Wednesday
February 12, 1997
               530297001
Part  II



Environmental

Protection Agency

40 CFR Part 260, et al.
Military Munitions Rule: Hazardous Waste
Identification and Management;
Explosives Emergencies; Manifest
Exemption for Transport of Hazardous
Waste  on Right-of-Ways on Contiguous
Properties; Final Rule
                             6621

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 6622   Federal Register / Vol. 62. No. 297 Wednesday,  February  12.  1997  /  Rules and Regulations
 ENVIRONMENTAL PROTECTION
 AGENCY

 40 CFR Parts 260, 261, 262, 263, 264,
 265, 266, and 270

 [EPA 530-Z-95-013; FRL-5686-4]

 RIN 2050-AD90

 Military Munitions Rule: Hazardous
 Waste Identification and Management;
 Explosives Emergencies; Manifest
 Exemption for Transport of Hazardous
 Waste on Right-of-Ways on
 Contiguous Properties

 AGENCY: Environmental Protection
 Agency.
 ACTION: Final rule.

 SUMMARY: In  response to section 107 of
 the Federal Facility Compliance Act
 (FFCA) of 1992, EPA is today finalizing
 a rule that identifies when conventional
 and chemical military munitions
 become a hazardous waste under the
 Resource Conservation and Recovery
 Act (RCRA), and that provides for the
 safe storage and transport of such waste.
 Today's final rule also amends existing
 regulations regarding emergency
 responses involving both military and
 non-military munitions and explosives.
 This rule also exempts all generators
 and transporters of hazardous waste, not
just die military, from the RCRA
 manifest for the transportation of
 hazardous waste on public or private
 right-of-ways on or along the border of
 contiguous properties, under the control
 of the same person, regardless of
 whether die contiguous properties are
 divided by right-of-ways. This revision
 is expected to reduce the paperwork
 burden, for hazardous waste generators
 whose property is divided by right-of-
 ways without loss in protection of
 public health.
 EFFECTIVE DATE: This rule is effective on
 August 12, 1997.
 ADDRESSES: The public docket for this
 rulemaking is available for public
 inspection at EPA's RCRA Docket.
 located at Crystal Gateway, First Floor.
 1235 Jefferson Davis Highway,
 Arlington, Virginia. The regulatory
 docket for this final rule contains a
 number of background materials. To
 obtain a list of these items, contact the
 RCRA Docket at 703-603-9230 and
 request die list of references in EPA
 Docket #F-97-MMF-FFFFF.
 FOR FURTHER INFORMATION CONTACT: The
 RCRA Hotline between 9:00a.m.-6:00
 p.m. EST, toll-free, at 800-424-9346;
 703-412-9810 from Government phones
 or if in the Washington, D.C. local
 calling area; or 800-553-7672 for the
hearing impaired. For more detailed
information on specific aspects of the
rulemaking, contact Ken Shuster by
calling 703-308-8759 or by writing, to
U.S. Environmental Protection Agency,
Office of Solid Waste. Permits and State
Programs Division. 401 M St.. S.W.
(Mailcode 5303W), Washington, D.C.
20460.
SUPPLEMENTARY INFORMATION: This rule
is available on die Internet. Please
follow these instructions to access die
rule electronically:
  From die World Wide Web (WWW),
type http://www.epa.gov/epaoswer,
then select option for Rules and
Regulations.
  This report can also be accessed from
the main EPA Gopher menu in die
directory: EPA Offices and Regions/
Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid
Waste (RCRA)/Hazardous Waste
Gopher: gopher.epa.gov
Dial-up: 919-558-0335
FTP: ftp.epa.gov
Login: name
Password: Your internet address
Files are located in /pub/gopher/
  OSWRCRA/hazwaste
  The official record for this action is
kept in a paper format. Accordingly,
EPA has transferred all comments
received into paper form and placed
diem into die official record, widi all
die comments received in writing. The
official record is maintained at die
address in die "ADDRESSES" section at
die beginning of this document.
  EPA's responses to comments have
been incorporated in a "Response to
Comments" document, which has been
placed into die official record for this
rulemaking. The major comments and
responses are discussed in die Response
to Comment sections of this preamble.
Preamble Outline
I. Legal Authority
II. Background
III. Summary of Significant Changes From
    Proposed Rule
IV. Description of the Final Rule and
    Responses to Comments
  A. Description of Major Affected Parties
  B. Scope, Applicability, and Definition of
    Military Munitions
  C. Separate CFR Pan for Military
    Munitions
  D. Uniform National Standards
  E. When Military Munitions Become a
    Solid Waste
  F. When Unused Military Munitions
    Become a Solid Waste
  1. Section 266.202(b)(l)—Munitions That
    Have Been or are Abandoned by Being
    Disposed of. Burned, or Otherwise
    Treated Prior to Disposal
  2. Section 266.202(b)(2)—Munitions
    Removed From Storage for the Purposes
    of Treatment or Disposal
  3. Section 266.202 (b) (3)—Leaking or
    Deteriorated Munitions
  4. Section 266.202 (b) (4)—Munitions
    Determined by an Authorized Military
    Official to be a Solid Waste
  G. When Military Munitions Are Not a
    Solid Waste
  1. Intended Use
  a. Section 266.202(a)(l)(i)—Military
    training exercises.
  b. Section 266.202(a)(l)(ii)—Weapons
    testing.
  c. Section 266.202(a)(l)(Hi)—Range
    clearance operations.
  2. Section 266.202(a)(2)— Disassembly
    operations.
  H. Military Munitions On Closed and
    Transferred Ranges
  I. When Used or Fired Military Munitions
    Become Solid Waste, including Military
    Munitions That Land Off-Range
  J. Waste Materials Derived from Munitions
    Manufacture
  K. Chemical Munitions
  L. Generator and Transporter Standards
  M. Storage Standards
  1. Conditional Exemption for Waste
    Military Munitions in Storage
  a. Conditional Exemption for Waste Non-
    chemical Munitions
  (1) Legal Basis for Conditional Exemption
    Approach
  (2) Implementation and Enforcement Issues
  (3) Amendments to DDESB Standards
  b. Waste Chemical Munitions
  (1) Applicability of RCRA Requirements to
    Waste Chemical Munitions
  (2) Inapplicability of Conditional
    Exemption
  (3) Inapplicability of RCRA Storage
    Prohibition
  2. Subpart EE
  N. Permit Modifications to Receive Off-Site
    Waste Munitions
  O. Environmental Justice
  P. Emergency Responses
  Q. Manifest Exemption For Transport of
    Hazardous Waste In Lieu of "On-Site"
    Redefinition
V. State Authority
VI. 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
VII. Submission to Congress and the General
    Accounting Office

I. Legal Authority

  These regulations are being finalized
under die authority of sections 2002,
3001-3007 (including 3004(y)), 3010,
7003, and 7004 of die Solid Waste
Disposal Act of 1965, as amended,
including amendments by RCRA and
die FFCA (42 U.S.C. 6912, 6921-7,
6930, and 6973-4).

II. Background

  Section 107 of die Federal Facility
Compliance Act (FFCA) of 1992

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         Federal Register / Vol. 62, No. 29 / Wednesday.  February  12.  1997 /Rules and  Regulations   6623
 amended the Resource Conservation
 and Recovery Act (RCRA) by adding a
 new section 3004 (y) that requires the
 U.S. Environmental Protection Agency
 (EPA) to propose, after consulting with
 the Department of Defense (DOD) and
 appropriate State officials, and then to
 finalize regulations that identify when
 conventional and chemical military
 munitions become hazardous waste
 subject to Subtitle C of RCRA. and that
 provide for the safe storage and
 transportation of such waste. Such
 regulations are to assure the protection
 of human health and the environment.
 This final rule responds to this
 Congressional mandate. The Agency
 consulted with DOD and appropriate
 State representatives prior to the
 promulgation of this rule, as the statute
 requires. Records of these meetings and
 information provided to EPA have been
 included in the official docket of this
 final action.
   EPA proposed the rule on November
 8, 1995 (60 FR 56468). The public
 comment period ended on February 2,
 1996. As mentioned in the proposal, the
 Agency focused on several key issues
 that have arisen in the application of
 RCRA to military munitions, or that
 have been raised by DOD, States, or
 citizen groups. The six major issues
 raised during the development of the
 proposed rule and addressed in today's
 final rule are the following: (1) At what
 point does an unused munition become
 a RCRA "hazardous waste," potentially
 subject to RCRA permitting and
 technical management standards?
 Specifically, at what point in the
 process do unused 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? (3) How
 do RCRA hazardous waste regulations
 apply to emergencies involving military
 munitions and explosives and non-
 military explosives? (4) In what way (if
 any) do RCRA requirements apply to
 unexploded ordnance and
 environmental contamination at
 military ranges, especially ranges that
 are closed or transferred? (5) Once it has
 been determined that a munition is a
hazardous waste for regulatory
purposes, what management standards
are needed to ensure safe transportation
and storage, while protecting human
health and the environment? (6) Should
the definition of "on-site" be revised  to
simplify compliance with RCRA
manifest standards at contiguous
facilities cut by right-of-ways?
  In developing the final rule, EPA
reviewed the comments received from
 124 organizations and individuals on
 the proposed rule, including DOD, other
 Federal agencies. States, universities,
 associations, corporations, and citizen
 groups. These comments can be found
 in the official docket for this final rule.
 Responses to significant comments can
 be found in the preamble of today's rule.
  In addressing each of the above six
 issues, EPA proposed (in the November
 8, 1995 Federal Register) an option
 followed in some cases by a discussion
 of "alternative options" on which the
 Agency requested comment. Because of
 the length and complexity of the issues
 and options proposed, the Agency is not
 revisiting or summarizing these in this
 final rule preamble to any great extent.
 The reader may refer to the proposed
 notice for a detailed account of the
 original proposal. Instead, this final rule
 preamble expands on the discussion of
 the selected alternative, which appeared
 in the proposal, in order to provide
 additional discussion of the finally
 selected option. Following that
 discussion is a response to comments
 section for each topic. Together, the
 purpose of these discussions is to
 explain and clarify the Agency's final
 direction.

 III. Summary of Significant Changes
 From Proposed Rule
  Following is a summary of the
 significant changes to the proposed rule
 in today's final rule. Where the Agency
 proposed multiple options, this
 summary identifies those alternatives
 that EPA has incorporated into today's
 final rule.
  The final rule consolidates the
 requirements applicable solely to
 military munitions in a new subpart M
 under 40 CFR Part 266.
  The applicability of proposed 40 CFR
 264 and 265 subparts EE for storage of
 waste munitions and explosives is being
 expanded to be available to owners and
 operators of all units storing such
 wastes, not just the military. In addition,
 EPA has decided to finalize the second
 alternative discussed in the storage
 section of the proposed preamble. This
 is the conditional exemption alternative,
 under which non-chemical waste
 military munitions that otherwise meet
 the definition of "hazardous waste" are
 not regulated under RCRA as a
 hazardous waste so long as they meet all
 of the conditions set forth in § 266.205.
Today's rule also finalizes the
 conditional exemption approach for
 transportation of waste munitions when
shipped between military installations
 in accordance with DOD standards.
  The Agency is today postponing final
action on the status of military
munitions left on closed or transferred
ranges. This will enable the Agency to
 thoroughly evaluate the numerous
 public comments as well as the DOD
 Range Rule which is currently under
 development.
   Instead of modifying the definition of
 "on-site," as proposed, the final rule
 revises 40 CFR Part 262 to exempt from
 the RCRA manifest requirements
 shipments on right-of-ways on (or
 bordering) contiguous properties under
 the control of the same person, where
 the property is cut by right-of-ways. The
 title for today's rule also reflects this
 change.

 IV. Description of the Final Rule and
 Responses to Comments
   This rule finalizes the proposed
 "Military Munitions Rule: Hazardous
 Waste Identification and Management;
 Explosive Emergencies; Redefinition of
 On-Site" (60 FR 56468. November 8,
 1995). This section explains the
 Agency's final action, based on the
 rationale presented in the proposal and
 the Agency's review of the public
 comments and further examination of
 the proposed options.
   To facilitate the reader's review of this
 final rule and to streamline the overall
 structure, this section also contains the
 Agency's responses to the most
 significant comments after each of the
 topics discussed. If a particular section
 does not contain a response to comment
 section, then either the Agency did not
 receive comment on this topic or it has
 chosen to place its response in the
 background document entitled Military
 Munitions Rule Response to Comments
 Background Document. This
 background document contains a
 complete discussion of the Agency's
 responses to comments and can be
 found in the docket for this rulemaking.
 This document provides a complete
 record of the public comments followed
 by the Agency's responses. To obtain a
 copy, please refer  to the "ADDRESSES"
 section of this preamble.

 A. Description of Major Affected Parties
  Since the primary focus of this final
 rule is military munitions, the major
 regulated parties are the U.S.
 Departments of Defense, Energy, and
 Transportation (U.S. Coast Guard) and
 the National Guard (the inclusion of
 these is discussed below in section B).
 Even so, various sections of the rule are
 expected to impact a number of other
 groups, as well. The emergency
 response portions of this rule apply to
 non-military munitions and explosives
 and non-military personnel as well as
military. In addition, the 40 CFR 264
and 265 subpart EE standards for waste
munitions and explosives are also
available for use by non-military

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  6624   Federal Register  /  Vol.  62.  No. 29  /  Wednesday,  February  12,  1997 / Rules and  Regulations
 entities. The exemption from manifest
 requirements for transportation along
 public roads on contiguous properties
 owned by the same person that are
 divided by a public right-of-way,
 applies to non-military as well as
 military wastes and properties. The rest
 of the proposed rule was developed
 primarily for the military, based, in part,
 on the EPA's review of RCRA and
 current military munitions management
 standards and practices.

 Response to Comments
   In response to commenter inquiries
 and suggestions regarding the
 applicability of the proposed provisions
 (primarily storage standards and range
 standards), EPA is clarifying and
 modifying certain provisions to
 accommodate some non-military
 situations. For example, one commenter
 suggested that munitions or explosives
 controlled by other government
 agencies, e.g., NASA, should be
 included within the scope of the
 rulemaking if those agencies have
 comparable storage standards. Other
 commenters suggested that EPA clarify
 that the final rule applies to military
 contractors to the extent that they
 comply with the appropriate DOD
 requirements. Further, for military
 contractors, where the distinction
 between military munitions and
 munitions produced for the private
 sector or other public sector
 organizations is unclear (e.g., the same
 production lines and storage units are
 used), the final rule should clarify that
 it also applies to waste materials
 associated with munitions produced for
 the private or public sector to the extent
 the management of these wastes also
 complies with the appropriate DOD
 requirements. Several commenters
 suggested that subpart BE should be
 made available for non-military and
 private concerns.
  In response to these comments, EPA
 has retained the subpart EE standards in
 40 CFR Parts 264 and 265. and has
 expanded their availability to all
 munitions and explosives, not just
 military, in order to make subpart EE
 available to facilities that store non-
 military munitions or explosives and
 facilities that are not subject to
 Department of Defense Explosive Safety
 Board (DDESB) jurisdiction. Thus,
 commercial/private ventures that
 operate in compliance with DDESB
 storage requirements and that also
 produce munitions for the private sector
 that are stored  in the same manner, as
well as all commercial and private
ventures that store non-military
munitions or explosives, regardless of
compliance with the DDESB standards,
 may avail themselves of subpart EE for
 all such munitions/explosives wastes.
 Similarly, other Federal agencies (e.g.,
 National Aeronautical and Space
 Administration (NASA), Federal Bureau
 of Investigations (FBI), and the Bureau
 of Alcohol, Tobacco, and Firearms
 (BATF)) that store waste munitions and
 explosives may also apply for a storage
 permit under subpart EE. In those cases
 where the owner/operator's practices
 are comparable or identical to the
 DDESB-prescribed practices, they could
 expect to satisfy the subpart EE
 standards.

 B. Scope. Applicability, and Definition
 of Military Munitions
   The definition of "military
 munitions," finalized in 40 CFR 260.10,
 establishes the scope for much of
 today's rule. In 40 CFR part 266, subpart
 M, today's rule establishes special
 procedures and management standards
 for waste military munitions. The term
 "military munitions" is defined to
 include all types of both conventional
 and chemical ammunition products and
 their components, produced by or for
 the military for national defense and
 security (including munitions produced
 by other parties under contract to or
 acting as an agent for DOD — in the case
 of Government Owned/Contractor
 Operated [GOCO] operations). This
 definition clarifies, as it did in the
 proposal, that military munitions may
 be under the control of the Department
 of Energy (DOE), even though DOE is
 not usually considered to be within the
 "military." DOE maintains the nation's
 nuclear arsenal for the military, and
 maintains munitions and personnel to
 protect the arsenal. The definition
 clarifies that military munitions  may
 also be under the control of the U.S.
 Coast Guard (Department of
 Transportation), and the National Guard
 (which includes the State National
 Guard), as well as the Department of
 Defense and its various components.
 The U.S. Coast Guard and National
 Guard are generally considered to be
 within the military. Chemical agents
 and munitions are given the same
 definition as in 50 LJ.S.C. section
 organizations listed above in the scope     '
 of the various provisions of today's rule.
   The definition of "military
 munitions" lists a number of examples
 of military munitions components,
 including propellants, explosives,
 pyrotechnics, bulk chemical warfare
 and riot control agents, smokes,
 incendiaries, warheads, cluster
 munitions and dispensers, and depth
 and demolition charges; and product
 examples, including rockets, guided and
 ballistic missiles, bombs, mines,
 grenades, mortar rounds, artillery and
 small arms ammunition, torpedoes, and
 chemical munitions. The definition
 excludes wholly inert items and
 improvised explosive devices, for
 example, home made bombs (which are
 non-military) >. The definition also
 excludes nuclear weapons, nuclear
 devices, and non-nuclear components
 thereof (including subparts of
 components) managed under DOE's
 nuclear weapons program, which still
 must have necessary sanitization 2
 operations completed thereon under the
 requirements of the Atomic Energy Act
 (AEA) of 1954. The phrase regarding
 "sanitization" has been added to the
 definition of "military munitions" to
 make it clear that any non-nuclear
 components of nuclear weapons or
 devices that do not require sanitization
 under the AEA are "military munitions"
 under today's rule. A phrase has also
 been added to the end of the definition
 of "military munitions" to clarify that
 upon completion of the sanitization of
 non-nuclear components (or component
 subparts) of nuclear weapons or devices,
 the remaining materials are considered
 "military munitions" that, thereafter,
 are covered by subpart M of Part 266 of
 today's rule. Any component of a
 nuclear weapon or device that is source,
 special nuclear, or by product material
 as defined by the Atomic Energy Act of
 1954, as amended, would not be
 included in this definition, nor would
 they otherwise be subject to RCRA
 requirements, since these materials are
 excluded from the statutory definition
 of solid waste under section 1004(27).
  EPA considered including in this rule
 all of the non-nuclear components of
  For purposes of today's rule, the term
"military" is also meant to include DOE
and the other organizations listed above,
as well as other parties under contract
or acting as an agent for DOD. as long
as they are managing "military
munitions." Because the term
"military" appears hi the rule without
the term "munition," the term
"military" has been defined in section
266.201 to make it clear that these
parties are included with the other
  1 Improvised explosive devices, or lEDs, are non-
standard explosive devices made from either
military or non-military materials by non-military
personnel.
  2 Sanitization means the irreversible modification
or destruction of a component or pan of a
component of a nuclear weapon, device, trainer, or
test assembly as necessary to prevent revealing
classified or otherwise controlled information (e.g.,
unclassified information that is restricted from the
standpoint of export control because of its
significance for nuclear explosive's research,
development, fabrication, or proliferation purposes)
as required by the Atomic Energy Act of 1954, as
amended.

