quantities that might be treated at any
given time, and permissible releases
from the treatment process would likely
remain the same. In which case, the
permit modification would be a
paperwork exercise, adding to costs but
not adding to environmental protection.
DOD's preferred option, discussed in
Section V.A.I of this preamble, would
be to set the point of generation of the
waste at the point when it arrives at the
receiving unit. In this case, the waste •
would have been generated on-site. and
its management would not constitute a
permit violation.
EPA understands DOD's arguments.
but is concerned about the expectations
of the public in the vicinity of permitted
installations and the perception that
permit conditions are being
circumvented. The permit was issued
through a site-specific public process. -
and, on its face, it appears to prohibit
acceptance of just the sort of material
that would be allowed under DOD's
recommended approach. Arguably, the
most consistent way to address this
issue would be through a site-specific
permit modification, rather than a
national rulemaking. EPA questions
whether it would be appropriate to
promulgate a regulation that would in
effect remove off-site prohibitions from
particular permits—at least as they
applied to waste munitions—without
site-specific notice and an opportunity
for comment.
DOD has particularly cited the costs '
of permit modifications, which, it has
argued, will cost in excess of $50,000
apiece. EPA questions whether a permit
modification would be as costly as DOD
estimates, especially since the
modification would presumably only
amend the permit's prohibition against
off-site, waste, and the permit's technical
or procedural conditions would
generally not be changed. EPA does
agree, however, that permit
modifications to allow "off-site" waste
munitions will increase the compliance
burden on DOD and .the procedural
burden on State regulators. In the
economic analysis supporting this
proposal, EPA has estimated that the
permit modifications will cost 330,000
each (DOD's original estimate) and that
24 permits would have.to be modified
(DOD's estimate). Much of the costs, in
EPA's view, would result from the need
for public outreach rather than technical
work associated with the permit
modification. •
However, in light of DOD's concerns,
EPA requests comments on both the
proposed approach and DOD's
approach, and with specific
recommendations on alternative means
to address concerns regarding public
involvement in the process.
V. Discussion of Major Alternatives
In addition to the approach proposed
in today's notice, EPA considered
several alternatives to addressing major
issues. These alternatives are discussed
below.
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Federal Register / Vol. 60, No. 216 / Wednesday. November 8, 1995 ../ Proposed Rules 56485
A. Stockpiled Munitions
1. Approach Based on Army Regulation
20D-1
- DOD and the individual Services have
historically taken the position that
munitions in the military stockpile only
become waste when they are received at
a treatment or disposal unit. This
approach has been incorporated into
Army regulations in AR 200-1 and,
until recently, guided military practice.
DOD believes its traditional approach
addresses two key points: (1) That
military munitions are fundamentally
different from most other types of
industrial hazardous waste due to their
. unique physical and chemical
characteristics, and (2) that the
management of military munitions is
different from the situation RCRA was
enacted to address in that there are
extensive management, oversight, and
accountability controls already in place.
The primary difference between
DOD's and EPA's approach is in the
definition of the waste's point of
generation. Under the approach
proposed today, the point of waste
generation is generally when the waste
is removed from storage for treatment or
disposal; after that point, the munition
is regulated as hazardous waste. Under
the approach in AR 200-1, the point of
generation is moved to receipt of the
munition at the waste treatment or
disposal unit. Before that point, the
material would not be considered RCRA
solid or hazardous waste.
DOD is concerned about .EPA's
proposed approach in part because of
the costs and paperwork associated with
transporting hazardous waste. More
important, however, DOD is concerned
that many RCRA permits at military
installations prohibit the receipt of "off-
site" waste. DOD's AR 200-1 approach
would solve both of these concerns.
As discussed previously, EPA
addresses these concerns in today's
proposal by exempting DOD-controlled
shipments between DOD installations
from the RCRA manifest requirements,
and by providing Class 1 followed by
Class 2 permit modifications to allow
for off-site wastes. Nevertheless, EPA
solicits comments on both approaches.
2. DOD Interim Guidance
A second- alternative would be for •
EPA to codify the approach outlined by
the military Services in interim
guidance issued in November 1993.
Under this Services-wide interim
approach, munitions removed from the
active inventory undergo review to
determine whether they can be returned
to service or used for other purposes.
When the possibility of beneficial uses
has been eliminated, the material would
be 'transferred to a hazardous waste
account (e.g., the "BHW" account) and
orders to destroy the munition
transmitted to the installations that held
it. The munition would become a
hazardous waste at the point the order
was received by its custodian. The
custodian, then, would become the
generator of the ."waste"; generator
standards would apply at the storage
. magazine; and RCRA land disposal
restrictions would require prompt
treatment and disposal.
EPA has chosen not to propose this
approach because, in EPA's view, it
would not provide any significant
increase in environmental protection.
EPA also shares DOD's concerns that the
approach might significantly complicate
the military's safe management of the
military stockpile.
In particular, DOD has expressed two
major concerns with this approach.
• First, if stockpiled munitions in a
magazine were declared hazardous
waste, that magazine would become
subject to RCRA generator requirements,
including RCRA tank, container, or
containment-building standards: these
standards, in turn, might require
retrofitting of the units, even though
they were designed according to
military standards to protect against
explosive hazards. Second, if the
munitions were not removed from the
magazine and shipped off installation
within 90 days, the installation would
become subject to RCRA permit.
requirements. Thus, the installation
would be faced with the choice of
readjusting its standard operating
procedures for munitions to ens'ure that
items in the BHW account were shipped
off-site promptly, or seek a RCRA
permit—a 2 to 3 year process involving
considerable time and paperwork.
Neither result, in DOD's view, would
lead to increased safety or
environmental protection, and risk
might actually increase because
munitions would be moved more
frequently.
3. Munitions Scheduled for Destruction
by International Treaty
Several interested parties have also
suggested that when a munition has
been slated for destruction by act of
Congress or treaty, there is clear
evidence of an intent to discard, and
therefore the munition should be
considered solid waste. For example,
Congress has instructed the Department
of Defense to destroy the chemical
weapons stockpile by December 31,
2004 (National Defense Authorization
Act for Fiscal Year (FY) 93), and. once
the United States ratifies the Chemicals
Weapons Convention and the
Convention goes into force, the U.S. will
be bound by international treatv to
destroy the weapons within ten years. It
has been argued that the act of Congress
and U.S. ratification of the Convention
(when that occurs) would constitute a
decision to discard the munitions.
Therefore, the munitions should be •
handled as hazardous waste.
EPA has not taken this position to
date in interpreting its solid waste
regulations, and it is, not proposing to do
so in today's rule. Disarmament
conventions and Congressional
directives to demilitarize a weapons
system should not. as a general matter,
be interpreted as a decision to discard •
a munition.. For example", the Chemical
Weapons Conventions (like most such
conventions) establishes a staged
schedule, to allow mutual assurances '
that all signatories are fulfilling the '
agreement. Thus, the stockpiled
munitions serve a deterrent purpose.
Furthermore, the phased schedule laid
out by the treaty would put the Army in
violation of the'RCRA land disposal
restrictions, which would prohibit
storage of "waste" munitions beyond
one year (with limited extensions).
Indeed, despite the convention, the
stored munitions (with the exception of
M55 rocketsj remain part of the active
military stockpile. While these
"products" may be slated for phase-out
in the future, they are still available (at
least in theory) for use in the interim.
Furthermore; EPA questions whether
RCRA regulation would substantially
add to the safe management of military
munitions slated for destruction.
• Considerable attention, to be sure, has
focused on the stability and safety of the
chemical weapons stockpile. EPA notes,
however, that the munition on which
most of the discussion has centered—
the M55 rocket—is already regulated as
hazardous waste. Therefore, the main
concern with the stored chemical
weapons is already being addressed as
a regulatory matter. In addition, under
proposed §261.2(g)(l)(iii), leaking
munitions would be regulated under
subtitle C. Therefore! leaking chemical
munitions would require regulation.
Finally, the general safety of stockpiled
chemical munitions is already the
subject of considerable internal and
external review. EPA, as a result,
tentatively concludes that additional
oversight under RCRA would not
significantly increase protection of
human health and the environment,
while increasing the paperwork burden
on the services and the workload
burden of the regulatory agencies.
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56486 Federal Register / Vol. 60. No. 216 /Wednesday, November 8. 1995 / Proposed Rules
4. Alternatives Based on Condition of
Munition
EPA also considered definitional
approaches based on the characteristics
of the munition. It has been suggested.
for example, that munitions should
become hazardous waste when thev can
no longer be used for their intended
purposes. This determination might be
based on an analysis of the munition
itself, or on a weapon's predicted
service life. Similarly, "waste"
munitions might include off-
specification munitions and munitions
rendered obsolete because the
armaments for which they were made
no longer exist. EPA, however, has
tentatively rejected this approach
(except in the case of leaking or
deteriorated munitions).
First, this approach would be
inconsistent with EPA's approach to
other "products." Commercial products
do not automatically become solid
waste when they can no longer be used
for their intended purposes, and off-
specification commercial products are
not considered solid waste. These
materials remain products: they may be
put to other uses, or reprocesse'd for
their original use. or simply stored for
possible future uses without being
Drought under" RCRA jurisdiction. The
event that triggers RCRA jurisdiction is
an intent to discard the material.
Second. EPA believes that this
approach would be extremely difficult
for regulators to implement or enforce.
The determination that a munition can
or cannot be used for its intended
purpose, for example, will often be
highly technical and require detailed
expertise in weaponry. EPA and State
regulators typically will not have this
expertise, and it will often be hard to
rebut an assertion by military personnel
that a munition can indeed be used.
Service life is also likely to be an
unreliable guide, because weapons do
not necessarily lose their usefulness at
the completion of service life, and
reprocessing is often a possibility.
Above all. EPA is concerned that this
approach would not provide the clarity
of regulations that Congress sought in
passing the FFCA. Instead, the approach
might lead to protracted disagreements
between the regulators and the regulated
over \vhether a particular munition is
still usable as a munition, with no clear
environmental issue at^take.
S. Regulation of the Demilitarization
Process
One of the primary benefits of RCRA
regulation, according to critics of DOD,
is that prompt treatment of waste would
be required under the RCRA land
disposal restrictions or LDRs. These
restrictions require that hazardous waste
be treated before it js disposed of in a
land disposal unit. Furthermore, the
statute prohibits facilities from storing
waste before treatment, except as
necessary to accumulate sufficient
quantities for proper treatment and
disposal (RCRA § 3004(j)). (Under EPA's
enforcement policy, if storage is for
longer than a year, the person holding
the waste must be able to demonstrate
that the storage is necessary to
accumulate sufficient quantities.) Thus,
if "obsolete." '.'unserviceable," or
"unusable" munitions were defined as
hazardous wastes, their prompt
destruction would be required.
One commenter representing
members of the commercial waste
treatment industry—Strategic
Environmental Analysis, Inc.—
expressed strong support for applying
RCRA oversight at the point when a
munition became unserviceable. The
commenter was particularly concerned
that, if RCRA did not apply at this point,
DOD could play "shell games" and store
waste munitions indefinitely. At the
same time, the commenter
acknowledged the military's need for
flexibility in evaluating and managing
obsolete munitions. To address these
concerns, it recommended a regulatory
approach that would, in effect, bring the
military demilitarization process under
RCRA regulatory control and set specific
schedules for the recycling or
destruction of obsolete munitions.
Under the recommended approach,
EPA would define off-specification,
obsolete, or unusable munitions as
hazardous waste. This waste would be '
subject to technical management
standards, but not yet covered fav permit
requirements or the land disposal
restrictions. Hazardous waste munitions
could be stored one to five years before
they became subject to the land disposal
restrictions. During this time, the holder
of the munition or the appropriate
service would investigate possible
reclamation. If reclamation was
determined to be feasible, it would be
required within one to two years.
(Reclamation would take place under
specially designed RCRA standards.) If
reclamation were not feasible, the
munition would have to be treated
according to land disposal standards
within the regulatorily permitted time
frames (i.e.. one to two years), and the
facility storing the munition would
require a RCRA permit.
This approach, EPA notes, establishes
a radically new definition of "solid
waste" under RCRA, and applies RCRA
standards to the reclamation of unused
products—a considerable extension of
the current regulatory scope of RCRA. In
effect, the approach applies RCRA
requirements to munitions within the
demilitarization account and sets a limit
on the time period a munition can
remain within that account before
reclamation or destruction.
EPA has not proposed this approach
for several reasons. First—leaving aside
the question of whether this approach is
consistent with the statutory scope of
RCRA—EPA does not believe it is
appropriate in this rulemakmg to
develop a broadly expanded regulatory
definition of solid waste. EPA also notes
that commenters did hot provide
evidence of human health or
environmental damage resulting from
non-RCRA storage of "obsolete"
munitions, nor did it provide details on
military "shell games" delaying proper
treatment and disposal. While these
problems may to a certain extent exist,
EPA would require considerably more
evidence before it imposed such a far-
reaching regulatory scheme, going well
beyond requirements that apply to
commercial products.
- In addition, although EPA has not
developed specific cost estimates for the
recommended approach, it clearly could
impose substantial burdens not only on
DOD but also on regulators as well.
Presumably, DOD would be subject to
significant recordkeeping and reporting
burdens necessary to identify obsolete
munitions and document the
demilitarization process. Reclamation of
unserviceable munitions would for the
first time come under regulation. EPA
and the States would assume new
obligations in inspecting perhaps
thousands of storage units and ensuring
that regulatory storage times were not
exceeded. Fulfilling these obligations
would likely divert limited resources
from more pressing and demonstrable
environmental problems. Especially
given that the substantive requirements
on stored munitions would not change,
EPA questions whether this diversion of
resources is justified.
B. Range Management
I. Active Ranges
EPA has consistently taken the
position that the use of products for
their intended purpose does not
constitute waste management and is not
reached by RCRA. Thus, today's
proposal excludes military munitions
training and testing activities at firing
ranges from RCRA regulation on these
grounds..
One group of interested parties has
argued for an alternative approach at
active ranges. According to this group,
discharged munitions at military firing
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Federal Register / Vol. 60. No. 216 / Wednesday, November 8, 1995 / Proposed Rules
56487
ranges clearly meet the definition of
• solid waste under RCRA; while their
firing may or may not constitute
"disposal" of a product, they become
waste "as soon as they hit the
ground"—at this point they become
discarded material that has served its
useful purpose, that is no longer needed
by the military, and that will never be
retrieved for any useful purpose. These
commenters argued that EPA should use
its RCRA authority to tailor special
regulations for military firing ranges.
For example, DOD and the relevant
services might be required to track all
fired munitions, retrieve and properly
dispose of fired munitions at reasonable
intervals, and (where the munition is
irretrievable} manage the munitions in
place in a way that guarantees that off-
site migration of contaminants does not
occur.
In support of the need for RCRA
regulation, these commenters have
pointed to examples of environmental
damage or potential threats associated
with firing ranges. These include deaths
resulting from detonation of unexploded
ordnance at old ranges transferred to
non-military ownership; numerous
other cases of unexploded munitions or
discarded chemical munitions found on
non-military lands; threats to
endangered species and other ecosystem
damage from range activities; death of
thousands of waterfowl resulting from
consumption of residual white
phosphorus at an artillery impact range;
destruction of lands that are culturally
or religiously significant to Native
Americans; possible adverse health
effects related to air emissions from
military training exercises; soil and
groundwater at ranges contaminated
with heavy metals and possibly organic
toxics; and high heavy metal
concentrations in streambeds and fish
tissue in the area of firing ranges.
In developing this rulemaking, EPA
has not independently reviewed each of
these examples in detail, and it
recognizes that in many cases the extent
of damage has been the subject of
considerable disagreement.