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         Federal Register / Vol. 62, No.  29 / Wednesday, February 12.  1997  /  Rules and Regulations   6625
 nuclear weapons which are managed by
 DOE under its responsibilities for the
 Nation's nuclear weapons program as
 provided in the AEA of 1954 (U.S.C.
 section 2011 et seq.). As the Agency
 stated in its proposal, an analysis of the
 legislative history associated with
 section 107 resulted in the conclusion
 that the FFCA does not contemplate the
 inclusion of nuclear weapons within the
 scope of this rule. The statutory
 language and legislative history of
 section 107 clearly demonstrate the
 intent of Congress that EPA develop
 regulations that address conventional
 and chemical munitions with no
 mention being made of nuclear weapons
 or their components. Furthermore, EPA
 recognizes that DOE's practices and
 procedures for the management of
 nuclear weapons under the AEA, as
 well as the potential impacts on DOE
 operations, are significantly different
 from those of DOD pertaining to
 conventional and chemical munitions
 that are addressed in this rule. As a
 consequence, EPA has concluded that
 non-nuclear components of nuclear
 weapons are excluded from the
 definition of "military munition" until
 all necessary AEA required sanitization
 has been completed. After sanitization,
 EPA believes these materials are no
 different from other munitions managed
 for national defense, and, therefore, are
 included within the scope of this rule.
 Under today's rule, however,
 conventional or chemical munitions
 that DOE produces or manages for the
 military,  or maintains and uses
 (including for training purposes) to
 protect the nuclear arsenal, are "military
 munitions" under this final rule.

 Response to Comments
  The Agency received a number of
 comments regarding the extent to which
 this rule should or should not apply to
 other government agencies and to the
 private sector, as well as the military. In
 addition to military munitions under
 the control of DOD, DOE, the U.S. Coast
 Guard, and the National Guard, the rule
 also applies to other parties (e.g., a
 private company) producing or
 managing military munitions under
 contract to, or as an agent for, DOD or
 these other agencies. Since it is clear in
the definition of "military munitions"
that the definition applies to all military
munitions regardless of who is
managing them, no change has been
made to the rule.
  Comments were also received on
specific terms in the definition or the
need for further clarifications to the
proposed definition of "military
munitions." Some of these comments
are reflected in the final definition of
 "military munitions" at 40 CFR part
 260.10. For example, the final definition
 reflects the comments that "mortar
 rounds" and "artillery ammunition" are
 more accurate than "mortar" and
 "artillery," which are the weapons, not
 the ammunition. On the other hand,
 "napalm" was not added to the
 definition because it is covered by the
 term "incendiaries."

 C. Separate CFR Part for Military
 Munitions
  In the proposed preamble, EPA
 solicited comment on DOD's request
 that EPA create a separate part or
 subpart for military munitions in order
 to consolidate and simplify the
 regulations for the military, based on the
 argument that this would increase
 understanding and thereby enhance
 compliance. In today's rule, EPA has
 consolidated all the requirements solely
 applicable  to military munitions in 40
 CFR Part 266 subpart M, with
 appropriate cross  references.
 Requirements applicable but not unique
 to military  munitions (e.g., treatment
 and disposal standards) are retained
 elsewhere and referenced in
 § 266.200(b) of subpart M. EPA
 recognizes  that some  of the cross-
 references in subpart M are redundant
 with § 266.200(b), but has included
 diem for clarity.

 Response to Comments
  The creation of a separate part for
 military munitions was supported by
 several commenters, in addition to
 DOD. EPA agrees with the commenters
 that there is a benefit to placing all
 requirements pertaining to military
 munitions in the same CFR part, given
 DOD's nationwide presence, and
 logistical and operational needs. The
 Agency also agrees that consolidation of
 the standards for waste military
 munitions could simplify integration by
 DOD of these rules with the DDESB and
 die Service-specific requirements for die
 management of all military munitions
 (including waste munitions). This
 consolidation should  facilitate DOD's
 compliance as well as State
 implementation and oversight activities.
 In proposing this option, DOD
 recommended that the standards be
 placed in 40 CFR Part 269 (which has
 already been taken by another
rulemaking proposal). In supporting this
option, EPA has decided to place it in
 40 CFR Part 266, which is being used to
address special types  of waste and waste
management facilities.

D. Uniform National Standards
  In the proposed  preamble, EPA asked
for comment on an alternative that
 would have prohibited States from
 enforcing broader or more stringent
 requirements with respect to military
 munitions. EPA has not adopted this
 approach in today's rule.

 Response to Comments
   The Agency received an
 overwhelming response to this proposed
 alternative. While EPA recognizes
 DOD's need for national consistency in
 managing its munitions, including
 waste munitions, given DOD's national
 defense mission, nation-wide presence,
 and logistical and operational needs, the
 Agency has decided not to depart from
 the standard RCRA approach in today's
 rulemaking. Therefore, today's  rule
 maintains die standard Federal-State
 relationship embodied in other parts of
 die RCRA program. While EPA strongly
 encourages States to adopt the terms of
 today's rule, it acknowledges that States
 may adopt requirements-widi respect to
 military munitions that are more
 stringent or broader in scope than the
 Federal requirements. See RCRA section
 3006 and 3009.

 E. When Military Munitions Become a
 Solid Waste
   RCRA section 3004(y) requires EPA to
 identify when military munitions
 become hazardous waste for purposes of
 Subtitle C of RCRA. Under the RCRA
 regulations, materials are considered to
 be "hazardous waste," for regulatory
 purposes, if die following criteria are
 met: (1) die material is a "solid waste,"
 as defined in 40 CFR 261.2, and (2) the
 material meets die definition of
 "hazardous waste" in 40 CFR 261.3.
 Today's final action, in keeping with die
 original proposal, focuses on the first
 point—clarifying when munitions
 become a solid waste.
  Under the existing provisions of 40
 CFR 261.2 of die 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
 disposed of, burned or incinerated.
 Section 261.2(c) then describes under
which circumstances recycled materials
are solid wastes (e.g.,used in a manner
constituting disposal or accumulated
speculatively). Today's final action adds
a new provision in § 261.2 (a) (2)  for
military munitions that refers to
§ 266.202, which specifies how the
regulatory term "discarded material"
applies to unused and  used military
munitions. The following sections of die

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 6626   Federal Register / Vol. 62, No.  29 / Wednesday. February 12. 1997 / Rules and Regulations
 preamble'discuss the regulatory
 definition of solid waste in the context
 of three specific categories of military
 munitions: (1) unused munitions, (2)
 munitions being used for their intended
 purpose, and (3) used or fired
 munitions.
 F. When Unused Military Munitions
 Become a Solid Waste
  This rule finalizes proposed 40 CFR
 261.2(g)(l)(i)-(iv) in 40 CFR Part 266,
 subpart M, §266.202(b)(l)-(4). These
 paragraphs identify the specific
 circumstances under which an unused
 munition is considered to be solid waste
 for regulatory purposes. An unused
 military munition becomes a solid waste
 when: (1) the unused munition is
 "abandoned by being disposed of,
 burned, or incinerated, or treated prior
 to disposal"; (2) the unused munition is
 removed from storage for purposes of
 disposal or treatment prior to disposal;
 (3) the unused munition is deteriorated,
 leaking, or damaged to the point that it
 can no longer be returned to serviceable
 condition, and cannot be reasonably
 recycled or used for other purposes
 (except, of course, recycling that is like
 "discard," i.e., placement on the
 ground, unless such placement is the
 result of use as a munition, or burning
 for energy recovery); or (4) the munition
 has been determined by an authorized
 military official to be a solid waste.
 1. Section 266.202 (b)(l)—Munitions
That Have Been or Are Abandoned by
Being Disposed of. Burned, or
Otherwise Treated Prior to Disposal
  Section 266.202(b)(l), proposed as
§ 261.2(g)(l)(i), specifies that an unused
munition becomes discarded, and,
therefore, a solid waste for regulatory
purposes when it is or has been
abandoned by being disposed of (e.g.,
buried or landfilled), burned or
incinerated, or otherwise 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 waste munitions meet the § 261.3
definition of "hazardous waste").
Similarly, unused munitions that were
buried or landfilled in the past are
considered abandoned, and, therefore,
are solid waste, and, if hazardous, they
would become subject to applicable
Subtitle C regulation when unearthed
and further managed. EPA emphasizes,
as it did in the proposed rule, that this
provision will not bring use of military
munitions for their intended purposes—
e.g., the firing of military rounds—
within the regulatory scope of RCRA.
The use of a product for its intended
purpose (in this case a military
munition), in EPA's view, is not a waste
management activity and does not
constitute abandonment or disposal for
the purposes of § 266.202(b)(l).
2. Section 266.202(b)(2)—Munitions
Removed From Storage for the Purposes
of Treatment or Disposal
  Section 266.202(b)(2), proposed as
§ 261.2(g)(l)(ii), specifies 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 3 for the purposes of
disposal, burning, incineration, or other
treatment prior to disposal. Unused
military 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." EPA believes that an unused
product becomes "discarded" when an
intent to discard the material is
demonstrated. However, "intent," in
many cases, is difficult to discern;
therefore, in this rule, EPA has
identified a clear test to determine the
military's "intent" in the case of unused
munitions. Indeed, this issue is at the
heart of the purpose behind RCRA
section 3004(y). Congress instructed
EPA to develop a "fair and coherent
approach" to identify when military
munitions become a solid waste for
Subtitle C purposes, in order to avoid
creating a situation where the courts
must constantly interpret unclear rules.
[H.R. Conf. Rep. No. 886. 102d Cong., 2d
Sess. 29 (1992)]. The Agency believes it
has chosen a clear, simple, enforceable
test that is similar to the approach the
Agency has taken toward commercial
chemical products and fits the unique
context of military munitions.
  DOD's complex system of accounting
and management controls and the
numerous options available to DOD for
reconditioning, reuse, and sale, etc.,
make it difficult to determine at what
point there is an "intent to discard" a
particular unused munition. DOD's
classification of a munition in one of the
various DOD "demilitarization"
accounts does not, in EPA's view,
constitute a decision to discard the
  3 The term "military magazine or other storage
area" refers to all types of military munitions
storage units allowed under the DOD Explosives
Safety Board (DDESB) standards (DOD 6055.9-
STD). which are mandatory for use by all DOD
components, including outdoor or open storage
areas, sheds, bunkers, and earth-covered and above-
ground magazines.
material because, pursuant to DOD's
practices, such a classification does not
necessarily evidence an intent to
discard that munition. Ammunition
classified as "Condition Code H" or as
"unserviceable," or in a demilitarization
account (such as the Army's Resource
Recovery and Disposition Account) for
example, may be either returned to
service after further review, or in some
cases after reprocessing; sold for non-
military purposes or to nations that
maintain weapons that utilize these
munitions; or otherwise reused,
reclaimed, or recycled. Even usable
munitions scheduled for disposal may
be called back into service, if needed,
and thus may still also serve a deterrent
purpose. 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, by itself, constitute an intent
to discard that munition.
  For these reasons, today's rule does
not define stored, unused military
munitions as "solid waste" subject to
Subtitle C, except as provided in
paragraphs 266.202(b) (3) and (4). In
EPA's view, the appropriate point at
which  to consider most unused military
munitions to be a solid waste is when
the material is finally removed from
storage for the purpose of disposal or
treatment prior to disposal. In practical
terms,  this provision means that storage
of unused munitions is, for the most
part, not subject to RCRA regulation;
however, once a munition is removed
from a  magazine for the purpose of
disposal or treatment prior to disposal,
it is a solid waste  and is potentially
regulated under Subtitle C of RCRA.
  EPA emphasizes that this provision
will trigger RCRA coverage only where
a decision to treat or dispose of the
munition has 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
reconditioned 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 treatment or
disposal, but rather for evaluation. The
munition is to be handled as a waste
only if no further evaluation  would take
place and the decision to destroy has
already been made.4 Similarly, a
 4 EPA has taken a similar position in the case of
Pharmaceuticals returned to the manufacturer. See
letter from Sylvia K. Lowrance, Director, EPA Office
of Solid Waste, to Mark J. Schulz, Pharmaceutical

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         Federal  Register / Vol. 62, No. 29 / Wednesday, February 12, 1997  / Rules and Regulations    6627
munition may be removed from storage
for the purpose of reconditioning,
recycling or materials recovery without
triggering RCRA.
  EPA's approach, as supported by
many of the public comments, is also
based on the recognition that DOD has
in place extensive storage and
transportation standards that, in
providing for explosives safety and
security, are also protective of human
health and the environment; and that
the military Services' safety record in
storing and transporting all munitions,
including waste munitions, has been
good. EPA further believes that there is
no compelling environmental or legal
reason to establish an earlier point at
which unused munitions are a solid
waste, except in the case of the
following: munitions that are
abandoned or disposed of in the past;
munitions that are leaking, deteriorated
or damaged to the point they cannot be
put into serviceable condition, recycled,
or put to other uses; or that have been
declared a waste by an authorized
military official. Also, it is clearer and,
therefore, easier to implement an  intent-
based test where a component of the
determinant of DOD's intent is when the
munition is physically removed from
storage for treatment or disposal rather
than solely trying to figure out when a
decision by an appropriate authority has
been made. Even so, § 266.202 (b) (4),
discussed in section 4 below, retains the
more intent-based test for situations
where a decision by an authorized DOD
official has clearly been made. More
importantly, however, to move away
from the proposed point (when a
munition leaves storage) would
significantly, and needlessly, increase
the regulatory burden not only on DOD,
but also on regulators (for enforcement
and for permitting), and it could
potentially disrupt DOD's program for
the management of military munitions.
The Agency has selected this final
approach, in part, because it involves a
minimum of interference with the
military's established and proven
system for managing unused munitions,
and it will not conflict with the
Services' logistical needs or constraints.
Munitions in the active,
demilitarization, and waste accounts are
all managed under the same storage and
transportation standards, and they are
often stored  together in the same
magazines. Thus, the hazards posed by
a stored munition do not change when
it is classified as "unserviceable"  or
placed into a demilitarization account,
Services. Inc., Browning-Ferris Industries. May 16,
1991.
or when it is scheduled for treatment or
disposal.
  EPA has determined that the
military's storage standards and
practices for munitions provide a degree
of protection that is comparable to, or
better than, what RCRA regulation
would provide. The storage of military
munitions is regulated under standards
developed and overseen by the
Department of Defense Explosives
Safety Board (DDESB), as well as
Service-specific standards, which must
be at least as stringent as the DDESB
standards. As mentioned in the
proposal, EPA has 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
significant respects. A more detailed
discussion on the differences between
the RCRA and DDESB standards may be
found in the preamble of the proposed
rule (60 FR 56474), and in the docket for
this rule (A Comparison of RCRA
Storage Requirements With DOD
Requirements for Storage of Military
Munitions, EPA, October 31, 1995).
Again, the DOD safety record for the
management of all military munitions,
including waste munitions, has been
good.
3. Section 266.202(b) (3)—Leaking or
Deteriorated Munitions
  Section 266,202(b)(2), discussed
above, defines the most common
circumstances under which an  unused
military munition becomes a solid
waste—that is, when a decision has
been made to dispose of or treat it and
it is removed from storage for
transportation to a disposal site, to a
treatment unit, or to a storage unit at
another facility  prior to treatment or
disposal. EPA, however, recognizes (and
States and citizen's 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 a
potential safety  hazard or environmental
threat. To address these circumstances,
§266.202(b)(3),  which finalizes
proposed §261.2(g)(l)(iii), defines an
unused military munition as a solid
waste if it is "deteriorated or damaged
(e.g., the integrity of the munition is
compromised 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." For example, if the
stabilizers in a propellant have
deteriorated to the point at which there
is such a significant hazard of auto-
ignition that the only options available
to DOD are treatment or disposal, that
propellant would be a solid waste. If,
however, the propellant had not
deteriorated to this point and could
reasonably be reclaimed, it would not be
a solid waste.
   Similarly, leaking chemical munitions
that cannot be put into serviceable
condition, and that cannot be
reasonably recycled or used for other
purposes would also be a solid waste. A
leaking chemical munition that has been
overpacked is so unlikely to ever be
used, repaired, or recycled, that EPA
views such a munition as a solid waste
unless DOD already has in place an
established repair or recycling plan.
Munitions in these situations are
defined in today's rule as solid waste. A
leaking chemical munition or agent
container (e.g., a one ton chemical
container), however, may be repaired
and the material still considered to be
a product, not a solid waste, unless DOD
determines it is a solid waste under
§266.202(b)(4).

4. Section 266.202(b) (4)—Munitions
Determined by an Authorized Military
Official To Be a Solid Waste
  Finally, proposed §261.2(g)(l)(iv) is
finalized in § 266.202(b)(4) to make it
clear that an authorized military official
may identify an unused military
munition as a RCRA "solid waste." In
this case, the designated waste munition
(if "hazardous" or if designated by the
generator as hazardous under § 262.11)
would be subject to the hazardous waste
regulations unless it is a non-chemical
munition that meets the terms of the
conditional exemptions in § 266.203 or
§ 266.205. For example, in 1984, the
Department of the Army determined
that M55 rockets are hazardous waste.
DOD made this decision because die
rockets' delivery system no longer
existed, and because DOD decided, for
operational reasons, that die 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. This final action does not
affect die waste status of these materials
previously declared "solid waste," and
provides for similar future classification
of military munitions as solid or
hazardous waste.
  EPA emphasizes that § 266.202(b)(4)
requires a specific declaration by an
authorized military official that a
munition is a solid or hazardous waste.
EPA expects that the declaration would
be in writing. As explained earlier, a
decision under DOD's classification
systems that a munition is
"unserviceable," or the transfer of a

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 6628   Federal Register / Vol. 62, No.  29 / Wednesday, February 12. 1997 / Rules  and Regulations
 munition into a "demilitarization"
 account would not, by itself, constitute
 a decision that a munition is a solid
 waste.
 Response to Comments
  DOD commented that EPA should
 designate unused military munitions as
 solid wastes when certified for
 treatment or disposal and received at
 the treatment or disposal unit. This
 would avoid the need for compliance
 with RCRA storage and transportation
 requirements, and permit modifications
 for off-site wastes (discussed below in
 section M). For the reasons stated in the
 preamble for the proposed rule, EPA
 continues to believe unused military
 munitions slated for treatment or
 disposal should be classified as solid
 waste when they leave storage.
  Some commenters suggested that
 munitions identified as "unserviceable"
 or "Condition Code H" or placed in a
 "demilitarization account" should be
 included as solid waste, because, in the
 commenter's view, the designations
 express an intent to discard these
 munitions. Other commenters took the
 opposite view, that such designations
 do not express an intent to discard.
 Some commenters further stated that
 EPA should develop a scheme,
 including possibly a schedule, that
 would force DOD to evaluate and make
 determinations in a timely manner that
 materials in the various
 "unserviceable," "Condition Code H,"
 "demilitarization," or "resource
 recovery and disposition" accounts are
 or are not "solid waste," arguing that
 there are tremendous volumes of
 materials in these accounts that DOD
 should be compelled to act upon to
 reduce the amount in storage and,
 thereby, reduce storage risks.
  For the reasons discussed above and
 in the preamble to the proposed rule,
 EPA does not agree that such materials
should be classified as solid waste
 (except those that are leaking, damaged,
or deteriorated as addressed in
§ 266.202(b)(3)) nor that EPA should
develop a scheme to force DOD to make
such determinations, especially given
the DOD storage standards, practices
and record.
 G. When Military Munitions Are Not a
 Solid Waste
  Military munitions, under today's
final rule, are not a solid waste for
regulatory purposes: (1) when a
munition is used for its intended
purpose, which includes when a
munition is used for the training of
military personnel and of explosives
and emergency response specialists:
when a munition is used for research,
development, testing, and evaluation;
and when a munition is destroyed
during certain range clearance   .
operations; and (2) when  an unused
munition, including components
thereof, is repaired, reused, recycled,
reclaimed, disassembled, reconfigured,
or otherwise subjected to materials
recovery activities.