Furthermore, it is often unclear whether
an acknowledged problem was caused
by weapons testing or training at ranges,
or by other activities (e.g'.. open
burning/open detonation of munitions,
other waste management activities, or
xveapons manufacture and processing).
At the same time, however, military
ranges have clearly been associated with
numerous environmental or safety
concerns.
Although it .recognizes these
concerns, EPA is not proposing in
today's rule to regulate military firing
range, activities under RCRA. EPA is
taking this approach for several reasons.
Above all, EPA questions whether
RCRA regulatory authority
appropriately extends to activities like
weapons testing or training exercises,
which involve the use of a product and
which are not "waste management" as
it has historically been understood.
Further, EPA questions whether the
RCRA regulatory apparatus is well
adapted to the regulation of weapons
testing or-training, especially given
RCRA's reliance on site-by-site
permitting and the existence of statutory
constructs such as the land disposal
restrictions and minimum technology.
requirements, which make no sense in
the context of range management.
DOD critics recognize the difficulties
of applying conventional RCRA
requirements (e.g., full RCRA permits)
• to every military firing range, and
instead suggest a "permit-by-rule"
approach. EPA has already issued
permits-by-rule for certain activities
involving hazardous waste; however,
this approach has been adopted only'in
cases where detailed EPA regulations
alreadv exist under other statutory
.- authorities implemented by EPA.'The
regulatory and legal difficulties of
implementing such an approach at
ranges are considerable. More
particularly, EPA questions the need for,
or (in some cases) the advisability, of
the specific regulations suggested by
DOD critics. A requirement that all fired
munitions be tracked would be
impracticable. It would also be largely
redundant with existing DOD
requirements. (DOD Directive 6055.9-
STD, Chapter 12, requires that
installations maintain permanent
records of "known and suspected"
ranges, including "contamination by
nomenclature, hazard, quantity, exact
locations, and dud rates.") Similarly, a
requirement that ranges be regularly
cleared for unexploded ordnance may
be practical in some circumstances, but
in others involve a significant safety
threat to military personnel. According
to DOD. the Air Force is able to require
routine clearance of bombing ranges,
where relatively limited.numbers of'
unexploded munitions will be found.
The Army, however, does not apply
similar requirements to artillerv ranges,
given the much larger number of
under RCRA—given the poor fit of the
statute. EPA recognizes that RCRA
would provide for independent
oversight and enforcement, an
important factor for DOD critics. It
questions, however, whether the costs of
this oversight (both to DOD and the
regulatory agencies) would be justified.
This is particularly the case since many
of the concerns addressed bv
commenters are already addressed
under other independent authorities
(e.g., DOD and the services must comply
with the Endangered Species Act;
CERCLA governs transfer of ranges (and
other military property) to non-Federal
ownership; and RCRA and CERCLA
remedial authorities are available for
conventional contamination resulting
from range activities), or under anv
circumstances would fall outside the
scope of RCRA (e.g., radioactive
materials).
2. Applicability of Range Cleanup
Authorities
unexploded rounds.
~^D
DOD and the Services already have
regulations governing range activities '
For example, the DDESB has issued
regulations requiring recordkeeping,
remediation, use restrictions, and
similar requirements. EPA believes that
the most appropriate approach to
regulating day-to-day range activities is
through these standards, rather than
• Proposed § 261.2(g)(4)(i) states that
munitions left in place are considered
solid waste for statutory purposes when
a range is closed, or when the property
is transferred from military control. In
practice, this requirement "would make
the munitions potentially subject to
section 7003 of RCRA in the case of an
imminent and substantial
endangerment, and to sections 3004(u)
and 3008(h) cleanup authorities if thfe
facility was otherwise subject to RCRA
permitting requirements. As discussed
earlier in this preamble, the proposal
also contains a sunset provision;
munitions left in place at closed or
transferred ranges would no longer be
subject to RCRA cleanup authorities
once DOD promulgates, pursuant to
DOD's own statutory authorities,
regulations governing cleanup of ranees
Some critics of DOD are likely to
argue that today's proposal does not go
far enough. Section 7003 is a
discretionary authority for EPA, and
sections 3004(u) and 3008(h) only apply
at RCRA treatment, storage, and
disposal facilities where releases have
been identified. Thus, according to
some commenters, these authorities may
not adequately address closing ranges It
has been suggested that EPA impose
"post-closure" requirements on all
closed military ranges where munitions •
or other contaminants are left in place.
These requirements might or might not
be imposed through a permit, and they
might include permanent access
restrictions, monitoring for off-site
releases, and other requirements.
EPA notes that'current statutory
restrictions on Federal property
transfers cover many of the problems
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56488
Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
that a post-closure requirement would
also address. For example, under
section 120(h)(3) of CERCLA, deeds
conveying contaminated real property
from the United States to non-Federal
ownership must contain a covenant that
all remedial action necessary to protect
human health and the environment has
been taken with respect to any
hazardous substances remaining at the
property. All remedial actions necessary
to protect human health and the
environment have been taken when EPA
determines that an approved remedy is
constructed and operating properly and
successfully. Therefore, current
statutory provisions already provide
considerable legal protection when a
former range is transferred to non-
Federal owners. The applicability of
these safeguards is less clear, however,
when a closed range on an installation
is put to other uses, or a range is
transferred from the Department of
Defense to another Federal agency. EPA
solicits comments on the need for "post-
closure" controls under RCRA to
address these situations where property
remains under Federal ownership.
Comments should address the legal
basis for such controls under RCRA;
their need, given current controls
(including current DOD regulations and
practices); the level of controls that
would be appropriate; and the
regulatory burden of such controls, both
on DOD and the regulatory agencies.
C. Alternative Organization (Separate
CFRPart)
EPA also sees the benefit of a uniform
nationwide system for managing waste
military munitions given DOD's
national defense mission, nationwide
presence, and logistical and operational
needs. A consistent set of standards for
waste military munitions will simplify
integration of these rules with the
DDESB and the Service requirements for
the management of all military
munitions (including waste munitions).
Indeed, EPA believes Congress' intent in
passing RCRA §3004(y) was to establish
a clearer, uniform national system for
regulating military munitions. To
support such clarity and consistency,
DOD has recommended that the
regulations for military munitions be
included in a separate part of the CFR,
which would identify the requirements
that apply to military munitions in one
single place. The new part as proposed
by DOD would still contain numerous
cross-references to other pertinent parts
and sections, and the military would
still have to comply with other parts for
their non-munitions hazardous waste.
EPA solicits comment on whether this
approach would be simpler to
implement, easier to enforce', or easier
for States to adopt. For an example of
how the alternative'approach might be
structured, commenters may refer to the
DOD proposal, which may be obtained
by contacting Mr. Ed Sims, U.S. Army
Environmental Center, Environmental
Compliance Division, Mail Code SFIM-
AEC-ECA, Building E4435, Aberdeen
Proving Ground, Maryland 21010-5401,
through the DOD Home Page on the
Internet at:
EWSDvIS@AECl.APGEA.ARMY.MIL, or
from the EPA docket for today's rule.
DOD recommends that the standards be
placed in 40 CFR part 269. However;
EPA believes that, if this approach is
adopted, it should be placed in a
separate subpart in 40 CFR part 266,
which addresses other special types of
waste and waste management facilities.
VI. State Authority
Under section 3006 of RCRA, EPA
may authorize States to administer and
enforce the RCRA hazardous waste
program.'(See 40 CFR part 271.) After
authorization, the authorized State
administers the program in lieu of the
Federal government, although EPA
retains enforcement authority under
sections 3008, 7003, and 3013 of RCRA.
New Federal requirements (such as
today's rule) do not apply until they-
have been adopted by the State and the
State's authorization has been revised to
incorporate the requirements.12
Under RCRA regulations, States must
adopt and become authorized for new
requirements within one to two years of
the rule's effective date, where the
requirements are more stringent or
broader than existing requirements.
Section 3009 of RCRA allows States to
impose .standards that are more
stringent than those in the Federal
program.
Today's proposal, however, raises an
issue regarding State authority because
Congress clearly expected EPA to
develop national standards for waste
munitions through'the RCRA
rulemaking process. Although today's
rule would lay out such national
standards, States under the standard
RCRA approach could enforce their own
more stringent standards under their
own State programs. This situation, at
. least in theory, could lead to just the
IJUnder section 3006(g) of RCRA, enacted as part
of the Hazardous and Solid Waste Amendments
(HSWA) of 1984. new requirements imposed by
HSWA take effect in authorized States at the same
time as they do in unauthorized States—as long as
the new requirements are more stringent than the
previous requirements. EPA implements these new
requirements until the State is authorized for them.
Since today's proposal is not issued under HSWA
authority, however, section 3006(g) does not come
into play.
sort of piecemeal approach that the
FFCA was intended to avoid. Therefore,
EPA is also considering, in addition to
the standard RCRA approach to state
authorization, an approach that would
prohibit States from enforcing broader
or more stringent requirements with
respect to military munitions. This
alternative approach would be specific •
to today's proposal and, because it
would be tied to the waiver of sovereign
immunity in RCRA, it would in any case
be limited to rules where the only
regulated entity was the Federal
government, m today's notice, EPA
solicits comment on whether this
alternative approach should be adopted
for military munitions, or whether the
standard RCRA approach should be
maintained.
As explained above, the standard
RCRA approach would allow States to
promulgate regulations that are broader
in scope or more stringent than Federal
requirements. And States would not be
required to adopt new regulations that
are less stringent or narrower than
regulations they already have in place.
The legal basis for this approach would
derive from section 3009, which allows
States to impose more stringent
hazardous waste standards.
Under the standard approach,
therefore, states would be required to
adopt those portions of today's rule that
are more stringent or broader in scope
than current requirements, but they
would not be required to adopt less
stringent requirements. Many of the
requirements in today's rule, in EPA's
view, are neither more nor less stringent
than current regulatory requirements
applicable to other materials. Therefore,1
it is EPA's view that under current
RCRA procedures, the adoption of these
regulatory provisions by States would
not be required, as long as the States
interpret their current regulations in a
manner that is no less stringent than
today's proposal. Similarly, States
would not be required to pick up those
portions of today's proposal if they are
promulgated in a final rule, that are less
stringent than existing requirements.
The less stringent portions of the rule
are: (1) the modified definition of "on-
site" (§ 260.10), (2) the exemption of
.emergency responses involving
explosives from RCRA transport
'requirements (§262.10(h)), and (3) the
RCRA manifest exemption for the off-
site shipment of stockpiled munitions
waste from one DOD installation to
another.
Although states would not be required
to adopt less stringent requirements
under this approach, EPA strongly urges
States to:adopt all aspects of today's
rule, when it is finalized, to ensure clear
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Federal Register /
guidelines for handlers of waste military
munitions, State regulators, and the
public. EPA.believes that, although
States under the standard approach can
be more stringent, Congress intended for
the rule to establish a uniform and
consistent program for the management
of waste military munitions. Therefore,
States should adopt these regulations as
quickly as their legislative and
regulatory processes will allow.
In two respects, today's proposed rule
is more stringent than, current
requirements: (1) The requirement that
military installations retrieve munitions
fired off-range (§ 261.2(g}(4)(ii)), and (2)
the requirement that military personnel
responding to immediate threats
involving military munitions maintain
records of the response
(§§264.1(g)(8)(iv), 265.1(c)(ll)(iv), and
270.1(c)(3)(iii)). If these proposed
requirements are promulgated in a final
rule, authorized States must adopt these
requirements as part of their State
programs and apply to EPA for approval
of their program revisions. Section
270.21(e)(2) sets out the deadline for
State program modifications; § 271.21
identifies the procedures for revision of
State programs.
The above approach is consistent with
the basic principles of Federal-State
relationships under RCRA. EPA is
committed to a partnership role with the
States and recognizes that States should
be the primary implementers of the
hazardous waste program. Furthermore,
it has been axiomatic under RCRA that
States run their program under their
own State laws, and that, while EPA
sets national minimum standards, States
may choose to be more stringent. At the
same time, EPA recognizes DOD's very
real need for national consistency in
managing waste munitions, given DOD's'
national defense mission, nation-wide
presence, and logistical and operational
needs. Therefore, as discussed above,
EPA is considering an alternative
approach, under this rule, that ensures
national standards by precluding States
from enforcing more stringent
requirements on waste military
munitions.
This approach would characterize
EPA's requirements as more stringent
than the current requirements because
they are new standards with respect to
the identification of when munitions
become waste.and as to the storage and
transportation standards for that waste.
Under this alternative these regulations,
when final, would not apply in an
authorized State until such time as a
State has revised its authorized program
to incorporate these requirements and
such revisions have been approved by
EPA in accordance with 40 CFR Part
216 / Wednesday, November 8, 1995 I Proposed Rules
56489
271. Additionally, this approach would
interpret the waiver of sovereign
immunity in section 6001 of RCRA to
prohibit broader or more stringent State
requirements as applied to military
munitions than those requirements
adopted in a final rule under section
3004(y).
The approach would be supported by
policy and legal arguments that the
generally available authority of the
States to promulgate more stringent
rules than those issued by EPA under
RCRA is not present in the case of rules
regulating military munitions. It could
be argued that Congress in the FFCA
intended that EPA, in consultation with
DOD, the States, and interested parties,
develop national regulations that
reflected the views of all and that settled
both the jurisdictional and the technical
issues at one time.
The argument that the scope of the
waiver of sovereign immunity does not
permit a State to impose more stringent
requirements than those contained in
Federal regulation depends on the
language of RCRA 6001. This section
provides that Federal agencies "shall be
subject to, and comply with, all Federal,
State, interstate, and local requirements
* * * respecting control and abatement
of solid waste or hazardous waste
disposal and management in the same
manner, and to the same extent, as any
person is subject to under such
requirements." (42 U.S.C. 6961) EPA
used similar language in section 118 of
the Clean Air Act, in its General
Conformity Rule (40 CFR Part 51) to
preclude States from applying more
stringent requirements on federally-
assisted facilities. In the case of today's
rule, it would be argued that, because
military munitions are items unique to
the military, more stringent state
regulation would, by definition, apply
only to the military and thus be
discriminatory and outside the scope of
the RCRA waiver of sovereign immunity
in section 8001.
EPA will carefully consider both
approaches and their policy and legal
interpretations. Interested parties,
including both DOD and the States, are
asked to comment on the approaches
and to address such issues as the
potential for discrimination against the
Federal government; the extent to which
the military munitions rule would or
could apply to non-Federal entities or to
entities whose costs of compliance
would not ultimately be borne'by the
Federal government; the policy
considerations raised by the dangers of
military munitions and the operational
needs of the Military Services; and the
practical implementation issues that
both approaches would raise.
Vn. Administrative Requirements/
Compliance With Executive Order
A. Regulatory Impact Analysis Under •
Executive Order 12866
Under Executive Order No. 12866 (58
FR 51735 (October 4,1993)), the Agency
must determine whether-the regulatory
action is "significant" and therefore
subject to review by the Office of
Management and Budget (OMB) and to
the requirements of the Executive Order,
which include assessing the costs and
benefits anticipated as a result of the
proposed regulatory action. The Order
defines "significant regulatory action"
as one that is likely to result in a rule
that may: (1) have an annual effect on
the economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) create serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the'
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
EPA has determined that today's
proposal is a significant rule under
Executive Order 12866 due to the novel
policy issues raised. EPA estimates that
today's rule results in national annual
incremental costs of $190,000 per year.