1. Intended Use
  Under RCRA, the use of products for
their intended purpose, even when the
use of the product results in deposit on
the land, does not necessarily constitute
"discard," is not waste management,
and is not subject to regulation. For
example, RCRA does not regulate the
use of pesticides by farmers, 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
quarrying or construction activities.
Similarly, EPA has consistently held
that the use of munitions  (military or
otherwise) for their intended purpose
does not constitute "discard," and
therefore is hot a waste management
activity. Section 266.202(a)(l)(i)-(iii), in
finalizing proposed § 261.2 (g)(3)(i)-(iii),
clarifies this point and provides specific
examples of military activities that are
excluded from RCRA regulation.
  a. Section 266.202(a)(l)(i)—Military
training exercises. Section
266.202(a)(l)(i) clarifies that munitions
used in  the training of military
personnel and explosive ordnance
disposal (EOD) personnel are not
regulated under RCRA. As discussed in
the proposal (60 FR 56475), EPA views
such training, which could include
training military personnel in the
destruction of unused propellant and
other munitions, to constitute the '
normal use of a product, rather than
waste disposal. For example, to ensure
that military personnel can safely and
efficiently destroy propellant during
wartime, military training exercises
involving artillery and mortar rounds
typically include training in the safe
burning of unused propellant. In EPA's
view, the training of military personnel
in the wartime use of munitions is a
legitimate use that lies outside the scope
of RCRA. Such training exercises
typically follow detailed protocols for
training military personnel in the
handling and burning of unused
propellants.
  b. Section 266.202(a)(l)(ii)—Weapons
testing. Today's final rule 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 the 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. Section 266.202(a)(l)(iii)—Range
clearance operations. The military
Services often conduct range clearance
exercises as a result of weapons testing
or training at firing ranges. During these
exercises, military Explosive Ordnance
Disposal (EOD) specialists clear ranges
of debris and unexploded ordnance,
which are generally destroyed on-site
but may also be shipped off-range for
treatment or disposal. The frequency of
these range clearance activities differs
according to the nature of the area
within the range. For example, range
areas known as maneuver zones, where
tanks, other vehicles, and personnel are
present are generally cleared more
frequently than range impact areas. 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 training or testing. EPA
also considers this provision to be
consistent with Congress' intent that
EPA take DOD safety requirements into
account in developing regulations under
RCRA section 3004 (y). [H. R. Conf. Rep.
No. 886, 102d Cong., 2d Sess. 29
(1992)]. Furthermore, from an
environmental perspective, it makes no
difference whether ordnance explodes
on impact or is subsequently detonated
by an EOD specialist. Therefore, this
final rule excludes range clearance
exercises (i.e., the recovery, collection,
and on-range treatment or destruction of
unexploded ordnance) at active or
inactive ranges from RCRA Subtitle C
regulation.
  Under today's rule, any debris or
unexploded ordnance (UXO) shipped
off-range for treatment or disposal is a
solid waste, and if a hazardous waste, it
would potentially be subject to the
RCRA Subtitle C requirements.
However, it would not be a solid waste
if shipped off-range for further
evaluation, unless the evaluation is
related to treatment and disposal.
  Finally, today's rule clarifies that on-
range disposal (e.g., the recovery,
collection, and subsequent burial or
placement in a landfill) of UXO is a
RCRA-regulated activity under Subtitle
C.

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           Federal  Register / Vol. 62, No.  29 / Wednesday, February 12, 1997 / Rules and  Regulations   6629
  2. Section 266.202(a)(2)—Disassembly
  Operations
    Proposed §261.2(g)(5) is being
  finalized in §266.202(a)(2). Unused
  military munitions that are being
  repaired, reused, recycled, reclaimed,
  disassembled, reconfigured, or
  otherwise subjected to materials
  recovery activities are not solid waste.
  Therefore these activities are not subject
  to RCRA, "unless such activities involve
  use constituting disposal, as defined in
  § 261.2(c)(l) or burning for energy
  recovery as defined in § 261.2(c)(2)"
  (these exceptions have been added to
  today's rule for consistency with the
  proposed preamble at 60 FR 56472 and
  56477 and existing section 261.2(c)]. Of
  course, the subtitle C regulations do
  apply if the munition is already
  classified as a waste and the
  disassembly is carried out to prepare for
  waste disposal. Materials recovery
  operations constitute a large part of
  DOD's Resource Recovery and Recycling
  Program, which EPA strongly supports
  and encourages. As discussed in the
  proposal preamble (60 FR 56472), this
  section is analogous to §§ 261.2 (c) and
  (e) and 261.33 for "commercial
  chemical products." Thus, the position
  EPA is taking in today's rule on military
  munitions recycling or materials
  recovery operations is similar to the
  position the Agency 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 can be
  found in the proposed notice to this
  final action.
    In the proposed rule, the Agency
  requested comment on one particular
  type of munitions recycling activity: the
  processing of an unused propellant or
  explosive for use as fertilizer. In the
  preamble to the proposed rule, the
  Agency noted that this form of recycling
  involves application of propellant or
  explosives to the land in lieu of its
  originally intended use. This use as a
  fertilizer is regulated as a waste
  management activity unless it meets the
 terms of an exemption. In reviewing this
 issue, the Agency has determined the
 recycling of propellants or explosives
 into fertilizer may be a permissible
 activity under RCRA.
   Specifically, the Agency notes that in
 this scenario, the unused propellant or
 explosive would become a solid waste
 because it is being recycled by being
' used in a manner constituting disposal.
 See 40 CFR 261.2(c)(l). Use constituting
 disposal is defined as application or
 placement on the land in a manner that
 constitutes disposal, or use in
 production of products that are applied
 to or placed on the land or are otherwise
 contained in products that are applied
 to or placed on the land. In the specific
 case in point, the propellant or
 explosive is recycled by being used to
 produce a product (i.e., fertilizer) that is
 applied to the land.
   Since explosives or propellants
 exhibit the hazardous waste
 characteristic of reactivity (see 40 CFR
 261.23), those that become solid wastes
 when recycled would also be a reactive
 hazardous waste (hazardous waste code
 D003). In some limited cases, a
 propellant might also exhibit the
 characteristic of toxicity (see 40 CFR
 261.24), primarily due to the presence of
 metals such as lead. In either case, since
 the propellant or explosive is a
 "recyclable material," the recycling
 would be subject to 40 CFR 261.6—
 Requirements for recyclable materials.
 See 40 CFR 261.6(a)(l). Under 40 CFR
 261.6(a)(2)(i), recyclable materials used
 in a manner constituting disposal are
 subject to the requirements of 40 CFR
 Part 266, subpart C—Recyclable
 Materials Used in a Manner Constituting
 Disposal.
   Under 40 CFR 266.20(b) commercial
 fertilizers that are produced for the
 general public's use that contain
 recyclable materials are not presently
 subject to regulation provided they meet
 the treatment standard under 40 CFR
 Part 268, subpart D, for each recyclable
 material that they contain. In the case of
 propellants or explosives that exhibit
 the characteristic of reactivity (i.e., D003
 wastes), the treatment standard under
 40 CFR 268.40(e). as set forth in the
 table, "Treatment Standards for
 Hazardous Wastes," is deactivation (i.e.,
 rendering the propellant no longer
 reactive as defined under 40 CFR
 261.23). plus treatment of all underlying
 hazardous constituents (as defined in 40
 CFR 268.2(i)) to meet the universal
 treatment standards (UTS), found in 40
 CFR 268.48. In the case of a propellant
 or explosive that also exhibits the
 toxicity characteristic (TC), in addition
 to meeting the requirements for the
 D003 waste code, the waste would also
 have to meet the appropriate treatment
 standard for the TC waste code as set
 out in 40 CFR Part 268, subpart D.
  Thus, the use of an unused explosive
 or propellant as an ingredient to
 produce commercial fertilizer would be
 exempt from regulation under RCRA,
 provided that the fertilizer: no longer
exhibits the characteristic of reactivity;
has had all underlying hazardous
constituents treated to meet the UTS;
and has met the treatment standards for
other applicable hazardous waste codes.
   EPA notes that § 266.202(a)(2) codifies
 EPA's interpretation of how its current
 recycling requirements apply to
 disassembly and recycling of unused
 military munitions. The same principles
 apply to the recycling of commercial
 ammunition.
   It is important to note, however, that
 once the materials recovery activities
 are completed, any remaining residuals
 requiring disposal or treatment prior to
 disposal are solid wastes which, if
 hazardous, would be subject to the
 subtitle C regulations.

 Response to Comments
 .  The Agency received numerous
 comments regarding the  proposed rule
 provisions' identifying when unused
 munitions are not a solid waste. The
 major comments focused on the
 following topics: munitions used for
 their intended purpose, in particular,
 munitions that remain on the ground at
 firing ranges and munitions used for
 training in the destruction of munitions;
 the scope of military personnel training
 regarding minimization of the quantity
 of unused propellant resulting from
 military training; potential health effects
 of open burning; minimum open
 burning standards; the potential for
 "sham" training exercises for purposes
 of disposal; regulation of residue/ash
 from open burning/open  detonation
 (OB/OD) activities; regulation of the
 destruction and cleanup of munitions
 during range clearance activities;
 disassembly of rockets, missiles, or
 torpedoes (which carry the munitions as
 propellant or warhead) as it pertains to
 treatment; applicability of scrap metal
 exemptions to munitions; and reuse of
 explosives as fertilizers (discussed
 above).
   Intended Use. With respect to the use
 of munitions "for their intended
 purpose," the Agency received
 comments that disagreed  with various
 aspects of the Agency's interpretation;
 in particular, that the use of munitions
 at firing ranges and training in the
 destruction of unused propellants are
 "intended use" activities. Commenters
 stated that munitions that impact the
 ground have ceased to be  used for their
 intended purpose, and that their use
 cannot be compared to  the use of
 pesticides since these products continue
 their intended purpose after they are
 applied to the ground.
  Commenters also suggested that,
 because of the potential impact of
 munitions on the environment, EPA
should consider designating munitions
 on the ground as solid waste. But even
the proponents of this view felt the full
current RCRA regulatory scheme (i.e.,
normal RCRA permitting) is

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 6630   Federal Register  /  Vol.  62,  No. 29  / Wednesday, February 12, 1997 / Rules  and Regulations
inappropriate for military ranges,
suggesting that EPA could use a
streamlined permit-by-rule approach
with limited provisions, especially at
active ranges. Commenters suggested
the following limited standards for
ranges (at least for active ranges) so as
not to interrupt range activities related
to the military mission: location
standards (i.e., for wetlands, surface
waters, and proximity to populations);
off-range monitoring (at least surface
and ground waters), remedial responses
to off-range migration, and range closure
plans.
  Several commenters stated that field
sampling had indicated contamination
on ranges. The bulk of the reports that
EPA has reviewed, including those cited
by commenters, do not  provide enough
information to conclude that ground or
surface water contamination does or
does not result from fired munitions on
ranges. This is partly because the
studies or reports do not adequately
document, for example, increases in
contaminant concentrations over
ambient concentrations (i.e.,
background); or that the source was,
indeed, fired munitions; or whether it
might be some other source on or off
range, such as spills or landfills. There
are two exceptions: lead and white
phosphorous from fired munitions on
ranges have been adequately
documented to conclude that these
materials may contaminate surface
water and affect fish and fowl. Although
the lead contamination  cases involved
non-military ranges, the potential for
contamination at military ranges where
lead munitions are fired clearly exists.
The white phosphorous case was a
military range.
  In response to  these comments, EPA
continues to interpret the RCRA Subtitle
C regulations as not extending to
products whose use involves
application to the land,  or where use
necessarily entails land application,
when those products are used in their
normal manner. In EPA's opinion, the
use of munitions does not constitute a
waste management activity because the
munitions are not "discarded." Rather,
the firing of munitions is within the
normal and expected use of the product.
This is the same  position EPA took
regarding the discharge  of ammunition
and expended cartridges in an
interpretive letter by Sylvia Lowrance,
Director of EPA's Office of Solid Waste,
to Jane Magee, Assistant Commissioner
for Solid and Hazardous Waste
Management, Indiana Department of
Environmental Management, Sept. 6,
1988, addressing the issue of the
"applicability of *  * *  RCRA *  *  *
regulations to shooting ranges." This
position was also repeated in the
proposed rule for Corrective Action for
Solid Waste Management Units at
Hazardous Waste Management
Facilities, 55 Fed. Reg. 30798,30809
(1990). At the request of the United
States Court of Appeals for the Second
Circuit, EPA filed a brief as Amicus
Curiae in Connecticut Coastal
Fishermen's Assoc. v. Remington Arms
Co.. etal, (August 28, 1992) discussing
the Agency's views on whether lead
shot and clay target debris deposited on
land and in water in the normal course
of skeet and trap shooting is "solid
waste" under RCRA. In that brief, EPA
repeated its position that regulatory
jurisdiction does not apply to products
that are deposited onto the land in their
ordinary manner of use.
  EPA sees no compelling reason to
alter this longstanding interpretation of
its regulatory definition of the term
"solid waste." Nothing in the language
or legislative history of RCRA section
3004 (y) suggests that Congress intended
or desired that EPA adopt a different
interpretation of "solid waste" with
respect to military munitions.
  Moreover, EPA disagrees with one
commenter's proposition that munitions
are a "solid waste" when they hit the
ground because they have no further
function, unlike pesticides, which
continue to have a function on the
ground. EPA's interpretation focuses on
whether a product was used as it was
intended to be used, not on whether the
purpose of the product is to perform
some function once on the ground. For
example, the use of explosives (e.g.,
dynamite) for road clearing,
construction, or mining does not trigger
RCRA regulation, even though any
residuals on the ground serve no further
function.
  Therefore, the Agency is maintaining
its position that munitions that are fired
are products used for their intended
purpose, even when they hit the ground
since hitting the ground is a normal
expectation for their use. However,
today's rule specifies that fired military
munitions that land off-range become a
statutory solid waste at a certain point,
potentially subject to RCRA remedial
authorities. This point is discussed
further in section H which addresses
military munitions at ranges.
  Training. The Agency received a
number of comments regarding EPA's
view that military munitions used in the
training of military personnel are not a
solid waste.  A number of commenters
raised concerns regarding the training of
military personnel in the burning of
unused propellant increments resulting
from artillery and mortar training.
Commenters pointed out that the
amount of unused propellant destroyed
may equal or exceed the propellant
actually used in firing the weapons, and
that this is contrary to the Agency's and
RCRA's waste minimization goals. EPA
agrees that the quantities of unused
propellant that is burned may equal or
be more than that used in firing
weapons since such propellants are
generally packaged in either five or
seven bags per canister, and often the
size of a training ranges prohibits the
use of all the bags. EPA has concluded,
however, that there is merit to DOD's
argument that to minimize the chances
for confusion and error, military
training should duplicate to the
maximum extent possible the
conditions encountered by military
personnel in combat. Using the actual
canisters and bags (which are of
different sizes) that would be used in
time of war, and training the personnel
in the safe management and expedient
destruction of unused propellant is a
legitimate part of training in the use of
munitions.
  Commenters also raised concerns
regarding the RCRA status of sites used
for training in the burning of unused
propellant bags. Specifically, the
commenters cited elevated incidences of
lung and other cancers that they argued
were possibly due, in part, to military
burning practices. The Agency has
included in the docket for this rule a
number of studies and reports on the
potential impacts from open burning
emissions. A number of commenters
expressed concern that open burning of
unused propellant, as it pertains to
military personnel training,
contaminates the environment.
Concerns of the public particularly
focused on air emissions, although they
also mentioned the burning of
propellant directly on the ground could
lead to soil (and possibly groundwater)
contamination. On the other hand,
studies and reports provided to the
Agency offer contradictory conclusions.
These reports are included in the
Docket.
  In any case, as a precaution, and in
response to these concerns, the Services
often conduct the burning in lined
trenches. Also, in some cases, this
precaution has been required by State
regulators. In other cases, local
opposition to burning of unused
propellant has led individual
installations to abandon the practice
(and in at least one case to abandon
training altogether), or to reduce the
number of increments taken into the
field. Commenters suggested that EPA
require such lined units and perhaps
monitoring and closure plans for these
training units to ensure environmental

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         Federal Register / Vol. 62, No.  29 / Wednesday, February 12, 1997 / Rules  and Regulations   6631
 protection, perhaps through a permit-
 by-rule. Because EPA has determined
 that these are product use activities,
 EPA does not believe that RCRA should
 be used to restrict unit locations or
 compel unit designs.
   Some States and citizens groups
 argued that such burning could lead to
 "sham" training, when the primary
 purpose is really waste disposal.
 Commenters suggested that EPA
 establish criteria for training in the
 destruction of unused propellant bags to
 assure against "sham" training
 exercises, including documentation of
 the training exercises and a minimum
 three year record retention time for all
 such training documentation. The
 Agency has retained the proposed
 approach regarding the training of
 military personnel in the safe burning of
 unused propellants because, as
 mentioned above, EPA has determined
 that (given the unique military activities
 and the need for training) this is an
 aspect of product usage and, therefore,
 should not be regulated under RCRA.
 On the other hand, the Agency reaffirms
 here what was said in the preamble of
 the proposed rule and earlier in today's
 rule, that, to assure against sham
 training, regulators may look for the
 existence and use of training manuals,
 the presence of military trainees, and
 documentation of training activities as
 evidence of legitimate training. Records
 showing evidence of training could
 include, for example, the number of
 personnel trained, the date and time of
 training, military personnel attendance
 lists, and the amount of propellant used
 in training. EPA believes that, should
 activities in a specific training exercise
 be suspect, such procedures and
 documentation would provide  evidence
 that the activity is for training purposes
 rather than waste disposal.
  One  commenter requested that the
 Agency provide a definition of "troop"
 to include DOE security personnel, and
 DOE and DOD contractors. The Agency
 has decided not to add a definition of
 "troop," but to clarify that the terms
 "troop" and "personnel" as used in
today's rule refer not only to DOD
personnel, but also to DOE, Coast
Guard, National Guard, and contractor
personnel who are being trained in the
use of munitions or explosives. In
response, the Agency has deleted
reference to "troops" in preference to
the term "military personnel," and has
added a definition for "military" to the
§266.201 definitions.
  Other comments received regarding
unused propellant bag training
expressed concern over the lack of a
regulatory regime over the ash or
residue left behind after the training,
 and that this ash could present an
 environmental hazard. These
 commenters asserted that this ash
 would not be listed as hazardous waste,
 but might exhibit a characteristic or
 contain hazardous constituents,
 although no data were submitted. As
 mentioned previously, the military often
 conducts these propellant burning
 exercises within a structure that would
 contain residual ash, which is then
 disposed of according to RCRA
 requirements, if hazardous. The Agency
 emphasizes that RCRA 7003 authority
 could be applied to this ash when the
 OB/OD training site or area is closed or
 at any time that it might present an
 imminent and substantial
 endangerment.
   A commenter suggested that these
 OB/OD training areas be regulated
 under the same guidelines as fire
 fighting training pits that require
 permits to operate. The Agency wants to
 make clear that the use of fuel in fire
 training does not require a RCRA
 permit, unless the fire training were to
 use waste fuel. Then the burning would
 be considered RCRA disposal rather
 than the use of a product for its
 intended purpose. The training of
 military personnel in the use of military
 munitions, such as training in the
 proper techniques to burn propellant,
 uses standard, unused propellant. The
 Agency believes it is a reasonable
 interpretation in the context of military
 training to view training in how to burn
 unused propellant safely as not training
 in waste disposal, but rather as part of
 necessary training in product usage.
  Range Clearance, with respect to on-
 range clearance exercises, the Agency
 received a broad range of comments.
Some commenters requested a
 clarification of certain range
management activities. In response, the
Agency has reviewed a host of activities.
In particular, the collection of fired
bullets, including those that contain
lead, at indoor firing ranges, is
considered by EPA to be range
maintenance and not hazardous waste
management activities within the scope
of today's rule. EPA cautions, however,
that  although on-range collection may
not be a waste management activity, the
removal of such materials from the
range may result in the generation of a
solid waste, and the off-range storage
and subsequent treatment or disposal of
such waste may be subject to RCRA
regulation. EPA notes, however, that
lead may be recycled under the scrap
metal exemption of 40 CFR
  Commenters asked if range clearance
activities at transferring, closed, or
transferred ranges were also considered
 within the scope of proposed
 §261.2(g)(3)(iii) since only active,
 inactive, and closing ranges were listed.
 EPA did not generally intend to include
 these range  clearance activities within
 the scope of this proposed section.
 Under the proposal, such range
 clearance activities would not be
 considered within the scope of
 "intended use." EPA has modified the
 proposal slightly in the final rule, at the
 request of one State, by dropping the
 term "closing." EPA made this change
 because, in its view, ranges fall into one
 of three categories: active, inactive, and
 closed. A closing range is merely an
 "inactive" range in the process of
 becoming a  "closed" range. Similarly,
 the rule does not include references to
 "transferring" or "transferred" range
 since these are all either "active,"
 "inactive," or "closed." To help clarify
 this provision, EPA has defined, in
 § 266.201, the terms "military range,"
 "active range," and "inactive range,'
  A commenter raised the concern that
 the inclusion of the word
 "contaminants" with UXO in the .
 context of "intended use" in range
 clearance operations in the proposed
 rule could lead to a broadening of scope
 to cover many remediation activities not
directly associated with unexploded
 ordnance and munitions debris. The
 commenter requested that the Agency
 clarify whether range clearance
 activities may encompass a variety of
 range remediation activities related to
 munitions contamination and media
 cleanup (not limited to UXO  and
debris).  It was not, and is not, the
Agency's intention to broaden the
interpretation of the term "intended
use" as it applies to range clearance or
management activities by the inclusion
of the term "contaminants" in the
regulatory language. In fact, the
proposed preamble clarified the original
intent by using the terms "UXO" and
"debris" when discussing the range
clearance activity. However, in today's
rule, the Agency has used the term
"munitions fragments" instead of either
"contaminants" or "debris" to more
closely reflect the Agency's intent to
limit this provision to the recovery of
munitions fragments (in addition to the
recovery and treatment of UXO). This
provision does not apply to the
remediation of other contaminants
(besides munitions fragments or debris),
including non-munitions related
contaminants, or media (e.g.,  soil,
surface water, or ground water). Also,
the rule clarifies that this range
clearance provision does not  apply to
the management of UXO or munitions
that were buried on a range when the

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 6632   Federal  Register  /  Vol.  62,  No. 29  /  Wednesday,  February  12,  1997 / Rules and  Regulations
burial was not a result of product use,
nor to the burial (i.e., landfill) of
recovered UXO or debris/fragments on a
range.
  Disassembly. A few commenters
requested the Agency clarify the
distinction between the terms
"destruction" and "disassembly,"
especially in the context of RCRA
permitting and "rendering a munition
safe." The term destruction in the
military munitions context generally
means thermal treatment processes such
as incineration, open burning, and open
detonation, but could also include
chemical treatment processes. Such
destructive processes usually require a
RCRA permit, unless exempted under
the emergency response, range
clearance, or intended use provisions in
today's rule. The term "disassembly," in
the context of military munitions,
generally refers to a mechanical or
physical process associated with
dismantling unused munitions (i.e.,
products). The Agency generally does
not consider disassembly to be a waste
treatment process requiring a RCRA
permit, especially when the disassembly
is used in materials recovery activities,
which is often the case. EPA views both
"destruction" and "disassembly" as
ways to "render a munition safe,"
making both eligible for exemption from
RCRA permitting in the emergency
response context.
  A commenter questioned whether the
Department of Energy disassembly
procedures are covered by
§ 266.202(b)(5). Since this section
applies to military munitions, it also
applies to DOE when DOE manages
military munitions.
H. Military Munitions on Closed and
Transferred Ranges
  EPA has decided to postpone final
action on proposed 40 CFR
261.2(g)(4)(i). This proposed provision
would have identified a military
munition left on a closed range or a
range transferred from military control
as meeting the statutory definition of
solid waste in RCRA section 1004(27),
potentially subject to RCRA corrective
action or section 7003 authorities, until
DOD regulations were promulgated
governing the cleanup of munitions on
closed or transferred ranges.
  EPA's decision to postpone action on
this section of the proposal is based in
part on comments the Agency received
on this issue and in part on the fact that
DOD has not yet issued the range
cleanup rule currently under
development (the "DOD Range Rule").
Many commenters questioned EPA's
legal authority to defer RCRA coverage
in favor of DOD regulations governing
the cleanup of closed and transferred
ranges. EPA will conduct further
analyses of the comments and of the
final DOD regulation governing the
cleanup of munitions on closed and
transferred ranges (including an
assessment of whether the DOD Range
Rule is adequately protective); based on
these analyses, the Agency will reach a
final decision on this issue. If either
DOD fails to proceed with the range rule
or EPA finds that the range rule does not
adequately protect human health and
the environment, EPA will be prepared
to address this issue under Federal
environmental laws.
  EPA believes that this interpretative
provision identifying when a discharged
munition on a range becomes a solid
waste under RCRA section 1004(27) is
not a required part of the rulemaking
mandated in RCRA section 3004(y) and,
therefore, is not subject to that section's
statutory deadlines. EPA interprets
RCRA 3004 (y) as only requiring the
Agency to identify the circumstances
under which military munitions become
subject to the regulatory scheme for
identified or listed hazardous waste
promulgated under Subtitle C. The
language of RCRA section 3004 (y) fully
supports EPA's interpretation. Section
3004(y) specifically requires EPA to
identify "when military munitions
become hazardous waste for purposes of
this Subtitle." Proposed §261.2(g)(4) (i)
would have identified when a
discharged munition becomes a
statutory solid waste, but would not
identify when that discharged munition
becomes subject to Subtitle C regulation.

Response to Comments
  EPA received numerous comments on
the proposed regulations for closed and
transferred ranges. Since this part of the
rule is not being finalized in today's
rule, these comments will be addressed
at the time EPA takes final action.
I. When Used or Fired Military
Munitions Become Solid Waste,
Including Military Munitions That Land
Off-Range
  Proposed §261.2(g)(2) has been
revised and finalized in § 266.202(c).
This section clarifies that used or fired
munitions are solid wastes when they
are removed from their landing spot and
then either (1) managed off-range—i.e.,
when transported off-range and stored,
reclaimed, treated, or disposed of, or (2)
disposed of (i.e., buried or landfilled)
on-range. In both cases, once the used
or fired munition is a solid waste, it is
potentially subject to regulation as a
hazardous waste. For example, former
defense installations no longer under
military control (i.e., Formerly Used
Defense Sites or FUDS) sometimes
contain unexploded ordnance or
munitions fragments. Used or fired
munitions removed from their landing
spot and transported off-range would
have to be handled under RCRA Subtitle
C (if they are "hazardous"), except in
emergency situations. Similarly, used or
fired munitions resulting from military
research or training exercises at
locations other than ranges (e.g., in
testing laboratories) would be
considered solid waste when removed
from the site of use and sent to
treatment or disposal. Section
266.202(c) does not finalize one aspect
contained in proposed §261.2(g)(2): that
used or fired munitions that are
recovered and then treated on range at
a closed or transferred range (unless the
transferred range is still in active use as
a range) would be a solid waste
potentially subject to RCRA subtitle C
regulations. This aspect of the rule is
being postponed along with the closed
and transferred range aspect discussed
in section H of this preamble, because
these aspects are so inter-related and
they are both being addressed under
DOD's range rule.
  Today's rule finalizes proposed
§261.2(g)(4)(ii) in §266.202(d). which
provides that munitions that land off
range that are not promptly rendered
safe (if necessary) and/or retrieved, are
statutory solid wastes under RCRA
section 1004(27), potentially subject to
RCRA corrective action or section 7003
authorities. Today's final action is 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, just as the failure
to respond to a spill of a hazardous
material could be evidence of an intent
to discard. "Rendering safe" might
include disarming action to prevent an
explosion as well as destruction of the
ordnance. If remedial action were
infeasible—for example, the off-range
munition wastes could not be removed
because the munition was deeply
buried, located in inaccessible terrain or
could not be located—the operator of
the range would be required to maintain
a record of the event, including the type
of munition that was fired off range and
its location (if known), for as long as any
threat remains.

Response to  Comments
  Munitions Landing Off-Range. Several
commenters expressed concern over the
relative merits of not addressing
munitions on an active range while
addressing munitions that land off a
range. The Agency views these as
distinctly different situations. As
discussed previously, the Agency views

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         Federal Register / Vol. 62, No. 29 / Wednesday. February 12, 1997 / Rules and Regulations   6633
 the firing of munitions that land on
 active ranges as product use. On the
 other hand, munitions that land off
 range that are not promptly rendered
 safe and/or retrieved, are more like a
 spill that is not promptly remediated.
 EPA would consider these munitions to
 be discarded or abandoned, or disposed
 of (i.e., statutory solid waste potentially
 subject to RCRA corrective action or
 section 7003 authorities, and if removed
 for subsequent management, potentially
 subject to the Subtitle C regulatory
 requirements). A munition on an active
 range is where it is intended and
 expected to be, and it is in a controlled
 environment. As such, it is more
 effectively controlled or managed than a
 munition that has landed off-range
 where it normally wouldn't be expected
 to be.

 J. Waste Materials Derived From
 Munitions Manufacture
  As stated in the proposed preamble,
 EPA does not believe that military
 munitions manufacture raises any new
 special regulatory issues that need to be
 addressed by this final rule. One issue
 was raised in the public comments
 pertaining to recycling of secondary
 materials, but this issue is not unique to
 the military. As a result, the Agency has
 decided that any rule changes to
 facilitate recycling of secondary
 materials will be considered in the
 context of a broader, separate
 rulemaking. Therefore, this final rule
 makes no changes to the existing rules
 regarding waste materials derived from
 munitions manufacture.

 K. Chemical Munitions
  In the proposal, EPA solicited
 comment on whether munitions
 scheduled for destruction by
 international treaty or Congressional
 action should be classified as solid
 waste. The Agency continues to believe,
 for reasons discussed in the proposal
 (60 CFR 56485), that these actions
 should not, as a general matter, be
 interpreted as a decision to discard a
 munition. Among other considerations,
 the proposed disarmament conventions
 and Congressional directives do not
 declare these items to be waste, nor do
 they totally prohibit their use or require
their total destruction.

 Response to Comments
  Regarding chemical agents and
munitions, some commenters supported
the proposal stating that any action that
would delay the destruction of chemical
agents and munitions is contrary to the
protection of human health and the
environment, and that in their view the
proposal would not cause such a delay.
 These commenters stated they would
 oppose alternatives that would cause
 delays. Other commenters, however,
 suggested that EPA should complete a
 thorough review of alternative
 treatment/destruction technologies
 before allowing DOD to proceed with
 •the current incineration approach. EPA
 notes that Congress has addressed the
 issue of developing alternative
 treatment or destruction technologies
 through legislation. For a more detailed
 discussion of this issue, see section
 M.2.b below. A few commenters
 supported the proposed position that
 chemical agents and munitions do not
 become solid waste solely by being
 slated for destruction by an Act of
 Congress or treaty. Some commenters
 took the opposite view.
   In developing today's rule, EPA
 continues to believe the position
 discussed in the proposed rule.
 Disarmament conventions and
 Congressional directives to demilitarize
 a weapons system should not be
 interpreted as a decision to discard a
 munition. In many cases, the provisions
 in the treaties or conventions do not
 equate to a decision to discard a specific
 munition in that they allow, for
 example, for implementation schedules,
 retaliatory use, and very specific
 verification procedures that do not
 equate to the process established under
 RCRA.
  In the context of chemical agents and
 munitions, some commenters objected
 to any alternative that would prohibit
 States from being more stringent. As
 discussed elsewhere in this preamble,
 EPA agrees and has not adopted this
 State pre-emption approach.
  A few commenters identified the need
 for listing chemical agents as hazardous
 waste, stating that these are some of the
 most lethal materials in existence, yet
 they are not listed nor (in the
 commenter's view) are they
 characteristic hazardous wastes under
 EPA's RCRA regulations. One
 commenter stated that the Army has
 taken the position that the  explosives
 (e.g., the explosive component of the
 M55 rockets) are a hazardous waste, but
 the agent itself is not. This becomes a
 potential regulatory problem (1) when
 in the demilitarization process the agent
 is separated from the explosives, or (2)
 for any bulk agents.
  In response, EPA notes that five of the
eight chemical stockpile States have
 listed the various chemical agents as
hazardous, and a sixth has done so
through a consent order with DOD
regarding the stockpile facility in that
State. Moreover, based on EPA's
technical review associated with this
rule, the Agency believes that the
 chemical agents and munitions in the
 military stockpile subject to the
 requirement for destruction contained
 in 50 U.S.C. 1521 exhibit at least one of
 the characteristics identified in 40 CFR
 Part 261, subpartC. In addition, DOD  •
 has publicly committed to the
 destruction of these chemical munitions
 and their agents at RCRA permitted
 facilities, and is seeking RCRA permits
 for all their chemical demilitarization
 facilities. Based on these facts, it is not
 the Agency's current intent to list, as
 hazardous waste, these chemical agents
 when they become a solid waste.
  A few commenters felt that emergency
 responses involving chemical
 munitions, especially those involving
 non-stockpiled chemical munitions,
 should not be exempted from the RCRA
 emergency permit requirements. The
 Agency agrees that chemical munitions
 should receive close oversight. EPA has
 evaluated DOD's statutory requirements
 and standard operating procedures
 (SOPs) and has determined that the
 emergency response procedures spelled
 out in today's final rule, in conjunction
 with the DOD statutory requirements
 and SOPs, are sufficiently protective for
 chemical munitions responses. For
 example, the transport and destruction
 of a lethal chemical agent are regulated
 by 50 U.S.C. 1512 and 1512a, requiring
 special approvals by the Secretary of
 Defense and the Secretary of Health and
 Human Services prior to either transport
 or destruction. Further, Congress and
 affected State governors must be
 notified prior to any such destruction or
 transportation. Thus, the standards for
 emergency responses in today's rule—
 including the exemption for immediate
 responses and the requirements for
 emergency permits—would apply in the
 same way to conventional and chemical
 munitions. (See discussion in section P,
 emergency responses.)
  Regarding comments received on the
 storage of chemical munitions, see the
 Response to Comments portion of
 section M of this preamble.