This represents a savings over baseline
costs of approximately $1,400,000 to
over $2,500,000 per year. For more
information on the costs impacts of
today's proposal and of some alternative
approaches, see the Economic Impact
Analysis of the Proposed Munitions
Rule, in EPA Docket #* * *
1- Cost Analysis
Today's rule focuses on several
significant issues: (i) identification of
munitions as waste; (2) transportation of
munitions identified as wastes; (3)
•emergency response actions; (4) storage
standards for waste munitions; and (5)
maintenance and closure of military
ranges. Some management approaches
to some of these issues may result in
significant costs to the U.S. Department
of Defense. However, EPA has estimated
that the proposed rule, which would
relax requirements from the assumed
full subtitle C regulations, would not
result overall in additional financial
burden to the Department of Defense or
any military installation. In many
instances, EPA has concluded that
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56490 Federal Regfeter / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
current Department of Defense
standards meet RCRA standards and
imposition of RCRA standards would
result in regulations that are redundant.
Over the next ten years, EPA
estimates that the proposed regulation
will result in annual costs of
approximately 5190,000 per year to the
Department of Defense. The most
significant costs would be related to the
need for permit modifications for
treatment and disposal facilities
receiving off-site wastes. However,
today's proposal results in avoided costs
on the order of Sl.400,000 to $2,500,000
per year over baseline. Baseline is based
on DOD's current operations.
The principal sources of annual
savings include avoided costs for new
permits, contingency plans, manifests,
and retrofitted storage units. These
avoided costs may be more significant
when compared with other regulatory
alternatives considered by EPA. For
example, analysis of costs for several
alternatives suggests that incremental
costs for full'Subtitle C requirements
and active range management may •
exceed S410.000.000 per year. Other
alternatives may exceed 5430,000,000
per year. The cost analysis for the
proposed rule and alternatives is
presented in the technical background
document, Economic Impact Analysis of
the Proposed Munitions Rule'. These
higher costs result primarily from the
costs for active range management.
EPA did not develop specific costs for
range closure and clean up (e.g., prior to
property transfer) under RCRA 7003,
3004 (u) or (v), 3008(h), CERCLA, the
Defense Environmental Restoration
Program, or Base Realignment and
Closure. Such costs are site-specific, and
in general, the Agency assumed that
these costs would be similar under each
authority or program, and thus, there
would be no incremental costs under
today's proposal. EPA requests that
commenters submit additional
information relevant to the cost for
clean-up of closed ranges under each of
these authorities.
2. Benefits Analysis
EPA is proposing that stockpiled
munitions generally do not become
hazardous waste subject to regulation
until they are removed from storage for
transportation to a disposal unit. This
proposal recognizes that current DOD •
storage regulations have been successful
in protecting human health and the
environment, and that additional
requirements would be redundant. (See
section IV.B.l.f of today's proposed
rule). EPA also has proposed to exempt
^munitions
[other
requirements when transported because
DOD standards provide comparable
protection. The benefit of this proposed
option is the annual cost savings of
approximately 51,400,000 to over
52,500,000, due to avoided retrofits,
permits, contingency plans, and
manifest costs.
One exception to the above proposed
definition is for munitions that are
"deteriorated or damaged (e.g. leaks,
broken seals) to the point that they
cannot be put into serviceable
condition, and cannot reasonably be
recycled or used for other purposes."
Such munitions would be designated as
regulatory solid waste under the
proposed regulation. The benefit of
regulating deteriorated or damaged
munitions as a solid waste under RCRA
would be the assurance that such
munitions would be stored and
transported in a safe manner and
destroyed as soon as safely feasible, thus
limiting the potential exposure of
humans or the environment to
hazardous substances. •
The use of munitions for their
intended purpose (i.e. discharged at a
firing range) is not considered "waste
management" for the purposes of RCRA.
However, under today's proposal, used
or fired munitions left in the
environment become "discarded" in a
RCRA statutory sense, and therefore are
subject to RCRA statutory authorities,
including RCRA sections 7003, 3004 (u)
.and (v), and 3008(h).
The benefits of considering used or
fired munitions as "discarded" at the
point of property transfer or discharge
off-installation range are especially clear
in the case of unexploded ordnance
(UXO). Military personnel are trained in
handling explosive munitions, and
military installations have security
precautions to prevent civilian exposure
to explosive devices. Once property
containing UXO leaves military control,
however, there is no assurance that the
same measure of protection would be
maintained, even if it is transferred to
another Federal Agency.
The Department of Defense
Explosives Safety Board Accident
Database reports that since 1943, there
have been a total of 30 non-operational
accidents from military unexploded
ordnance, resulting in seventy-seven
injuries and twenty-six fatalities. In
many cases, these accidents occurred
after property transfer. As more and
more bases undergo closure, the
potential for accidents from abandoned
unexploded ordnance will increase. By
including used or fired munitions
which leave military control in the
statutory definition of "solid waste,"
EPA and authorized States will be able
to provide independent oversight of
property transfers involving former
ranges.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980 requires Federal agencies to
consider "small entities" throughout the
regulatory process. Section 603 of the
RFA requires an initial screening
analysis to be performed to determine
whether small entities will be adversely
affected by the regulation. If affected
small entities are identified, regulatory
alternatives must be considered to
mitigate the potential impacts. Small
entities as described in the Act are only
those "businesses, organizations and
governmental jurisdictions subject to
regulation."
EPA has determined that today's
proposal will primarily affect Federal
Agencies, such as the Department of
Defense, and therefore few, if any, small
entities will be affected. Furthermore,
since today's proposal generally
provides savings over current
requirements, EPA believes that any
small entities engaged inactivity
covered by the rule will not be
adversely affected. However, the
Department of Defense has raised the
issue that these regulations may
adversely impact businesses doing
munitions management activities for the
Department of Defense, the Department
• of Energy, the Coast Guard, and the
National Guard. EPA requests that
commenters submit additional
information related to the types of
businesses that may be impacted, the
number of small businesses that would
be affected, and the extent of adverse
impacts to these businesses,
C. Paperwork Reduction Act
The Paperwork Reduction Act of
1980, 44 USC 3501 et seq., authorizes
the Director of OMB to review certain
information collection requests by
Federal agencies. EPA has determined
that the recordkeeping and reporting
requirements of this proposed rule do '
not constitute a "collection of.
information" as defined in 44 USC
3502(4) because they apply to Federal
entities (i.e. DOD, DOE, Coast Guard,
and National Guard), or for those
sections that apply to non-Federal
entities (e.g. emergency responses) they
do not impose new recordkeeping or
reporting requirements.
Comments regarding this
determination may be sent to Ken
Shuster (RE: ICR Determination), EPA
(Mail Code 5303W), 401 M St, SW,
Washington, D.C. 20460.
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Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules 56491
D. Unfunded Mandates.
Title E of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 104-
4, establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on State, local, and
tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. When a written
statement is needed for an EPA rule,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective, or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, giving them
meaningful and timely input in the
development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising them
on compliance with the regulatory
requirements.
EPA has determined that this rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
tribal governments, in the aggregate, or
the private sector in any one year. EPA
has estimated that the total potential
cost to State, local, and tribal
governments would not exceed
approximately $190,000'per year over
ten years or $1,300,000 in any one year.
Thus, today's rule is not subject to the
requirements of sections 202 and 205 of
the UMRA.
VIII. References/Docket
The regulatory docket for this
proposal contains a number of
background materials. To obtain a list of
these items, contact the RCRA Docket at
202—260-9327 and ask for the list of
references in Docket #F—94—MMP—
FFFFF.
List of Subjects
.40 CFR Part 260 'J :>
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 261
Hazardous waste, Recycling,
Reporting and recordkeeping
requirements.
40 CFR Part 262
Emergency responses, Exports,
Hazardous materials transportation,
Hazardous waste, Imports, Labeling,
Packaging and containers, Reporting
and recordkeeping requirements.
40 CFR Part 263
Emergency responses, Hazardous
materials transportation, Hazardous
waste, Reporting and recordkeeping
requirements.
40 CFR Part 264 .
Air pollution control. Emergency
responses, Hazardous waste, Insurance,
Storage containers, Reporting and
recordkeeping requirements. Security
measures, Surety bonds, Treatment and
disposal.
40 CFR Part 265
Air pollution control, Emergency
responses. Hazardous waste, Insurance,
Storage containers, Reporting and
.recordkeeping requirements, Security
measures, Surety bonds, Treatment and
disposal.
40 CFR Part 270
Administrative practice and
procedure, Confidential business
information, Emergency responses,
Hazardous materials transportation,
Hazardous waste, Permit application
requirements, Permit modifications,
Reporting and recordkeeping
requirements.
Dated: October 31,1995.
Carol M. Browner,
Administrator.
For the reasons set forth in the
preamble, 40 CFR Parts 260, 261, 262,
263, 264, 265, and 270 are proposed to
be amended as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260
continues to read as follows:
Authority: 42 U.S.C.-6905,6912Ca), 6921
through 6927, 6930, 6934, 6935,6937
through 6939,and 6974.
2. Section 260.10 is amended by
revising the definition of "on-site" and
by adding the following definitions, in
alphabetical order, to read as follows:
• §260.10 Definitions;
1 * * * * *
Explosives or munitions emergency
response expert means Department of
Defense (DOD) emergency explosive
. ordnance disposal (EOD) or technical
escort unit (TEU) personnel; DOD-
certified civilian contractor personnel;
or other trained Federal, State, local, or •
civilian chemical or conventional
munitions or explosives handling,
render-safe, destruction, and response
experts.
Explosives or munitions emergency
means a situation involving the
suspecte'd or detected presence of
unexploded explosive ordnance (UXO),
damaged explosive ordnance, an
improvised explosive device (IED),
other potentially explosive material or
device, or other potentially harming
military chemical warfare material or
device, that creates an imminent threat
to human health, including safety, or
the environment, including property, as
determined by an emergency response
expert, and calls for immediate action
by the emergency response expert to
eliminate the threat.
.Explosives or munitions emergency
response means all immediate response
activities by emergency response
experts to eliminate an emergency threat
by treating or destroying the ordnance
in place or rendering the ordnance safe
and/or removing it to another location
for treatment or destruction. An
emergency response includes
transportation and treatment to the
extent necessary to abate the immediate
threat. Emergencies and expert
responses can occur in the public sector
or on Federal installations.
*****
Military munitions means all
ammunition products and components
produced or used by or for the U.S.
Department of Defense or the U.S.
Armed Services for national defense and
security, including military munitions
under the control of the Department of
Defense, the U.S. Coast Guard, the U.S.
Department of Energy, and National
Guard personnel. Military munitions
include: gaseous, liquid, and solid
propellants, explosives, pyrotechnics,
chemical and riot control agents,
smokes, and incendiaries used by DOD
components, including bulk explosives
and chemical warfare agents, chemical
munitions, rockets, guided and ballistic
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56492 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
missiles, bombs, warheads, mortar,
artillery, small arms ammunition,
grenades, mines, torpedoes, depth
charges, cluster munitions and
dispensers, demolition charges, and
devices and components thereof.
Military munitions do not include
wholly inert items, improvised
explosive devices, and nuclear
weapons, devices, and components
thereof managed under DOE's nuclear
weapons program.
Military range means designated air,
land, and water areas set aside,
managed, and used to test and evaluate
military explosives, other ordnance, and
weapon systems, and to train personnel
in their use and handling. Ranges
include firing lines and positions, firing
lanes, impact areas, and buffer zones
with restricted access and exclusionary
areas.
On-slte means the same or
geographically contiguous property
which may be divided by public or
private right-of-way, provided the
entrance and exit between the
properties is at a cross-roads
intersection, and access is by crossing as
opposed to going along, the right-of-
way. "On-site" also includes contiguous
property comprised of an individual
generation site and/or facility under the
control of the same person, regardless of
whether it is divided by a public or
private right-of-way and whether access
is by crossing, as opposed to going
along, the right-of-way. Non-contiguous
properties owned by the same person
but connected by a right-of-way which
the owner controls and to which the
public does not have access is also
considered "on-site" property.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261
is revised to read as follows:
Authority: 42 U.S.C. 6905, 6912(a). 6921,
6922.6924(y), and 6938.
2. Section 261.2 is amended by
revising paragraph (a)(2) introductory
text and adding a new paragraph (g) to
read as follows: '
§261.2 Definition of solid waste.
(a) «• • -
(2) Except for military munitions
addressed in §261.2(g), a discarded
material is any material which is:
*****
(g) Military munitions. (1) Unused
military munitions are discarded
material and therefore a solid waste
when any of the following occurs:
(i) The munition is abandoned by
being disposed of, burned, or
incinerated, or treated prior to .disposal,
or
{ii) The munition is removed from
storage in a military magazine or other
storage area'for the purpose of being
disposed of, burned, or incinerated, or
treated prior to disposal, or
(iii) The munition is deteriorated or
damaged (e.g., the integrity of the round
is comprornised by cracks, leaks, or
other damage) to the point that it cannot
be put into serviceable condition, and
cannot reasonably be recycled or used
for other purposes, or
(iv) The munition has been declared
a solid waste by an authorized military
official.
(2) Used or fired military munitions
are solid wastes if they meet the
definition of discarded material in
§ 261.2(a)(2), unless they are excluded
by paragraphs (a)(l) or (g)(3) of this
section.
(3) Use of military munitions for their
intended purpose does not constitute '
discard and is not subject to regulation
under parts 260 through 271 of this
chapter. "Use for intended purpose"
includes:
(i) Use in training of troops and of
explosives and munitions emergency .w.
response experts (including training in
proper destruction of excess unused
propellant or other munitions during
training exercises),
(ii) Use in research, development,
testing, and evaluation of military
munitions, weapons, or weapon
systems, and
(iii) Recovery, collection, and on-
range destruction of unexploded
ordnance and contaminants during
range clearance operations at active,
inactive* or closing ranges.
(4) Military munitions at ranges.
Munitions discharged during military
activities at ranges are discarded
material (and therefore solid waste) for
purposes of § 1004(27) of RCRA under
the following circumstances:
(i)(A) The munition is left in place at
the firing range at the time the range is
closed or when the range is transferred
from military control, whichever occurs
first, except that,
(B) Upon the issuance of DOD
regulations that govern the cleanup of
munitions .on closed or transferred
ranges and that provide for State and
public participation in the cleanup
decisionmaking process at specific sites,
these DOD regulations shall supersede
all RCRA authority over military
munitions at closed and transferred
military ranges.
(ii) The munition lands off-range and
it is not promptly rendered safe (if
necessary) and retrieved. To the extent
feasible, 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).
, (5) Military munitions that have not
been discharged, including
subcomponents thereof, do not become
a solid waste when they are being
repaired, reused, recycled, reclaimed,
disassembled, reconfigured, or
otherwise subjected to materials
recovery activities.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
1. The authority citation for Part 262
continues to read as follows:
Authority: 42 U.S.C. 6906, 6912(a), 6922
through 6925, 6937, and 6938, unless
otherwise noted.
2. Section 262.10 is amended by
adding, before the notes, new
paragraphs (h) and (i) to read as follows:
§ 262.10 Purpose, scope, and applicability.
*****
(h) Persons responding to an
explosives or munitions emergency in
accordance with sections
264.1(g)(8)(i)(D) or (iv) or
265.1(c)(ll)(i)(D) or (iv), and
270.1(c)(3)(i)(D) or (iii) are not required
to comply with the standards of this
part.