 L. Generator and Transporter Standards
  This final action makes two changes
 to the RCRA generator and
 transportation requirements as they
 pertain to emergency responses to
munitions or explosives emergencies
and to waste military munitions.
  First, §§262.10(i) and 263.10(e)
clarify that persons responding to
emergencies (immediate threats from
explosives and munitions) are not
subject to RCRA generator and
transportation requirements. This
provision codifies a long standing EPA
policy that applies to all explosives and
munitions emergency responses

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 6634   Federal Register / Vol. 62, No.  29 / Wednesday, February  12,  1997 / Rules  and Regulations
 (military and non-military) as well as to
 all conventional and chemical military
 munitions emergency responses. This is
 discussed further in section P entitled
 "Emergency Responses."
   Second, proposed §§ 262.10(i) and
 263.10(d) are being finalized in
 § 266.203 to conditionally exempt from
 RCRA hazardous waste generator and
 transporter requirements (including
 RCRA manifest requirements and the
 container marking requirements of
 § 262.32(b)) waste non-chemical
 military munitions that are shipped
 from a military-owned or -operated
 facility to a military-owned or operated
 TSDF in accordance with the DOD
 shipping controls for military munitions
 (i.e., tracking procedures). This
 provision applies to waste munitions
 that are not chemical munitions or
 chemical agents and that are transported
 by commercial carriers who are under
 contract with the military and have
 signed a contractual compliance
 agreement with the Military Traffic
 Management Command, and who
 operate under the DOD system of
 shipping controls for military
 munitions.  EPA is not extending the
 conditional exemption in § 266.203 to
 persons transporting "military
 munitions" who are not required to
 comply with the DOD military
 munitions shipping controls (e.g., DOE
 or other non-DOD Federal agencies or
 their contractors). This provision also
 does not apply to the transport of waste
 military munitions to a commercial
 treatment, storage, or disposal facility.
 Finally, this provision would not apply
 to waste munitions shipped by the
 military but not under DOD's shipping
 controls designed for its munitions
 inventory.
  This aspect of the conditional
exemption does not apply to treatment,
storage or disposal regulation, and is
available only so long as all conditions
in § 266.203(a)(l) are met. EPA's
decision to  adopt the conditional
exemption approach for identifying
when waste military munitions that are
transported become subject to RCRA's
transportation requirements for
hazardous waste is based on EPA's
conclusion  that it is not necessary to
regulate a waste as hazardous where the
wastes are already adequately regulated,
and reasonable mismanagement
scenarios have thereby been controlled.
  The conditional exemption approach
and the legal basis supporting it is
explained in greater detail below in
section M.I, entitled Conditional
Exemption For Waste Military
Munitions In Storage.
  In deciding to finalize the conditional
exemption approach for the
transportation of waste military
munitions, EPA primarily considered
the existing DOD shipping controls as
well as DOD's munitions transportation
safety record. 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); 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 are DOD
Regulation 4500.9-R—Defense
Transportation Regulation, Part II, Cargo
Movement 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 rule.
  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 CFR 100-179, 350-
399]. DOD has made the DOT standards
mandatory for the transportation of
military munitions (e.g., DOD 4500.9-R
Defense Transportation Regulation Part
II, Cargo Movement, April 1996). EPA
has reviewed these DOD documents and
concludes that the resulting procedures,
in conjunction with the applicable DOT
standards, provide an equivalent level
of protection of human health and the
environment as the requirements of the
RCRA manifest system.
  As a result of these and other controls,
DOD's munitions transportation safety
record is good. DOD makes
approximately 45,000 shipments of
military munitions and explosives
annually, including shipments for
demilitarization (of these shipments,
only a very small percentage would
involve waste munitions, as defined in
today's rule). According to the U.S.
Army Technical Center for Explosives
Safety's Explosives Safety Information
Database and the DDESB's Historical
AccidentDatabase, in the past 20 years,
there have been 18 mishaps involving
commercial carriers of military
munitions in the continental U.S. Of
these, only six accidents resulted in
fires or detonations that affected all or
part of the munitions cargo itself. In
each case, the accident was attributed to
a vehicular malfunction or accident, and
not to the munitions cargo.
  The DOD shipping controls that make
up the § 266.203 conditions are those
adopted by DOD as of November 8,
1995. EPA understands that DOD may
change its shipping controls from time
to time based on new information.
However, in light of the fact that DOD
has a statutory obligation to ensure
proper transportation of munitions, and
to prevent hazardous conditions from
arising that would endanger life and
property  (see 10 U.S.C. § 172), EPA does
not believe that DOD would pursue any
amendments that would lessen
protection of human health and the
environment. In fact, DOD continues to
develop stricter shipping controls to
assure their weapons and components
thereof do not come under the control
of unauthorized individuals. For
example, DOD is developing a new
satellite tracking system due to be fully
operational, worldwide, in the next
several years. Moreover, DOD also has
long had  experience regulating
explosive safety hazards, which directly
affect DOD's own personnel. Further,
today's rule provides that DOD will
publish notice of any amendments to
the DOD shipping controls in the
Federal Register. DOD will also provide
EPA with DOD's determination of
whether the amended shipping controls
are less protective than the current
standards. If EPA in its discretion
determines that revisions to the
conditional exemption in today's rule
are necessary to protect  human health
and the environment, the Agency will
propose such revisions.  Citizens may
also petition for rulemaking under
RCRA section 7004, 42 U.S.C. section
6974, using the procedures set forth in
40 CFR Part 260, subpart C, to request
EPA to revise the RCRA conditional
exemption in light of any amendments
to the DOD shipping controls. Under
today's final rule, DOD amendments to
its shipping controls rules become
effective for purposes of the conditional
exemption only when DOD publishes a
notice in  the Federal Register that its
shipping  controls have been amended.

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         Federal Register / Vol. 62, No. 29  / Wednesday,  February 12, 1997 / Rules and Regulations   6635
   In summary, given the protective
 nature of the DOD shipping controls,
 and the Services' record in providing for
 the safe transportation of military
 munitions, the Agency concludes that
 RCRA hazardous waste regulation is
 unnecessary when waste military
 munitions are transported in
 compliance with DOD shipping
 controls. The regulatory oversight
 created by today's rule provides further
 assurance that the DOD shipping
 controls are followed and protectiveness
 is maintained.
   In enacting RCRA section 3004 (y),
 Congress instructed EPA to identify
 when military munitions become
 hazardous waste subject to Subtitle C
 regulation. Congress also instructed
 EPA, after consultation with the
 Department of Defense and the States, to
 develop storage and transportation
 requirements for such waste military
 munitions that are both protective of
 human health and the environment and
 ensure that they are safely managed.
 Following EPA's consultation with DOD
 and the States, EPA concludes that the
 most reasonable manner of
 accomplishing Congress' goal is to allow
 DOD to continue to transport waste
 military munitions under DOD shipping
 controls, which—when followed—
 provide adequate protection, rather than
 impose a second regulatory scheme that
 adds little in the way of protectiveness.
 Thus, RCRA section 3004(y) further
 supports the approach taken in this
 rulemaking.
  EPA also concludes that specifically
 identifying the conditions under which
 waste military munitions become
 subject to RCRA Subtitle C and
 providing for independent regulatory
 oversight of those conditions adds
 significantly to the reliability and
 protectiveness of the system of DOD
 shipping controls.
  EPA emphasizes, however, that if a
 transporter of waste military munitions
 claims the exemption, but fails to
 transport waste military munitions in
 compliance with the provisions of the
 conditional exemption, the non-
 compliant waste would no longer be
 exempt, so the transporter would be
 subject to additional regulatory
 requirements and could be subject to
 enforcement action (or citizen suit) for
violations of hazardous waste
requirements. For example, where waste
military munitions lose their
conditional exemption due to a
violation of a condition, the transporter
of the waste could face penalties for
transportation of hazardous waste
without a manifest. As a mechanism to
assist in the determination of whether
the transportation of waste military
 munitions is compliant with the terms
 of the exemption, the Agency is
 imposing (in § 266.203 (a) (iv)) a self-
 reporting requirement. Under this self-
 reporting requirement, the transporter
 must provide oral notice to EPA within
 24 hours, when becoming aware of: (a)
 any theft or loss of the waste military
 munitions, or (b) any failure to meet a
 condition of §266.203(a)(l) that may
 endanger human health or the
 environment. The transporter must also
 provide a written report describing the
 conditions of the violation or theft
 within 5 days of learning of it. In
 addition, if any waste military
 munitions shipped under subsection
 (a)(l) are not received by the receiving
 facility within 45 days of the day the
 waste was shipped, the owner or
 operator of the receiving facility must
 report this non-receipt to the EPA
 within 5 days.
   Under § 266.203(c), where the
 conditional exemption has been lost, the
 transporter may apply to EPA to
 reestablish the conditional exemption.
 Once the waste returns to compliance
 with all conditions of the exemption, an
 application for reinstatement of the
 conditional exemption with respect to
 such waste may be filed with EPA. If
 EPA finds that reinstating the
 conditional exemption for that waste is
 appropriate, based on factors like those
 described in § 266.203(c), EPA may
 reinstate the exemption. Reinstatement
 is not automatic, but if EPA does not
 respond to an application within 60
 days, the conditional exemption would
 be deemed reinstated. However EPA
 may terminate the reinstatement at any
 time—even after the 60 period—if it
 finds that the reinstatement is
 inappropriate based on factors like those
 described in §266.203(c).
   EPA emphasizes, however, that the
 generator of waste military munitions or
 explosives must still make the
 determinations identified in 40 CFR
 262.11 in order to comply with the
 provisions of §§266.203 and 266.205
 (discussed below), notably in order to
 know which materials are subject to
 exception reporting and notification
 requirements.
 Response to Comments
  The Agency received numerous
 comments on the proposed exemptions
 from transporter standards for
shipments between military facilities
under the DOD materials transportation
standards. Some commenters objected
to the Agency's reliance on the current
DOD standards for the transport of
unused military munitions as
environmentally protective. The Agency
is convinced that exempting DOD from
 the manifesting requirements is
 protective based primarily on the
 existing and comprehensive internal
 controls that exist and are used within
 the Services to track shipments of waste
 munitions. In addition, DOD's safety
 record provides evidence of the
 effectiveness of the DOD shipping
 requirements and DOD's commitment to
 safe transportation and management.
 Thus, the Agency feels confident that
 reliance on these DOD safeguards and
 practices is protective. Given this, the
 Agency feels the additional burden of
 RCRA manifesting is duplicative and
 unnecessary. Some commenters
 expressed concern that the usual RCRA
 protections implied in the "cradle to
 grave" tracking of hazardous waste
 would not be applicable under this
 approach since manifests (which
 provide this link from cradle to grave)
 are not required. Again, EPA is
 confident that the DOD tracking and
 security system is at least as effective as
 the RCRA manifest in assuring that
 waste munitions are tracked from
 "cradle to grave."
  Some commenters requested
 clarification as to the applicability of
 these exemptions to DOE, Coast Guard,
 and to commercial transportation of
 military munitions. As discussed above,
 the Agency has decided to provide the
 manifest exemption, as proposed, to
 DOD, DOE, the Coast Guard, the
 National Guard, commercial
 transporters and other parties under
 contract to or acting as an agent for
 DOD, who are obligated to operate
 under the DOD shipping requirements.
 The Agency has not provided a similar
 exemption to commercial or other
 Federal transporters who are not subject
 to the DOD transportation standards,
 even if they voluntarily follow the DOD
 standards.
 M. Storage Standards

 1. Conditional Exemption for Waste
 Military Munitions in Storage
  a. Conditional Exemption for Waste
 Non-chemical Munitions. In addition to
 promulgating RCRA storage standards
 for munitions that become regulated
 hazardous waste, EPA is also finalizing
 a'"conditional exemption" approach to
 identify when waste non-chemical
 military munitions become subject to
 RCRA subtitle C storage regulation.
 Through today's rulemaking, EPA is
 endeavoring to ensure the safe storage of
waste munitions while at the same time.
not unnecessarily duplicating or
 impeding existing regulation and
handling of such wastes. While the
Agency believes that the subpart EE
controls, discussed below, are necessary

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  6636   Federal Register  /  Vol.  62, No. 29  / Wednesday,  February  12.  1997  /  Rules and Regulations
 for the storage of waste munitions that
 are not already regulated and for waste
 military munitions that are not managed
 in compliance with existing controls,
 EPA does not believe that subpart EE
 regulations are needed where waste
 military munitions are being properly
 handled in compliance with the
 extensive DDESB standards (and other
 conditions set out in today's rule).
   Accordingly, today's rule provides
 that waste non-chemical military
 munitions that exhibit a hazardous
 characteristic or are listed as a
 hazardous waste are subject to
 hazardous waste storage regulation at
 the point they become solid waste under
 266.202, except when they meet all of
 the conditions set forth in 40 C.F.R.
 266.205(a)(l).
   The conditional exemption in
 § 266.205 applies only to waste military
 non-chemical munitions that are subject
 to the jurisdiction of DDESB (which
 could include military-owned
 munitions at contractor-operated
 facilities), including products that DoD
 detei mines are solid wastes under
 today's § 266.202(b)(4) and unexploded
 ordnance recovered from ranges and
 moved into storage prior to treatment or
 disposal. EPA is not extending the
 conditional exemption option in today's
 rule to owners or operators of storage
 facilities storing non-military waste
 munitions and explosives, nor to
 persons storing "military munitions"
 who are not subject to the jurisdiction
 of the DDESB (e.g., DOE or other non-
 DOD Federal agencies or contractor
 facilities not directly or by contract
 subject to DDESB controls). EPA has
 provided an exemption for "military"
 waste munitions based largely upon the
 fact that DDESB standards apply to and
 are binding on the military, and there is
 an institutional oversight process within
 the military. A similar structure of
 management controls is not present for
 non-military munitions.
  The conditional exemption from
 RCRA storage requirements does not
 apply to transportation, treatment, and
 disposal regulation, and is available   '
 only so long as all conditions in
 §266.205(a)(l)aremet.
  1. Legal Basis for Conditional
 Exemption Approach. EPA's approach
 is based on its view that RCRA § 3001 (a)
 provides the Agency with flexibility, in
 deciding whether to list or identify a
 waste as hazardous, to consider the
 need for regulation. Specifically, RCRA
 § 3001 requires that EPA, in determining
whether to list a waste as hazardous
waste, or to otherwise identify a waste
 as hazardous waste, decide whether a
waste "should be subject to the
requirements of Subtitle C." Hence,
 RCRA § 3001 authorizes EPA to
 determine when Subtitle C regulation is
 appropriate. The statute directs EPA to
 regulate hazardous waste generators
 (section 3002(a)), hazardous waste
 transporters (section 3003(a)), and
 hazardous waste treatment, storage and
 disposal facilities (section 3004 (a)) "as
 necessary to protect human health and
 the environment." By extension, the
 decision of when a waste should be
 subject to the regulatory requirements of
 Subtitle C is essentially a question of
 whether regulatory controls
 promulgated under sections 3002-3004
 are necessary to protect human health
 and the environment.
   EPA has consistently interpreted
 section 3001 to give it broad flexibility
 in fashioning criteria for hazardous
 wastes to enter or exit the Subtitle C
 regulatory system. EPA's longstanding
 regulatory criteria for determining
 whether wastes pose hazards that
 require regulatory control incorporate
 the idea that a waste that is otherwise
 hazardous may not present a hazard if
 already subject to adequate regulation.
 (See, e.g., 40 CFR 261.1 l(a)(3)(x), which
 requires EPA to consider action taken by
 other governmental agencies or
 regulatory programs based on the health
 or environmental hazard posed by the
 waste.) Thus, where a waste might pose
 a hazard only under limited
 management scenarios, and other
 regulatory programs already address
 such scenarios, EPA is not required to
 classify a waste as hazardous waste
 subject to regulation under Subtitle C.
   At least two decisions by the U.S.
 Court of Appeals for the D.C. Circuit
 provide support for this approach to
 regulating wastes as hazardous waste
 only where necessary to protect human
 health and the environment. In Edison
 Electric Institute v. EPA, 2 F.3d 438
 (D.C. Cir. 1993). the court upheld a
 temporary exemption from Subtitle C
 for petroleum-contaminated media
 based on the fact that the potential
 hazards of such materials are already
 controlled under the underground
 storage tank regulations under RCRA
 Subtitle I. In reaching its decision, the
 court considered the fact that the
 Subtitle I standards could prevent
 threats to human health and the
 environment to be an important factor
supporting the exemption.  Id. at 466.
 Similarly, in NRDC v. EPA, 25 F.3d
 1063 (D.C. Cir. 1994), the court upheld
EPA's finding that alternative
management standards for used oil
promulgated under RCRA section 3014
reduced the risks of mismanagement
and eliminated the need to list as a
hazardous waste used oil destined for
recycling.
   This approach is fully consistent with
 RCRA section 3004 (y), which directs
 EPA to identify when military
 munitions become hazardous waste
 subject to Subtitle C regulation. The
 section specifically calls upon EPA—in
 consultation with the Department of
 Defense and the States—to develop
 storage and transportation requirements
 for waste military munitions that are
 both protective of human health and the
 environment and ensure that they are
 safely managed. Following EPA's
 consultation with DOD and the States.
 EPA concludes today that the most
 reasonable manner of accomplishing
 Congress" goal is to allow DOD to
 continue to store waste military
 munitions under DDESB standards,
 which—when followed—provide
 adequate protection, rather than impose
 a second regulatory scheme.
   Thus, RCRA section 3004 (y) further
 supports the approach taken in this
 rulemaking.
   EPA's belief that RCRA section
 3001 (a) provides the Agency with the
 flexibility to consider good management
 practice in determining the need to
 regulate waste as hazardous, is also
 informed by the statutory definition of
 hazardous waste  (section 1004(5)(B), see
 also 40 CFR 261.10(a)). EPA has
 interpreted the statutory definition as
 incorporating the idea that a waste  that
 is otherwise hazardous does not require
 regulation (if properly managed). For
 example, EPA's regulatory standards for
 listing hazardous wastes allow
 consideration of a waste's potential for
 mismanagement (see 40 CFR
 261.11 (a) (3), which incorporates the
 language of RCRA section 1004(5)(B),
 and 40 CFR  261.1 l(c)(3)(vii), which
 requires EPA to consider plausible types
 of mismanagement).
  The legislative history of RCRA
 Subtitle C supports this interpretation,
 stating that "the basic thrust of this
 hazardous waste title is to identify what
 wastes are hazardous in what quantities,
 qualities, and concentrations, and the
 methods of disposal which may make
 such wastes hazardous." H. Rep. No.
 94-1491, 94th Cong., 2d Sess.6 (1976),
 reprinted in A Legislative History of the
 Solid Waste Disposal Act, as Amended,
 Congressional Research Service, Vol.1,
 567 (1991)(emphasis added). This
 approach also finds support in the D.C.
 Circuit's decision in Edison Electric
 Institute v. EPA, 2 F.3d 438  (D.C. Cir.
 1993). In that case, the court remanded
 EPA's RCRA Toxicity Characteristic
 ("TC") as applied to certain mineral
 processing wastes because the TC was
 based on modeling the mismanagement
scenario of disposal in a municipal solid
waste landfill, yet EPA provided