(i) A generator of military munitions
that become solid wastes under 40 CFR
261.2(g)(l)(ii through iv) is exempt from
subpart B and §§ 262.32(b), 262.40(a),
and 262.42 of this part when the
munition is shipped under Department
of Defense shipping controls (including
at a minimum: Government Bill of
Lading (GBL) (GSA Standard Form
1109) and associated Special
Instructions and Notes (SIN) and
Routing Instructions and Notes (RIN)—
a series of files within an automated
information base used in preparing the
GBL continuation sheets, requisition
tracking form DD Form 1348, the
Signature and Talley Record (DD Form
1907), Special Instructions for Motor
Vehicle Drivers (DD Form 836),,and the
Motor Vehicle Inspection Report (DD
Form 626) from a federally-owned or
operated installation to a DOD-owned or
operated treatment, storage, or disposal
facility, except that the Federal agency
must report to the EPA Regional •
Administrator any waste that was not
received by the receiving facility within
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Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules 56493
45 days of the day the waste was
shipped.
PART 263—STANDARDS APPLICABLE
TO TRANSPORTERS OF HAZARDOUS
WASTE
1. The authority citation for Part 263
continues to read as follows:
Authority: 42 U.S.C. 6912(a), and 6922
through 6925.
2. Section 263.10 is amended by
redesignating paragraph (c) as (e), and
adding new paragraphs (c) and (d) to
read as follows:
§263.10 Scope.
* * * * *
(c) The regulations in this part do not
apply to transportation during an
explosives or munitions emergency
response, conducted in accordance with
§§264.1(g)(8)(i)(D) or (iv) or
265.1(c)(ll)(i)(D) or (iv), and
270.1(c)(3)(i)(D) or (iii).
(d) The regulations in this part do not
apply to the transportation of military
munitions that become solid wastes
under 40 CFR 261.2{g) (l)(ii through iv)
when shipped under Department of
Defense shipping controls (including at
a minimum: Government Bill of Lading
(GBL) (GSA Standard Form 1109) and
associated Special Instructions and
Notes (SIN) and Routing Instructions
and Notes (RIN)—a series of files within
an automated information base used in
preparing the GBL continuation sheets,
•requisition tracking form DD Form 1348,
the Signature and Talley Record (DD
Form 1907), Special Instructions for
Motor Vehicle Drivers (DD Form 836),
and the Motor Vehicle Inspection
Report (DD Form 626) from a DOD-
owned or operated installation to a
DOD-owned or operated treatment,
storage, or disposal facility.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
1. The authority citation for Part 264
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924,
and 6925.
2. Section 264.1 is amended by
adding new paragraphs (g)(8)(i)(D) and
(g)8)(iv) to read as follows:
§ 264.1 Purpose, scope and applicability.
(g) * * * .
•(8)* * *
(D) An immediate threat to human
health, public safety, property, or the
environment, from the known or
suspected presence of military •
munitions, other explosive material, or
an explosive device. •
*****
(iv) In the case of an explosives or
munitions emergency response, if a
Federal, State, or local official acting
within the scope of his or her official
responsibilities, or if an explosives or
munitions emergency response expert
determines that immediate removal of
the material or waste is necessary to
protect human health or the
environment, that official or expert may
authorize the removal of the material or
waste by transporters who do not have
EPA identification numbers and without
the preparation of a manifest. In the case
of emergencies involving military
munitions, the responding military
emergency response expert's unit must
retain records for three years identifying
the dates of the response, the
responsible persons responding, the
type and description of material
addressed, and its disposition.
******
3. Section 264.70 is revised to read as
follows:
§264.70 Applicability.
The regulations in this subpart apply
to owners and operators of both on-site
and off-site facilities, except as § 264.1
provides otherwise. Sections 264.71,
264.72, and 264.76 do not apply to
owners and operators of on-site facilities
that do not receive any hazardous waste
from off-site sources, and to owners and
operators of off-site facilities with
respect to waste military munitions
exempted from manifest requirements
under §26.3.10(d). Section 264.73{b)
only applies to permittees who treat,
store, or dispose of hazardous wastes
on-site where such wastes were
generated.
4. Part 2.64 is amended by adding new
subpart EE, consisting of §§ 264.1200
through 264.1202, to read as follows:
Subpart HE—Military Hazardous Waste
Munitions Storage
§264.1200 Applicability.
The requirements of this subpart
apply to owners or operators who store
military wastes and munitions classified
as hazardous wastes in military
magazines, except as § 264.1 provides
otherwise. (NOTE: Depending on
explosive hazards, military hazardous
waste munitions may also be managed
in other types of storage units, including
containment buildings (40 CFR part 264,
subpart DD), tanks (40 CFR part 264,
subpart J), or containers (40 CFR part
264, subpart I)).
§ 264.1201 Design and operating
standards.
(a) Hazardous waste munitions.
storage units must be designed and
operated, with containment systems,
controls, and monitoring, that:
(1) Minimize the potential for
detonation or other means of release of
hazardous waste, hazardous
constituents, hazardous decomposition
products, or'contaminated run-off, to
the soil, ground water, surface water, or
atmosphere;
(2) Provide a primary barrier, which
may be a container (including a shell) or
tank, designed to contain the hazardous
waste;
(3) For non-liquid wastes stored •
outdoors, provide that the waste will
not be in standing precipitation;
! (4) For liquid wastes, provide a
secondary containment system that
assures that any released liquids or
precipitation are promptly detected and
removed from the waste area; and
(5) Provide monitoring and inspection
procedures that assure the controls and '
containment systems are working as
designed and that releases that may
adversely impact human health or the
environment are not escaping from the
unit..
(b) Military hazardous waste
munitions stored under this subpart
may be stored in one of the following:
(1) Earth-covered magazines. Earth-
' covered magazines must be:
(i) Constructed of waterproofed,
reinforced concrete or structural steel
arches, with steel doors that are kept
closed when not being accessed;
(ii) Designed and constructed:
(A).to be of sufficient strength and
thickness to support the weight of any
munitions stored and any equipment
used in the unit;
(B) to provide working space for
personnel and equipment in the unit;
and
(C) to withstand movement activities
that occur hi the unit.
(iii) Designed with walls and earthen
covers that direct an explosion in the
unit in a safe direction to prevent
. propagation of the explosion to adjacent
units.
(2) Above-ground magazines. Above-
ground magazines must be designed to
disintegrate rather than blow apart into
fragments.
(3) Outdoor or open .storage areas.
(c) Hazardous waste munition units
must be adequately designed and
spaced to prevent propagation from one
storage unit to another in the event of
detonation.
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56494 Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / Proposed Rules
as hazardous wastes in military
magazines, except as § 265.1 provides
otherwise. (NOTE: Depending on
explosive hazards, military hazardous
waste munitions may also be managed
in other types of storage units, including
containment buildings (40 CFR part 265,
subpart DD), tanks (40 CFR part 265,
subpart J), or containers (40 CFR part
265, subpart I)).
(d) Hazardous waste munitions must
be stored in accordance with a Standard
Operating Procedure specifying
procedures to ensure safety, security,
and environmental protection. These
procedures would supersede the
security and inspection requirements of
40 CFR 264.14, the preparedness and
prevention procedures of 40 CFR part
264, subpart C, and the contingency
plan and emergency procedures
requirements of 40 CFR part 264,
subpart D.
(e) Hazardous waste munitions must
be packaged to ensure safety in handling
andstorage.
(f) Hazardous waste munitions must
be inventoried at least annually.
(g) Inspection and monitoring as
necessary to ensure stability and no
migration of contaminants out of the
magazine. At waste chemical munitions
storage units, the preferred method for
detection of leakers is the use of remote
sensing equipment.
§ 264.1202 Closure and post-closure care.
(a) At closure of a military magazine
which stored hazardous waste under
this subpart, the owner or operator must
remove or decontaminate all waste
residues, contaminated containment
system components, contaminated
subsoils, and structures and equipment
contaminated with waste, and manage
them as hazardous waste unless
§261.3(d) of this chapter applies. The
closure plan, closure activities, cost
estimates for closure, and financial
responsibility for military magazines
must meet all of the requirements
specified in subparts G and H of this
part, except that the owner or operator
may defer closure of the unit as long as
it remains in service as a munitions
magazine.