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         Federal Register / Vol.  62,  No. 29 / Wednesday, February 12, 1997 / Rules and Regulations    6637
inadequate evidence that such wastes
were ever placed in municipal landfills '
or similar units. Accordingly, if EPA
were to find that the mismanagement
scenarios of cpncern for a particular
waste were implausible,  the Agency
may find that it is not necessary to
subject that waste to Subtitle C
regulation.
  EPA recognizes that in the early
1980's its interpretation of RCRA's
definition of hazardous waste focused
on the inherent chemical composition of
the waste, and assumed that
mismanagement of such  waste would
occur and would result in threats to
human health or the environment (see
45 FR 33113, May 19,1980). However,
after more than 15 years  of experience
with the management of hazardous
wastes, EPA believes that it is no longer
required—nor is it accurate and fair—to
assume that all inherently hazardous
wastes will be mismanaged, thus
creating the necessity to  regulate them
under subtitle C.
  Indeed, in several recent hazardous
waste listing decisions, EPA identified
potential "mismanagement" scenarios
for both wastewater and  non-wastewater
sources, and then looked at available
data to determine if these
mismanagement scenarios were
plausible given available information
about current waste management
practices.
  In deciding to finalize  the conditional
exemption from RCRA regulation for the
storage of waste military munitions,
EPA considered several factors. First,
and primarily, EPA relies on the fact
that the storage of all military munitions
(including waste munitions) by the
military services is subject to the
specific requirements of existing DDESB
standards for the management of
military munitions. While these
standards have safety as the primary
concern, 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, though 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
unit closure requirements). Based on its
review (which has been placed in the
docket), EPA does not believe these gaps
undermine protection of human health
and the environment in any significant
way, or that the superimposition of
RCRA specific standards would
significantly increase protection. The
DDESB standards ("DOD Ammunition
and Explosives Safety Standards," DOD
6055.9-STD) are in the docket for
today's rulemaking, and may also be
obtained by contacting the DOD
Explosives Safety Board. 2461
Eisenhower Ave, Room 856-C,
Alexandria, VA 22331-0600. These
DDESB standards provide design and
operating standards that, in part,
minimize the potential for explosions
and minimize the impact should an
explosion occur, based on four factors
that relate to the physical and chemical
characteristics of these materials: (1)
compatibility groupings, (2) hazardous
class, (3) net explosive weight (NEW),
and (4) quantity distance formulae. The
EPA analysis "A Comparison of RCRA
Storage Requirements with DOD
Requirements for Storage of Military
Munitions," EPA. October 31, 1995, is
in the docket for this rulemaking (and
was available for public comment
during the comment period for this
rule).
  The applicability of these standards to
waste military munitions in storage is
the major reason for EPA's belief that—
in specified circumstances—it is not
necessary to subject these wastes to
RCRA storage regulation.
  Second, EPA believes that specifically
identifying the conditions under which
waste military munitions become
subject to RCRA Subtitle C, and
providing for independent regulatory
oversight of those conditions, adds
significantly to the reliability and
protectiveness of the system of DDESB
standards.
  Third,  EPA believes that the fact that
the DDESB standards generally apply to
military munitions and, if violated, can
have significant consequences, provides
further assurance that the conditions for
exemption will be met. For instance, if
a member of the military is found to
have violated the DDESB standards, that
person is subject to military disciplinary
actions. Safety Standards for Storage of
Explosives and Ammunition, 41 Op.
Att'y Gen. 38 (1949).
  Finally, EPA has reviewed
documentation concerning incidents
involving the handling of DOD
munitions, and continues to believe that
DOD has a good safety record in storing
all military munitions (including
"waste" munitions, which constitute a
tiny fraction of the overall quantity of
munitions managed by DOD). Certainly,
there have been incidents over the years
that involved munitions detonation, in
some cases leading to injury or property
damage. However, few if any of these
incidents involved waste munitions.
Moreover, given the vast quantity of
munitions managed by DOD and the
dangerous nature of the material, EPA
concludes that the safety record has
been good, and furthermore, that
regulation under RCRA subtitle C is
unlikely to significantly improve that
record.
  In summary, given the protective
nature of the DDESB standards, and the
Services' record in providing for the safe
storage of military munitions, the
Agency believes that RCRA subtitle C
regulation is not necessary for waste
military munitions managed in
compliance with these standards. The
regulatory oversight created by today's
rule provides further assurance that the
standards are followed and
protectiveness is maintained.
  2. Implementation and Enforcement
Issues. It is important to emphasize that
if a military facility claims the
conditional exemption in
§ 266.205(a)(l). but fails to store waste
military munitions in compliance with
the provisions of that exemption, that
facility's mismanaged waste, and any
unit in which that waste was
mismanaged, would no longer be
exempt. Accordingly, the facility would
be subject to additional regulatory
requirements (e.g., a RCRA storage
permit) and could be subject to
enforcement action (or citizen suit) for
violations of hazardous waste
requirements.
  As a mechanism to determine if the
units used to store waste munitions are
in compliance with the terms of the
exemption, the Agency is imposing (in
§ 266.205(c)) as a condition for the
exemption a self-reporting requirement.
Under this self-reporting requirement,
the owner or operator must provide oral
notice to EPA within 24 hours, when
the owner or operator becomes aware of:
(a) any loss or theft of the waste military
munitions,  or (b) any failure to meet a
condition of § 266.205(a)(l) that may
endanger human health or the
environment. The owner/operator must
also provide a written report describing
any failure to comply with any
condition for the exemption, or a loss or
theft, within 5 days of learning of it.
  When a violation of 266.205 (a) occurs,
the waste in question automatically
loses its exemption. Under 266.205 (c),
the owner or operator may apply to EPA
to reestablish the conditional exemption
once the waste returns to compliance
with all conditions of the exemption.
Depending  on the circumstances, EPA
may, in its discretion and considering
factors such as those described in
§ 266.205(c), reinstate the exemption.
Reinstatement is not automatic, but if
EPA does not act on  an application
within 60 days, the conditional
exemption would be deemed to be
granted. However, EPA may, after

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 6638    Federal Register / Vol. 62. No.  29 / Wednesday. February  12,  1997 / Rules and  Regulations
 considering appropriate factors such as
 those provided in § 266.205(c), revoke
 an exemption reinstated by default at
 any time, even after the 60 period.
 Reinstatement decisions will be made
 by the Director (as defined in 40 CFR
 270.2). Any owner or operator who
 claims that EPA reinstated the owner/
 operator's conditional exemption must
,be able to demonstrate that the
 reinstatement has been approved by the
 Director.
   Further, as a mechanism to enable the
 regulatory agency to know which wastes
 and which storage units are subject to
 oversight under this approach, EPA has
 established a requirement for a
 notification within 90 days of when a
 storage unit is first used to store waste
 military munitions for which the
 conditional exemption is claimed.
   In order for the regulatory agency to
 know when a storage unit will no longer
 be used to store waste military
 munitions subject to § 266.205(a),
 § 266.205(b) requires DoD to notify the
 appropriate regulatory authority of that
fact.
   3. Amendments to DDESB Standards.
The DDESB storage standards that make
up the §266.205(a)(l) conditions are
those adopted by the DDESB as of
November 8, 1995. EPA understands
that the DDESB may change its storage
standards from time to time. However,
in light of the fact that DDESB has a
statutory obligation to ensure proper
storage of munitions, and to prevent
hazardous conditions arising from
storage of munitions that would
endanger life and property (see 10
U.S.C. § 172), EPA does not consider it
likely that DDESB would pursue any
amendments that would lessen
protection of human health and the
environment. DDESB also has a long
experience regulating explosive safety
hazards, which directly affect DOD's
own personnel. Further, today's rule
provides that DOD will publish notice
of any amendments to the DDESB
storage standards in the Federal
Register. DOD will also provide EPA a
preliminary determination of whether
the amended standards are less
protective than the current standards. If
EPA in its discretion determines that
revisions to the conditional exemption
in today's rule are necessary to protect
human health and the environment, the
Agency will propose such revisions.
Citizens may also petition for
rulemaking to request EPA to revise  the
RCRA conditional exemption in light of
any amendments to the DDESB
standards (see RCRA section 7004(a),
and 40 CFR 260.20).
  EPA understands that DOD officials
have authority, in some circumstances,
 to grant waivers or exemptions from
 DDESB standards for military
 munitions, where necessitated by
 strategic or other compelling reasons.
 However, EPA believes that a waiver for
 waste military munitions could be
 inconsistent with the basis for the
 conditional exemption established by
 today's rule. Therefore, a waiver from
 otherwise applicable DDESB storage
 standards will terminate the eligibility
 of affected waste munitions for the
 conditional exemption, subject to
 reinstatement by EPA pursuant to
 § 266.205(c). The existence of a waiver
 will not preclude the owner or operator
 from storing waste military munitions in
 compliance with the requirements of 40
 CFR Parts 264 or 265, subpart EE.
   b. Waste Chemical Munitions 1.
 Applicability of RCRA Requirements to
 Waste Chemical Munitions. "Chemical
 agents and munitions"  are defined as in
 the Department of Defense
 Authorization Act of 1986, 50 U.S.C.
 1521 (j)(l); this statute is the
 comprehensive congressional scheme
 for the management and ultimate
 destruction of chemical agents and
 munitions.
   Under the original 1980 RCRA
 regulations, and under today's federal
 RCRA regulations, a waste is hazardous
 if it is specifically listed as a hazardous
 waste, or if it exhibits a hazardous
 characteristic such as reactivity. See 40
 CFR Part 261, subparts B and C.
 Chemical agents and munitions become
 hazardous wastes if (a) they become a
 solid waste under 40 CFR 266.202, and
 (b) they are listed as a hazardous waste
 or exhibit a hazardous waste
 characteristic;  chemical agents and
 munitions that are hazardous wastes
 must be managed in accordance with all
 applicable requirements of RCRA.
  Based on EPA's technical review
 associated with this rule, the Agency
 believes that the waste chemical agents
 and munitions in the military stockpile
 exhibit at least one of the characteristics
 identified in 40 CFR 261 subpart C.
 These chemical waste agents and
 munitions would be hazardous wastes,
 required to comply with RCRA
 requirements. (Note that even though
 the characteristic nature of waste
 chemical agents and munitions may not
 have been well understood in the past,
 the Department of Defense has, as a
 matter of policy and/or State law, been
 managing these waste chemical agents
 and munitions in compliance with
 RCRA requirements, and subject to
 RCRA permits.)
  2. Inapplicability of Conditional
Exemption. EPA is not extending the
conditional exemption in §266.205 (a) (1)
to waste chemical agents and munitions.
 This decision should not be construed
 as a negative assessment of DOD's
 standards or management of chemical
 agents and munitions. Indeed, DOD has
 a sound record for the safe storage of
 chemical munitions and agents. This
 decision is based on the Agency's belief
 that chemical agents and munitions are
 more akin to other types of chemical
 waste that RCRA typically regulates
 than are waste conventional weapons.
 In addition, as noted above, waste
 chemical agents and munitions are,
 either because of State law or DOD
 policy, already stored in RCRA
 regulated units and the public has come
 to expect that. EPA sees no reason to
 disrupt the current situation.
   3. Inapplicability of RCRA Storage
 Prohibition. EPA is today codifying its
 interpretation that RCRA section 3004 (j)
 does not apply to waste chemical agents
 and munitions. (See § 266.205 (d) (2) of
 today's rule.)
   By way of background, RCRA section
 3004(j) prohibits the storage of
 hazardous waste for which one or more
 methods of land disposal are prohibited,
 unless such storage is for the sole
 purpose of accumulating quantities
 needed for proper recovery, treatment,
 or disposal. Edison Electric Institute v.
 EPA, 996 F.2d 326 (D.C. Cir. 1993).
 Land disposal restrictions have been set
 for waste exhibiting any of the
 hazardous waste characteristics, and
 thus the storage prohibition would, on
 its face, appear to apply to waste
 chemical agents and munitions that
 exhibit a characteristic. Congress
 enacted section 3004 (j) in 1984 because
 it "believed that permitting storage of
 large quantities of waste as a means of
 forestalling required treatment would
 involve health threats equally serious  to
 those posed by land disposal, and
 therefore, opted in large part for a 'treat
 as you go' regulatory regime." Id. at 329
 (quoting Hazardous Waste Treatment
 Council v. EPA, 886 F.2d. 355, 357 (D.C.
 Cir. 1989). The fact that treatment or
 disposal capacity for a waste does not
 exist or is inadequate is not enough, by
 itself, to overcome the storage
prohibition. Id. at 336.
  However, in the case of chemical
 agents and munitions, Congress has—
 subsequent to enactment of section
 3004 (j)—statutorily limited DOD's
 ability to move waste chemical agents
 and munitions from storage to treatment
 and disposal; EPA believes that this
 demonstrates Congress' intention that
 the storage prohibition should not apply
 to waste chemical agents and munitions.
  Specifically, in 1985, one year after
 enacting RCRA section 3004(j). Congress
established a comprehensive scheme for
the management and ultimate

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         Federal Register / Vol.  62.  No. 29  /  Wednesday.  February  12,  1997 / Rules and  Regulations   6639
destruction of waste chemical agents
and munitions. See 50 U.S.C. section
1521. That scheme, which Congress has
updated and amended repeatedly in
intervening years, requires detailed
study of destruction options for the
chemical agents and munitions, and
provides for destruction of the chemical
agents and munitions to be completed
by a set date. See, e.g.. 50 U.S.C. section
1521 (a), (b), and (d). As originally
enacted, Congress required destruction
of the chemical agents and munitions by
September 30, 1994, but Congress has
extended that deadline recently to
December 31, 2004. 50 U.S.C. section
1521(b)(5). Congress has further
required that certain studies be
completed prior to destruction (see, e.g.,
50 U.S.C. section 1521(d)); Pub. L. No.
180, 100th Cong.. 1st Sess., section
125(b), (c), (d) (Dec. 4, 1987), 101 Stat.
1019, 1043,1044). During this mandated
study phase, during construction of the
destruction facilities (see 50 U.S.C.
section 1521(c)(l)(B),(2)), and while
destruction is ongoing, Congress
necessarily envisioned that these waste
chemical agents and munitions would
be stored. Indeed, Congress specifically
required DOD annually to assess and
report "how much longer the stockpile
can continue to be stored safely." 50
U.S.C. section 1521(g)(3)(C)(l).
  Highlighting that Congress did not
intend these agents and munitions to be
destroyed until completion of a process
to ensure environmentally safe
destruction, Congress last year
specifically prohibited construction of
chemical weapons incinerators at two of
eight storage sites, pending study, of
other destruction alternatives. See
Omnibus Consolidated Appropriations
for 1997, Pub. L. 208, 104th Cong., 2d
Sess., section 8065, reprinted in 9A
U.S.C.C.A.N. 396, 397 (Nov. 1996).
Congress also has restricted
transportation of chemical agents and
munitions, so that chemical agents and
munitions cannot be transported from a
storage facility that lacks disposal
capacity to a storage facility that might
have such capacity. See id. at 397-98;
see also 50 U.S.C. section 1512, 1521a.
  In light of the detailed Congressional
plan for destruction of the chemical
agents and munitions, and their
necessary storage pending destruction,
EPA believes that Congress could not
intend the prohibition on storage in
RCRA section 3004 (j) to apply to
chemical agents and munitions. EPA
believes that the issuance of this
interpretation is necessary to reconcile
the otherwise conflicting provisions of
two federal statutes, and is within EPA's
mandate under RCRA section 3004 (y) to
issue regulations that provide for safe
storage of waste chemical agents and
munitions.
  This interpretation is an interpretative
rule that reconciles specific, existing
statutory provisions; under 5 U.S.C.
section 553(b)(3)(A), it is not subject to
formal public notice and comment
rulemaking procedures.
  2. Subpart EE. As noted above, EPA
believes that RCRA regulatory controls
are necessary for waste munitions not
already regulated, and for waste military
munitions that are not being managed in
compliance with the comprehensive
DDESB standards. At the same time,
however (and as discussed in the
proposed rule on waste munitions),
EPA's view is that the specific RCRA
regulations currently applicable to
hazardous waste storage units (e.g., the
container and tank standards) are not
the best fit for waste munitions and
explosives. Rather, the Agency has
developed a tailored version of the
RCRA storage standards to better reflect
the nature of waste munitions and
explosives, and to ensure that the
regulatory requirements do not interfere
with the safe handling of these
materials. See 60 FR 56479 (November
8, 1995).
  The Agency has clear authority under
section 3004 (a) to establish storage
standards "as necessary to protect
human health and the environment";
the storage standards presently in 40
CFR Part 264 were designed to cover
conventional waste management units
such as tanks and  containers; today's
subpart EE standards are focused on the
storage of hazardous waste munitions
and explosives in magazines designed
for explosive materials. Accordingly,
EPA is finalizing proposed subpart EE
in 40 CFR Parts 264 and 265 for waste
military munitions and commercial
munitions and explosives that have
become hazardous waste subject to
subtitle C.
  EPA has modified proposed subpart
EE in one substantive respect. In
response to suggestions by some
commenters, the Agency is extending
subpart EE applicability to hazardous
waste non-military munitions and
explosives, as well as to hazardous
waste military munitions and
explosives. EPA believes this change is
reasonable because the subpart EE
performance standards are equally
appropriate for non-military munitions
and explosives, which closely resemble
certain military munitions (e.g., small
arms ammunition). As noted in the
proposed rule, this subpart combines
the environmental features of the
existing RCRA storage unit standards
with performance standards based  on
the DOD Explosives Safety Board
(DDESB) munitions storage standards
(which are contained in DOD 6055.9-
STD—DOD Ammunition and Explosives
Safety Standards) to minimize potential
inconsistencies or conflicts between
RCRA regulatory requirements and
DOD's explosives safety standards. (This
is consistent with the mandate in RCRA
section 3004 (y) to address both
protectiveness and safety.) It is equally
important to ensure that owners and
operators of storage facilities for non-
military waste munitions and explosives
have a unit standard that considers both
the traditional RCRA concerns and the
need to assure explosives safety.
  Subpart EE is not the exclusive
manner for storing hazardous waste
munitions or explosives, but rather,
provides an alternative for the storage of
hazardous waste munitions and
explosives under RCRA. Depending on
the explosive hazards, a facility owner
or operator may still seek a storage
permit for waste  munitions and
explosives under the already existing 40
CFR parts 264 and 265 standards for
other types of storage units, including
containers (subpart I), tanks (subpart J),
and containment buildings (subpart
DD). An owner or operator would apply
for a permit under the most appropriate
of these standards.
  In developing the subpart EE
standards, the Agency carefully
examined the DDESB standards, which
have been developed to protect against
explosions and to minimize the impact
if one should occur, and in doing so
EPA concluded that the DDESB
standards are generally protective of
human health and the environment. The
subpart EE standards include the three
basic designs of magazines that are
found in the DDESB storage standards:
(1) earth-covered magazines (ECMs)
(which are frequently used for shock
sensitive and other munitions), (2)
above ground magazines (AGMs) (which
might be used for munitions that do not
pose a mass detonation or fragment
producing hazards), and (3) outdoor or
open storage areas (typically for
munitions that do not pose a significant
potential for explosion).
  Today's rule also establishes design,
operation, monitoring, inspection,
closure, and post-closure care standards
consistent with the standards for other
RCRA storage units. These standards set
containment and control performance
standards to prevent contamination of
soil, ground-water, surface waters, and
the air. The standards require 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

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 6640 _Federal Register / Vol. 62. No. 29 / Wednesday,  February 12. 1997 / Rules and Regulations
 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, a pervious
 base, and/or waste elevation.
   For those few waste munitions that
 are liquids, in addition to the primary
 barrier or container, the subpart EE rules
 require units to be equipped with a
 secondary containment or vapor
 detection system. The secondary
 containment or vapor detection system
 design, operation, controls, and
 monitoring features may include a
 combination of sumps, pumps, drains,
 slope, double-walled containers or
 tanks, overpacks, and/or elevated waste
 or other features that provide that any
 released liquids are contained or
 promptly detected so that an
 appropriate response may be taken (e.g.,
 additional containment, such as a
 container overpack, or removal from the
 waste area). For liquid and liquid-filled
 waste munitions (e.g., the stored waste
 chemical munitions), the Agency
 considers the storage of the munition
 inside a sealed storage casing as a means
 of achieving secondary containment.
   Monitoring and inspections are
 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 under subpart EE
 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 (where
 practicable). When "clean closure"
 cannot be accomplished, the landfill
 closure and post-closure standards
 apply.

 Response to Comments
  EPA received numerous comments on
 proposed subpart EE and the three
 alternatives that EPA proposed in the
 preamble to the proposed rule.
 Regarding subpart EE, some commenters
 said it is too general to be effective,
whereas others supported it, some
saying it should be expanded to be
available for all munitions and
explosives storage, not just military and
not just munitions since the other
existing storage standards under RCRA
are not as tailored or specific to
explosives. Regarding the former
comments, EPA believes the advantage
 of general performance standards is that
 they allow flexibility in establishing site
 specific design and operating standards.
 40 CFR part 264, subpart X, is an
 example of a RCRA Subtitle C
 performance standard. The disadvantage
 of performance standards as pointed out
 by the commenters is the lack of
 specificity. In the case of subpart EE,
 however, EPA has included some
 specificity (e.g.. secondary
 containment). Also, the DDESB
 standards or other applicable standards
 (e.g., DOE, Coast Guard, NASA, BATF)
 and Standard Operating Procedures
 (SOPs)  may be incorporated as
 appropriate to add specificity in the
 development of permit standards. Since
 there are so many standards and SOPs
 for munitions and explosives, both in
 the private and public sectors, this
 approach provides the flexibility to
 incorporate these without having
 restrictive or conflicting RCRA
 standards. Commenters asked if military
 or other SOPs would be subject to
 regulator review. To the extent that they
 are used in the subpart EE permit, they
 would be subject to regulator and public
 review during the permitting process,
 and when incorporated into a RCRA
 permit,  they become regulatory
 requirements. Regarding the comments
 supporting expanding the coverage of
 the proposed  subpart EE, EPA concurs
 and has expanded the applicability of
 subpart EE in the final rule to make it
 an available option for the storage of all
 waste munitions and explosives. For
 this reason, subpart EE has been
 retained in parts 264 and 265 rather
 than in the new part 266, subpart M.
   Several commenters felt that EPA
 should require storage permits for all
 chemical munitions, not only because
 they felt these should be classified as
 wastes (this comment was discussed in
 section K of this preamble), but because
 extra precautions are needed for these
 particularly hazardous chemicals. In
 response, EPA has decided not to allow
 the storage of waste chemical agents and
 munitions to be eligible for the
 conditional exemption from storage
 permits  under today's rule. Instead, a
 subpart  EE or other waste management
 permit is required for these wastes. EPA
 notes, however, that DOD has in place
 strict procedures for the storage of all
 chemical munitions, including waste
 chemical munitions. For example, all
chemical munitions and bulk agent
storage is currently maintained within a
special high security area at each
installation. Extensive precautions are
used to control entry to these storage
areas. Munitions containing explosives
are stored  in earth-covered magazines
 (ECMs) designed to protect their
 contents from blast and shrapnel effects
 of the potential detonation of a
 neighboring magazine. Most munitions
 without explosive components, and
 bulk containers containing isopropyl
 methylphosphonoflouridate (referred to
 as GB) and phosphonothioic acid,
 methyl-S-(2-(bis(l -methylethyl))-
 amino)ethyl-O-ethyl ester (referred to as
 VX), are also stored in ECMs. The
 exceptions include VX ton containers
 and spray tanks, both of which are
 stored in above ground magazines
 (AGMs). One ton containers of mustard
 agent are stored in either ECMs, AGMs,
 or outdoor storage areas. Chemical
 munitions other than 1-ton containers
 are stored in configurations generally
 suitable for transport during wartime.
 These configurations include boxes,
 protective tubes, or metal overpacks,
 and all are on pallets. The stacking
 arrangements and aisles inside the
 storage facilities are generally designed
 and maintained so that units in each
 stack can be inspected, inventoried, and
 removed for shipment or maintenance,
 as necessary. Periodic surveillance
 monitoring, safety inspections, indoor
 air monitoring, maintenance of
 munitions for safety-in-storage, and
 inventory activities are routinely carried
 out on these stored munitions.
   Also, there have been no catastrophic
 accidents associated with the storage of
 chemical munitions, and the risk of
 release to the public has been reduced
 due to the 1969 cessation of live firing
 and the implementation of close
 restrictions on the disposal and
 movement of chemical munitions. There
 are, however, cases where deterioration
 of the containers has resulted in leaking
 of agent from a munition. When this
 occurs, the munitions are over packed
 in hermetically sealed containers and
 placed in specially designated and
 monitored magazines. Even with such
 incidents, in the past 40 years there
 have been no known cases of exposure
 to personnel not directly engaged in
 agent operations.
  Some commenters suggested that
 subpart EE be expanded for waste
 gaseous chemical warfare agents to
 require secondary containment and to
 prohibit outdoor storage. EPA notes that
 chemical warfare agents are stored as
 liquids, not gases, and therefore the
 secondary containment or vapor
 detection system requirements in
 today's rule apply.
  EPA does not see the need to prohibit
 outdoor storage of any waste munitions
 in subpart EE so long as those waste
munitions will not be left in standing
precipitation, and, if liquid, have
secondary containment or Vapor

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           Federal Register  /  Vol.  62,  No. 29  / Wednesday.  February  12,  1997  /  Rules and Regulations   6641
 -detection system, as is required by
  subpart EE.
    DOD commented that EPA should
  allow a vapor detection and response
  system as an alternative to secondary
  containment for liquid waste chemical
  munitions and agents since these
  materials leak as vapors before they leak
  as liquids and such early detection and
  response provides for protection that is
  comparable to secondary containment.
  EPA agrees, and as discussed in the
  section on subpart EE above, EPA has
  provided for the use of a vapor detection
  and response system in finalizing
  subpart EE. In addition to the subpart
  EE standards, chemical waste military
  munitions are also subject to additional
  procedures and requirements regarding
  monitoring or secondary containment.
  At facilities that manage chemical
  weapons, DOD has both a monitoring
  and a visual inspection protocol that is
  designed to allow early detection of any
  leakage from a chemical munition. The
  monitoring includes both regularly
 scheduled sampling of the air in all
 units storing chemical munitions, as
 well as monitoring of the air within the
 storage unit whenever personnel are to
 enter the unit. Should there be a release
 of agent, these monitoring protocols will
 detect minute amounts of vapor release
 (which typically occurs before any
 liquids are released). Should a release
 be detected, the munitions within the
 storage units are inspected to locate the
 leak and the release is contained. If the
 source cannot be located immediately,
 the ammunition storage unit is sealed
 and the air filtered and monitored until
 the source is located. Once a leaking
 chemical munition is isolated, it is
 overpacked in a specially designed
 container that re-establishes an intact
 barrier between the agent and the
 environment. If a container with liquids
 (e.g., an M55 rocket) leaks inside its
 sealed  shipping tube, and if the primary
 barrier (e.g., the rocket casing) has been
 permanently compromised, but the
 shipping tube is intact, DOD typically
 overpacks the rocket in order to place
 two intact barriers between the liquid
 and the environment, an action
 consistent with the secondary
 containment requirements found in
 other unit standards under RCRA. Upon
 completion of the overpacking activities
 and associated decontamination
 procedures, the storage area is
 monitored to assure complete
 decontamination.
   Commenters sought further
* clarification of the status of shipping
 containers and overpacks as secondary
 containment for liquid-filled waste
 munitions. It is EPA's view that the
 secondary containment requirement for
 waste munitions may be met by a
 shipping or storage container or
 overpack around a non-leaking
 munition or container since it places a
 second barrier between the liquid and
 the environment. Multiple overpacks (a
 current DOD practice) are permissible to
 meet this requirement.
   Some commenters (mostly the
 regulated community) favored the first
 proposed alternative or the "deferral"
 option under which munitions would
 not under any circumstances be
 considered a RCRA hazardous waste
 based on the current storage practices of
 DOD, which are protective of human
 health and the environment. Other
 commenters questioned this
 alternative's legal basis  and opposed
 this approach because it would remove
 all non-DOD oversight. EPA agrees with
 the latter commenters on both counts
 and has not adopted this approach.
   The Agency received  comments
 raising concerns about a contingent
 management approach.  The Agency's
 thinking on this issue is set out in
 today's preamble and a detailed
 response can be found in the docket.
 N. 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 the installation first
 having received a RCRA permit
 modification.
   Under today's rule, a number of
 formerly unregulated munitions might
 now be deemed to be wastes, and thus
 potentially subject to these off-site
 permit restrictions (see discussion in the
 preamble to proposed rule). Under the
 existing regulations (40 CFR
 270.42(d)(l)). this modification would
 arguably have  to follow the procedures
 for a Class 3 modification, requiring
 approval before implementation.
 Alternatively, the permittee might
 request that the modification be
 reviewed by the regulatory agency as a
 Class 1 or Class 2 modification. DOD
 maintains that this situation would
 cause a serious disruption of its
 munitions management program.
  To address this concern, this final
 rule allows permitted facilities with off-
site prohibitions to continue to receive
from off-site sources munitions that
have been newly defined as solid waste,
provided there is timely  notification  to
the permitting authority  (in the form of
 a Class 1 permit modification request),
 followed by a Class 2 permit
 modification request. Under this
 procedure, the facility may continue to
 accept waste munitions from off-site
 sources until the permitting authority
 makes a final decision on the Class 2
 permit modification request. This
 approach is consistent with the permit
 modification rules for newly regulated
 wastes(40  CFR 270.42(g)).
   There are three specific requirements
 that are attached to this provision and
 are codified today at 40 CFR 270.42(h).
 First, to be covered under this
 provision, the facility must be in
 existence on the date today's rule goes
 into effect and must already have a
 permit to handle the waste munitions.
 Second, the facility must submit a
 request for a Class 1 permit modification
 that seeks an amendment or removal of
 the permit restriction on off-site waste.
 The Class 1 permit modification request
 must be submitted on or before the date
 when the waste munitions become
 subject to hazardous waste regulatory
 requirements. (Today's rule becomes
 effective in unauthorized States six
 months from the date of publication; in
 authorized States, State law would
 determine the effective date.) This
 timely Class 1 submittal would allow
 the facility to continue to receive off-site
 waste munitions after the effective date
 without the need for prior approval by
 the permitting authority. Third,
 following submission of a Class  1 permit
 modification request, the facility would
 have an additional six months following
 the effective date of this rule to submit
 a Class 2 permit modification request for
 the removal of the off-site waste
 prohibition. Following submission of
 the Class 2 modification, the facility
 would be allowed to continue to accept
 waste munitions from off-site sources
 until such time as a final decision to
 grant or deny the modification is made.
  EPA's two-step approach recognizes
 that military munitions that were
 previously  handled at certain stages as
 non-waste might, under today's rule, be
 considered waste. This two-step process
 allows DOD to continue managing its
 munitions with a minimum of
 disruption, while recognizing the need
 for the modification of those permits
 that restrict the acceptance of waste
 munitions from off-site sources.
  The proposed rule provided an
 opportunity for DOD, before the  180-day
 deadline to submit a Class 2 permit
modification application, to request the
permitting agency to allow an extension
for a specified period. In today's final
rule, EPA has decided not to provide for
such an opportunity for two reasons.
First, this is inconsistent with

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 6642   Federal Register / Vol. 62, No. 29 / Wednesday,  February 12. 1997 / Rules and Regulations
 §270.42(g) which addresses permit
 modifications for all newly regulated
 wastes and units to which this situation
 is analogous. Second, this Class 2
 permit modification request is, perhaps,
 the simplest and most straightforward of
 all types of requests likely to be
 submitted under this section, so to
 provide an opportunity for extension is
 unnecessary.
   Today's final action does 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.

 Response To Comments
   A number of commenters said it
 would be inappropriate for EPA to
 adopt DOD's alternative approach as
 described in the proposed notice
 (whereby a material is not deemed to be
 a waste until received at the treatment/
 destruction unit) because this approach
 would undo by national rule provisions
 that currently exist in a number of
 permits that prohibit the receipt of off-
 site waste, and because this would
 ignore or circumvent the right and duty
 of State regulatory agencies to issue site-
 specific permits based on public
 participation. Furthermore, a number of
 commenters maintained that the
 modification of a permit restriction
 regarding off-site wastes should be
 processed as a Class 3 modification
 requiring full public participation rather
 than as a Class 1 or 2 permit
 modification. These commenters argued
 that permit modifications to remove off-
 site waste restrictions could create the
 need for additional modifications
 regarding changes in waste streams or
 quantity limitations. Commenters
 specifically expressed concern that no
 waste should be allowed to be received
 from off-site unless the receiving facility
 is "prepared and equipped" to comply
 with the standards for off-site facilities.
  In adopting the approach in today's
 rule, the Agency's main concern is that
 any modification of existing permit
 conditions restricting off-site waste be
 done in a way that provides for public
 participation. Thus, the Agency concurs
with the comments opposing the
 "alternative proposal" of declaring the
transported material as a waste when it
reaches the "front door" of the
treatment or disposal unit.
  In response to commenters
recommending the Class 3 permit
modification procedures, expressing
concern that other permit conditions
might change, or that facilities might not
be prepared to receive the "new" waste
munitions, EPA is clarifying the
 applicability of the off-site permit
 modification provisions in today's rule.
 The procedures of new § 270.42(h),
 allowing a Class 1 modification
 submittal followed by a Class 2
 modification request, apply only to
 changing a permit condition that
 prohibits receipt of off-site wastes.
 Section 270.42(h) of today's rule does
 not allow facilities to receive munitions
 that they were not already receiving at
 the time of the rule's effective date. It
 only allows facilities to continue to
 receive munitions newly classified as
 hazardous waste. Today's rule also does
 not affect the classification of, or
 process for, other types of permit
 modifications (such as acceptance of
 different wastes or changes in permitted
 quantity limits) that might occur at a
 facility. Those other types of
 modifications will continue to be
 evaluated in accordance with 40 CFR
 § 270.42 and Appendix I to 40 CFR
 §270.42.—i.e., the facility must follow
 the appropriate procedures for
 whichever class of modification—Class
 1, 2, or 3—applies.
   In conclusion, given the very narrow
 scope of the changes allowed under
 § 270.42(h), EPA believes that it is not
 necessary to require Class 3 permit
 modifications in this rule. In situations
 of high public concern, Class 2
 procedures already allow the regulating
 agency tp elevate the process to a Class
 3.

 O. Environmental Justice
   Today's rule addresses environmental
justice concerns by providing standards,
 while not specific to environmental
justice, that are protective of human
 health and the environment regardless
 of the population potentially impacted.
 In addition, DOD as well as all Federal
 agencies, is subject to the President's
 Executive Order No. 12898 on
 Environmental Justice.

 Response To Comments
  Several commenters raised
 environmental justice concerns. The
 comments focused primarily on military
 contamination caused by ordnance
 landing on ranges formerly owned by
Native Americans or Hawaiians, or
landing off-range on Native American or
Hawaiian lands. The commenters stated
that these lands should be cleaned up
and, as appropriate, returned, citing
cultural, economic, safety, justice, and
social reasons, observing that
indigenous peoples have a special
relationship to their land and that
relocation is not an option. Seven
environmental justice examples were
mentioned in the public comments.
These examples are located in Alaska,
 California (2), Hawaii, Nevada, Oregon,
 and South Dakota. A brief description of
 each of these was provided in the
 comments.
   In response, EPA has prepared a
 report summarizing these comments
 and cases, and referred it to DOD. A
 copy of this report is available in the
 Docket for this rule-making. DOD has
 created an environmental justice
 program to evaluate and respond to
 these concerns and has appropriated $8
 million in each of the past three fiscal
 years to support this effort.
   In addition, in developing this final
 rule and in helping DOD develop its
 range cleanup rule, EPA feels the
 environmental justice concerns raised
 by the commenters for munitions and
 contaminants landing or migrating off-
 range, and on closed and transferred
 ranges, will now be addressed, resulting
 in an increased protection of human
 health and the environment. For
 example, some commenters referred
 specifically to munitions that land off
 range. Today's rule retains, in
 §266.202(c)(3), the "off-range" response
 provision of the proposed rule. This is
 expected to help communities,
 including Native American
 communities, which are located
 adjacent to ranges. In addition, EPA is
 working with DOD in the development
 of DOD's Range Rule, which will
 establish a process for taking inventory,
 accessing, and cleaning up closed,
 transferring, and transferred ranges.

 P. Emergency Responses
   Today's final rule also clarifies that
 RCRA generator, transporter, and permit
 requirements do  not apply to immediate
 responses to threats involving
 munitions or other explosives. EPA is
 now codifying a long standing Agency
 policy to address concerns of DOD and
 other emergency response officials that
 RCRA requirements may impede
 emergency responses, especially by
 causing delays or confusion. As stated
 in the preamble to the proposed rule,
 the current RCRA rules exempt
 emergency responses from full permit
 requirements in two ways. First, permits
 (including emergency permits) are not
 required for immediate responses to a
 discharge of hazardous waste or to an
 imminent and substantial threat of a
 discharge (§§264.1(g)(8), 265.1(c)(ll),
 and 270.1(c)(3)). After the emergency is
 determined to be over, however, any
 additional waste management may be
subject to RCRA regulation. Second, 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