(b) If, after removing or
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils,
structures, and equipment as required in
paragraph (a) of this section, the owner
or operator finds that not all
contaminated subsoils can be
gracticably removed or decontaminated,
e or she must close the facility and
perform post-closure care in accordance
with the closure and post-closure
requirements that apply to landfills
(§264.310).
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
1. The authority citation for Part 265
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), 6924,
6925,6935,. and 6936, unless otherwise
noted.
• 2. Section 265.1 is amended by
adding new paragraphs (c)(ll)(i)(D) and
(c)(ll)(iv) to read as follows:
§265.1 Purpose, scope, and applicability.
*****
(c) * * *
(11)* * *
(i)* * *
(D) An immediate threat to human
health, public safety, property, or the
environment, from the known or
suspected presence of military
munitions, other explosive material, or
an explosive device.
* • * * * *
(iv) In the case of an explosives or
munitions emergency response, if a
Federal, State, or local official acting
within the scope of his or her official
responsibilities, or if an explosives or .
munitions emergency response expert
determines that immediate removal of
the material or waste is necessary to
protect human health or the
environment, that official or expert may
authorize the removal of the material or
waste by transporters who do not have
EPA identification numbers and without
the preparation of a manifest. In the case
of emergencies involving military
munitions, the responding emergency
response expert's unit must retain
records for three years identifying the .
dates of the response, the responsible
persons responding, the type and
'description of material addressed, and
its disposition.
3. Section 265.70 is revised to read as
follows:
§265.70 Applicability.
The regulations in this subpart apply
to owners and operators of both on-site
and off-site facilities, except as § 265.1
provides otherwise. Sections 265.71,
265.72, and 265.76 do not apply to
owners and operators of on-site facilities
that do not receive any hazardous waste
from off-site sources, and to owners and
operators of off-site facilities with
respect to waste military munitions
exempted from manifest requirements
under §263.10(d).
4. Part 265 is amended by adding new
subpart EE, consisting of §§265.1200
through 265.1202, to read as follows:
Subpart EE—Military Hazardous Waste
Munitions Storage
§265.1200 Applicability.
' The requirements of this subpart
apply to owners or operators who store
military wastes and munitions classified
§ 265.1201 Design and operating
standards.
(a) Hazardous waste munitions
storage units must be designed and
operated, with containment systems,
controls, and monitoring, that:
(1) Minimize the potential for
detonation or other means of release of
hazardous waste, hazardous
constituents, hazardous decomposition
products, or contaminated run-off, to
the soil, ground water, surface water, or
atmosphere;
(2) Provide a primary barrier, which
may be a container (including a shell) or
tank, designed to contain the hazardous
waste;
(3) For non-liquid wastes stored
outdoors, provide that the waste will
not be in standing precipitation;
(4) For liquid wastes, provide a
secondary containment system that
assures that any released liquids or
precipitation are promptly detected and
removed from the waste area; and •
(5) Provide monitoring and inspection
procedures thatassure the controls and
containment systems are working as
designed and that releases that may .
adversely impact human health or the
environment are not escaping from the
unit.
(b) Military hazardous waste
munitions stored under this subpart
may be stored in one of the following:
(1) Earth-covered magazines. Earth-
covered magazines must be:
(i) Constructed of waterproofed,
reinforced concrete or structural steel
arches, with steel doors that are kept .
closed when not being accessed;
(ii) Designed and constructed:
(A) to be of sufficient strength and
thickness to support the weight of any
munitions stored and any equipment
used in the unit;
(B) to provide working space for
personnel and equipment in the unit;
and •
(C) to withstand movement activities
that occur in the unit.
(iii) Designed with walls and earthen
covers that direct an explosion in the
unit in a safe direction to prevent
propagation of the explosion to adjacent
units.
(2) Above-ground magazines. Above-
ground magazines must be designed to
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Federal Register / VoL 60, No. 216 / Wednesday, November 8,. 1995 / Proposed Rules 56495
disintegrate rather than blow apart into
fragments.
(3) Outdoor or open storage areas (for
munitions that do not pose a significant
potential for explosion).
(c) Hazardous waste munition units
must be adequately designed and
spaced to prevent propagation from one
storage unit to another in the event of
detonation.
(d) Hazardous waste munitions must
be stored in accordance with a Standard
Operating Procedure specifying •
procedures to ensure safety, security,
and environmental protection. These
procedures would supersede the
security and inspection requirements of
40 CFR 265.14, tiie preparedness and-
prevention procedures of 40 CFR part
265 Subpart C, and the contingency
plan and emergency procedures
requirements of 40 CFR part 265,
'subpart D.
(e) Hazardous waste munitions must
be packaged to ensure safety in handling
and storage.
(f) Hazardous waste munitions must
be inventoried at least annually.
(g) Inspection and monitoring as
necessary to ensure stability and no
migration of contaminants out of the
magazine. At waste chemical munitions
storage units, the preferred method for
detection of leakers is the use of remote
sensing equipment.
§265.1202 CJosure and post-closure care.
(a) At closure of a military magazine
which stored hazardous waste under
this subpart, the owner or operator must
remove or decontaminate all waste
residues, contaminated containment
system components, contaminated
subsoils, and structures and equipment
contaminated with waste, and manage
them as-hazardous waste unless
§ 261.3(d) of this chapter applies. The
closure plan, closure activities, cost
estimates for closure, and financial
responsibility for military magazines '
must meet all of the requirements
specified, in subparts G and H of this
part, except that the owner or operator
may defer closure of the unit as long as
it remains in. service as a munitions
magazine.
(b) If, after removing or >
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils,
structures, and equipment as required in
paragraph (a) of this section, the owner
or operator finds that not all
contaminated subsoils can be
practicably removed or decontaminated,
he or she must close the facility and
perform post-closure care in accordance
with the closure and post-closure
requirements that apply to landfills
(§264.310).
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
1. The authority citation for Part 270
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912,6924,
6925,6927,6939, and 6974.
2. Section 270.1 is amended by
adding new paragraphs (c)(3)(i)(D) and
(c)(3)(iii) to read as follows:
§ 270.1 Purpose and scope of these
regulations.
* ' * * * *
(c). * ,
(3) „ * *
(i)* * *
(D) An immediate threat to human
health, public safety, property, or the
environment from the known or
suspected presence of military
munitions, other explosive material, or
an explosive device.
*****
(iii) In the case of immediate
responses involving military munitions,
the responding military emergency
response expert's unit must retain
records for three years identifying the
dates of the response, the responsible
persons responding, the type and'
description of material addressed, and
its disposition.
* * * * *
3. Section 270.42 is amended by
redesignating paragraph (h} as (i) and
adding a new paragraph (h) to read as
follows:
§ 270.42 Permit modification at the request
of the permittee.
*****
(h) Military hazardous waste
munitions treatment and disposal. (1)
The permittee is authorized to continue
to accept military munitions designated
as hazardous wastes under §.261.2(g) of
this chapter, notwithstanding any
permit conditions barring the permittee
from accepting off-site wastes, if:
(i) The facility was in existence as a
hazardous waste facility on the date
when the waste munition became
subject to hazardous waste regulatory
requirements;
(ii) On or before the date when the
waste munition becomes subject to
hazardous waste regulatory
requirements, the permittee submits a
Class 1 modification request to remove
or amend the permit provision
restricting the receipt of off-site waste
munitions; and
(iii) The permittee submits a complete
Class 2 modification request within 180
days of the date when the waste
munition became subject to hazardous
waste regulatory requirements.
(2) Within .the 180-day period for
submission of the Class 2 modification
request, the facility may request the
permitting agency to extend the 180
days for a specified period. If the
.permitting agency does not respond to
the extension request within 30 days,
the permittee is automatically granted
the extension.
[FR Doc. 95-27434 Filed 11-7-95: '8:45 am]
BILLING CODE 65SO-SO-P
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