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         Federal Register / Vol. 62, No.  29 / Wednesday. February 12. 1997 / Rules and Regulations    6643
 waste. This permit may be issued orally,
 if followed by a written emergency
 permit within five days, and may not
 exceed 90 days in duration. See 40 CFR
 270.61.
  Today's rule clarifies that EPA
 considers immediate or time-critical
 responses to explosives or munitions
 emergency responses to be an
 immediate response to a discharge or
 imminent and substantial threat of a
 discharge of a hazardous waste under 40
 CFR 264.1(g)(8), 265.1(c)(ll), and
 270.1(c)(3). Such responses are,
 therefore, exempt from RCRA
 permitting, and other substantive
 requirements, including emergency
 permits, conducting risk assessments for
 OB/OD permits under 40 CFR part 264,
 subpart X, and interim status
 requirements under 40 CFR part 265,
 subpart P. If an immediate response,
'however, is clearly  not necessary to
 address the situation, and a response
 can be delayed without compromising
• safety or increasing the risks posed to
 life, property, health, or the
 environment, the responding personnel,
 if time permits, should consult with the
 regulatory agency regarding the
 appropriate course  of action (e.g.,
 whether or not to seek a RCRA
 emergency permit under § 270.61, or
 regular facility permit under 40 CFR
 Part 270). Situations where an
 immediate response is  needed would
 include instances where the public or
 property is potentially  threatened by an
 explosion. Situations where an
 immediate response is  clearly not
 necessary would include instances
 where the public or property are not
 threatened by a potential explosion (e.g.,
 in remote areas such as some former
 ranges or where immediate action is not
 necessary to prevent explosion or
 exposure). In these  cases, there is time
 to consult with the  EPA or State
 regulatory agency on how to proceed.
  Sections 264. l(g)  (8) (i)(D),
 265.1(c)(ll)(i)(D), 266.204, and
 270.1(c)(3)(i)(D) make it clear that
 explosives or munitions emergencies,
 including those involving military
 munitions, are exempt from RCRA
 permitting (including emergency
 permitting). This final action also
 clarifies, in §§ 262.10(i) and 263.10(e),
 that, if an emergency response specialist
 at the site determines it to be
 appropriate, the explosive material may
 be removed and transported to a safer
 location to be defused, detonated, or
 otherwise rendered safe 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 at a
 military installation. Transportation
onto a military base is, however, subject
to the requirements of 10 USC section
2692. Transporters shall consult with
appropriate military authorities
regarding 10 USC section 2692
requirements. This final action, which
EPA believes is necessary to allow
prompt response to explosives
emergencies, is consistent with current
EPA policy.5
  Today's rule also finalizes three new
definitions in § 260.10 to help clarify
the scope of this exemption. The
definition of "explosives or munitions
emergency" describes in detail what
constitutes an emergency, and clarifies
that an emergency situation includes
suspect situations with significant
uncertainties, including improvised
explosive devices (lEDs, e.g., home
made bombs). The definition of
explosives or munitions emergency also
states that the "explosives or munitions
emergency response specialist" is
responsible for determining whether an
emergency exists.
  An "explosives or munitions
emergency response specialist" is
defined to include all military and non-
military personnel  trained in the
identification, handling, treatment,
transport, and destruction of explosives
or conventional and chemical military
munitions. Explosives and munitions
emergency response specialists include
DOD Explosives Ordnance Disposal
(EOD) personnel, who are trained to
respond to emergency situations
involving military munitions and
explosives, DOD Technical Escort Unit
fTEU) personnel, who are trained to
respond to chemical munitions
emergencies, and DOE, National Guard,
and Coast Guard specialists 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 explosives or
munitions emergency response
specialists include trained personnel in
the Bureau of Alcohol, Tobacco, and
Firearms (BATF), Federal Bureau of
Investigation (FBI), Central Intelligence
Agency (CIA), Drug Enforcement
Administration (DEA), U.S. Postal
Service (USPS), Federal Aviation
Administration (FAA), other parts of the
Department of Transportation (DOT).
and the Department of Interior (DOI).
  ' Interpretive letter from EPA (Director. Office of
Solid Waste) to the Bureau of Alcohol. Tobacco,
and Firearms. August 11, 1988. p.4.
State and local enforcement and
emergency response personnel and
private sector explosive specialists also
qualify.
  Finally, an "explosives or munitions
emergency response" is defined as all
immediate response activities identified
and carried out by the emergency
response specialist to eliminate the
threat, including all handling, render-
safe (e.g., methods to defuse or separate
the initiator from the explosive),
transportation, treatment (e.g., by
placing the explosive in water), 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.
Response to Comments
  DOD requested that EPA exempt the
object of an explosive or munitions
emergency response from the regulatory
definition of solid waste. EPA disagrees
since such material is often clearly a
RCRA solid waste (e.g., a buried
munition). DOD questioned whether
temporary storage for extenuating
circumstances (e.g., adverse weather,
nightfall, or safety considerations)
would be allowed under the emergency
response. EPA concurs that temporary
storage for such extenuating
circumstances are within the emergency
response exemption from a RCRA
permit.
  A number of commenters questioned
the status of any residuals in the soil
from emergency responses. EPA
believes the responsibility for any
hazardous residuals is a factual
determination dependent upon the
circumstances surrounding the
emergency event. Responsibility could
rest with the person who left or
abandoned the munition or explosive,
the landowner, or, possibly, the local
authorities. For purposes of this
regulation, EPA does not consider
emergency response personnel to  be
generators of residuals resulting from
immediate responses, and,  therefore,
emergency response personnel are not
subject to the regulations governing
such generators, unless they are also the
owner of the object. In the case of an
EOD unit responding to an incident
involving a military munition, the EOD
units are not typically the "owner" of
the munition nor are they typically the
responsible organization for a military
installation. Thus, in those cases that
involve military munitions, the EOD
unit would not be responsible for
addressing any residual contamination;
however, DOD, the military Service, or

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 6644   Federal  Register  /  Vol.  62,  No. 29 / Wednesday, February 12, 1997  /  Rules and Regulations
 other organization (e.g., DOE) would be
 potentially liable for any remediation of
 residual contamination. In EPA's view,
 it would be counterproductive to die
 public safety and the compelling need
 for immediate action to require that
 emergency response personnel
 contemplate the environmental liability
 that might result from their response to
 an explosives or munitions emergency.
 However, after the emergency response
 is concluded, any residuals are subject
 to 40 CFR 262.11 (hazardous waste
 determination), and if hazardous, to the
 rest of 40 CFR parts 260 through 270.
 The owner of the object of an emergency
 response; die owner of die property on
 which die object of an emergency
 response rests or where die emergency
 response initiates; or die requestor for
 an emergency response is responsible
 for addressing any residual
 contamination diat results from an
 emergency response. For example, if die
 residuals are hazardous and resulted
 from an emergency response involving a
 military munition, then die military
 would be responsible for such residuals.
 Also, it is not die intent of today's
 regulation to impose liability on
 response personnel to clean up
 residuals associated widi donor
 explosives used to destroy die object in
 an emergency response.
  On a broader scale, DOD raised three
 concerns regarding die regulation of
 emergency responses involving
 munitions or explosives under RCRA:
 (1) die effect of die RCRA land disposal
 restrictions on response actions; (2)
 possible RCRA corrective action
 liabilities; and (3) die possibility diat
 treatment permits would be required for
 areas "routinely" used to handle
 emergencies. To  die extent diat any of
 these issues would delay or complicate
 responses to emergencies involving
 explosive material, EPA shares DOD's
 concerns. EPA's objective in issuing
 today's rule, and in clarifying die
 applicability of RCRA to emergency
 responses, is to remove regulatory
 impediments  to emergency responses
 and to promote die safe and prompt
 management of explosives and
munitions emergencies. EPA agrees
with DOD that any regulatory
 impediments  to prompt responses
should be removed. DOD's three
concerns are specifically discussed
below.
  Concerning die first issue—die
application of die RCRA land disposal
restrictions (LDRs) to explosives
emergencies—EPA has limited die
applicability of LDR treatment standards
for reactive wastes widi respect to
unexploded ordnance and other
explosive devices diat are die object of
 an emergency response. While die
 reactive waste must be deactivated,
 treatment of underlying constituents is
 not required. (See die table, Treatment
 Standards for Hazardous Wastes, 40
 CFR part 268, subpart D, which
 identifies deactivation as die sole
 treatment requirement for "unexploded
 ordnance and other explosive devices
 which have been die subject of an
 emergency response.") Thus, an
 emergency response specialist does not
 need to be concerned widi die LDR
 requirements requiring treatment of
 underlying hazardous constituents
 when determining die course of action
 in an emergency response. EPA notes,
 however, diat emergency responses
 present issues diat are different from
 routine management of reactive wastes,
 where there is no competing
 consideration of need for immediate
 action to prevent an imminent threat.
 Thus, in non-emergency response
 situations, die LDRs do apply. See 61 FR
 15568-15569, April 8.1996. EPA also
 notes, however, diat DOD is still
 responsible for any residues diat remain
 after an emergency response diat
 involves military munitions.
  EPA continues to regard open
 burning/open detonation as treatment,
 not constituting land disposal. See 51
 FR 40580 (November 7,1986) and 52 FR
 21011  (June 4. 1987). Widi regard to
 emergency responses to explosives
 involving deactivation or destruction
 mediods odier dian open bum/open
 detonation, EPA notes diat die treatment
 standard for reactive wastes is
 deactivation (i.e., removal of die
 hazardous waste characteristic of
 reactivity). See 40 CFR 268.42, Table 1.
 These standards are consistent widi
 typical responses of an EOD team to an
 explosives emergency, and dierefore die
 RCRA treatment requirements would
 not present a problem.
  The responding agencies' primary
 concern on die second issue—die
 applicability of RCRA corrective action
 requirements—is die possibility diat
 they might incur an obligation to clean
 up unrelated contamination elsewhere
within die facility boundaries when
 they conduct an emergency response. In
 response to tiiis concern, EPA
 emphasizes diat emergency response
 actions are exempt from RCRA
 permitting regulations, and, dierefore,
 do not trigger RCRA corrective action
 requirements. The RCRA corrective
 action authorities in sections 3004 (u),
 3004 (v), and 3008(h) apply only to
 RCRA permitted or interim status
facilities. Thus, tiiese requirements
would apply only if die emergency
response took place at a RCRA
permitted or interim status treatment,
 storage, or disposal facility, and in this
 case, any responsibilities for corrective
 action would fall on die facility owner,
 rather dian on die responding authority.
 Furthermore, RCRA corrective action
 requirements do not apply to actions
 taken under die immediate response
 provisions of 40 CFR 264.1(g)(8),
 265.1(c)(ll), and 270.1(c)(3). Finally, in
 die case of a response conducted under
 a RCRA emergency permit (40 CFR
 270.61), RCRA corrective action
 requirements would be excluded under
 40 CFR 270.6 l(b) (6). This provision
 requires diat emergency permits exclude
 conditions that would be inconsistent
 widi die emergency situation diat die
 permit was addressing. EPA discussed
 tiiis 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
 section 107(d)(l) provides diat no
 person "shall be liable under this tide
 for costs or damages as a result of
 actions taken or omitted in die course of
 rendering care, assistance, or advice in
 accordance widi die National
 Contingency Plan ('NCP') or at die
 direction of an onscene coordinator
 appointed under such plan, widi respect
 to an incident creating a danger to
 public healtii or welfare or die
 environment as a result of any releases
 of a hazardous substance or die tiireat
 diereof."
  DOD's concern on die third issue is
 diat, if die responding agency
 repetitively transported explosive
 devices to a particular off-site treatment
 area, a regulator might decide diat such
 a routinely used area should be subject
 to RCRA permitting requirements. In
 emergency situations, DOD EOD teams
 and otiier responding agencies often
 find it  safer to move explosive material
 away from die site where it was found—
where  it may tiireaten people or
 property—and transport it to an EOD
 range. In such cases, die fact that die
material can be transported to anodier
 location does not necessarily mean diat
die dangerous situation is under control
or diat die emergency is over. Ratiier, it
indicates a need to  find an area where
site access is controlled and die site
conditions are known (e.g., die distance
to  nearby structures is adequate and
there are no subsurface utilities),.so diat
die material can be disarmed, defused,
deactivated, or destroyed widi
confidence diat an explosion will not
cause injury or collateral damage. In
previous guidance,  EPA has stated diat
off-site treatment of explosives during
emergency responses is not subject to
permit requirements, as long as die

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        Federal Register / Vol. 62. No. 29 / Wednesday.  February  12,  1997 / Rules  and Regulations   6645


treatment 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 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.

Q. Manifest Exemption for Transport of
Hazardous Waste in Lieu of "On-Site"
Redefinition
  In the November 8, 1995 proposal.
EPA proposed to reduce the burden on
generators and TSDFs situated on
contiguous properties that are split by
public or private right-of-ways (e.g.,
roads) by proposing that the definition
of "on-site" found at 40 CFR 260.10 be
modified.6 Based on the comments
received and the complex issues raised
related to the definition of "on-site," the
Agency has determined that an
alternative approach is warranted to
reduce the burden associated with
shipments of hazardous waste to
contiguous properties under the same
ownership.
  Under the current RCRA Subtitle C
regulations, if a waste movement
remains "on-site," the waste is not
required to be accompanied by a
manifest during transportation, and the
40 CFR part 263 transporter
requirements do not apply to the waste.
See 40 CFR 262.20(a), and 263.10 (a)
and (b). However, under the current
regulations, waste generated at one
location and transported along a
publicly accessible road for temporary
consolidated storage or treatment on a
contiguous property also owned by the
same person is not considered "on-site"
transport and would require a Uniform
Hazardous Waste Manifest (form 8700-
22A) and must be transported by a
transporter with an EPA Identification
number. These requirements for
  6 The current 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."
manifesting and transporting hazardous
waste do not apply if the wastes are
transported directly across, rather than
along, the public road. The proposed
modifications would have expanded the
definition of "on-site" to include
contiguous properties divided by public
or private right-of-ways even if access to
the properties is by traveling along (as
opposed to across) the right-of-way to
gain entry.
  The proposed change to the definition
of "on-site" arose in the context of
military munitions because many
military installations are on properties
that are. under the DOD "open" base
policy, split by "public"  roads. Because
many other facilities (e.g., universities
or industrial complexes)  are also located
on large parcels of land divided by
public or private right-of-ways, the
proposed change was extended to
hazardous waste generators and TSDFs
in general.
  EPA received extensive comment on
the proposed modification to the
definition of "on-site." These comments
are discussed in more detail in the
response to comments section below.
While almost all commenters were
supportive of the concept of allowing
transportation without a manifest
between contiguous properties
controlled by the same person, a
number of commenters raised questions
related to the effect changing the
definition of "on-site" would have on
other issues such as the assigning of
EPA Identification Numbers to
generators, generator status, and other
RCRA regulations and definitions. As
stated in the proposal, the Agency did
not intend to affect requirements other
than those directly related to the
manifest and transportation. See 60 FR
56483-56484 (November 8, 1995). In
considering the original  purpose of the
proposed change to the definition of
"on-site" and the complexity of the
questions that were raised by
commenters, the Agency has identified
an alternative method of finalizing the
requirements for transportation without
a manifest between contiguous
properties controlled by the same
person, that avoids the concerns raised
by commenters.
  Therefore, the Agency is not finalizing
the proposed modification of the
definition of "on-site." Instead, the
Agency is adding new §  262.20(f) to 40
CFR Part 262, subpart B  to exempt from
the manifest requirements shipments of
hazardous waste on right-of-ways on or
between contiguous properties and
along the perimeter of contiguous
properties controlled by the same
person. This manifest exemption is
applicable to all generators, both
military and non-military. Section
262.20(0 also restates the exemption
found in the current definition of "on-
site," i.e., manifests are also not
required for transport between non-
contiguous property when the
properties are owned and  controlled by
the same person, and connected by a
right-of-way to which the public does
not have access. The Agency is not
changing regulations regarding transport
on public roads between non-
contiguous properties.
  40 CFR Part 262, subpart B lays out
the general manifesting requirements
that apply to generators who transport,
or offer for transportation, hazardous
waste for off-site treatment, storage, or
disposal. (Subpart B also contains an
exemption for generators of 100-1000
kilograms  of hazardous waste per month
from all of the requirements of subpart
B of Part 262 with respect to the
Uniform Hazardous Waste Manifest,
provided the waste is reclaimed under
certain conditions. See 40 CFR
262.20(e).
  New 40  CFR § 262.20(0  adds another
exemption from the manifesting
requirements, for the movement of
hazardous waste on public roads within
or along the border of contiguous
property that is divided by a public or
private right-of-way. Additionally,
under 40 CFR 263.10(a), use of a
transporter with a Hazardous Waste
Identification number is not required for
the movement of hazardous waste
because of this manifest exemption. At
the same time, the Agency recognizes
that generators and TSDFs taking
advantage of this exemption must be
able to respond to an emergency should
one occur during the movement of
hazardous waste on public roads within,
between, or bordering contiguous
properties. As a result, under
§262.20(0, the Agency is  specifying that
the transporter requirements found at
§ 263.30 and § 263.31 concerning
responding to discharges of hazardous
waste on a public right-of-way will
continue to apply to any discharge of
hazardous waste on a public right-of-
 wa
  ay.
  Further, the Agency has established
 contingency and emergency response
 protocols that require facilities to be
 prepared for emergencies that occur on-
 site. 40 CFR 262.34(a)(4) requires large
 quantity generators to comply with the
 requirements for owners or operators
 found at 40 CFR part 265 subparts C
 (Preparedness and Prevention) and D
 (Contingency Plan and Emergency
 Procedures), with the requirements at
 § 265.16 for personnel training, and
 with the waste analysis plan
 requirements at 40 CFR 268.7(a)(4).

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 6646   Federal Register / Vol.  62, No. 29 / Wednesday. February  12,  1997 / Rules and Regulations
 Similarly, small quantity generators are
 subject to reduced emergency
 preparedness, response, and reporting
 requirements that are laid out in
 § 262.34 (d) (5)  and are also subject to the
 preparedness and prevention
 requirements found at 40 CFR part 265,
 subpart C.
   These contingency and emergency
 response protocols include measures
 that are designed to ensure that
 emergencies that take place are handled
 efficiently and effectively. They include
 the designation of an emergency
 coordinator who is accessible and who
 is knowledgeable about the operations
 and activities at the location and who
 can coordinate emergency response
 measures. These provisions also require
 that all employees at a site are familiar
 with the proper waste handling and
 emergency response procedures relevant
 to their responsibilities during normal
 facility operations and emergencies.
 Large quantity generators are
 responsible for developing a
 contingency plan that, among other
 things, must contain a description of
 emergency arrangements agreed to by
 local police departments, fire
 departments, hospitals, contractors, and
 State and local emergency response
 teams to coordinate  emergency services.
 This plan must be reviewed and
 immediately amended under certain
 circumstances as specified in 40 CFR
 265.54. including when the applicable
 regulations are revised and when the
 facility changes in a way that materially
 increases the potential for fires,
 explosions, or  releases of hazardous
 waste or changes the response necessary
 in an emergency. Additionally, should
 an emergency occur, the  emergency
 coordinator must be able to assess any
 hazards from the release, and help
 appropriate officials decide whether
 local areas should be evacuated.
  Generators taking advantage of the
 manifest exemption  being finalized
 today must, therefore, consider how the
 emergency coordinator is to  be kept
 informed of waste movement activities
 under the new circumstances involving
 shipments on public roads without a
 manifest, and how an emergency on a
 public road within, between, or on the
 perimeter of contiguous properties is to
 be managed so that it minimizes
exposure to local areas surrounding the
property.
  Whether waste no longer subject to
the manifest and transportation
requirements described above is subject
to Department  of Transportation (DOT)
hazardous material shipping
requirements will depend on whether
that material is regulated under any
DOT hazard class other than materials
 classified by DOT as "hazardous waste."
 As mentioned in the proposed rule, the
 Hazardous Materials Regulations (HMR,
 49 CFR parts 171-180) 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 RCRA manifest requirements, it is
 not considered a "hazardous waste" by
 DOT. However, such material is still
 regulated as a "hazardous material" and
 is subject to the HMR if it meets the
 defining criteria for one or more of the
 DOT hazard classes. Therefore, for these
 shipments on public right-of-ways,
 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 171-180
 is required.
   EPA believes that this exemption from
 the Uniform Hazardous Waste Manifest
 will result, on balance, in an increase in
 protection of human health and the
 environment EPA believes that the
 current requirement that a manifest be
 completed and that a hazardous waste
 transporter be used to transport
 shipments between contiguous
 properties may be discouraging
 consolidation within a generator's or
 TSDF's site,  resulting in more locations
 where potential exposure to hazardous
 waste exists and more expense by the
 generator or TSDF. Removing barriers to
 consolidation of waste in one central
 area should reduce the possibility that
 the public and the environment could
 come into contact with hazardous waste
 because one area is easier to control and
 can be better located than numerous
 smaller areas.
  EPA also believes that facilitating
 central consolidation will allow
 generators and TSDFs to locate such
 consolidation sites in more remotely
 located areas or in areas allowing faster
 emergency response than they would if
 confined to the boundaries within right-
 of-ways, thereby increasing public
 safety should an accident occur. The
 new exemption at 40 CFR 262.20(f)
 gives generators and TSDFs such as
 military bases and universities more
flexibility to determine where
 consolidation areas are situated. In
addition, EPA believes, along with
numerous commenters, that this
exemption will have the added benefit
of facilitating the building of safer
accumulation areas because generators
and TSDFs may be more likely with
limited resources to exceed regulatory
requirements for consolidation areas if
they are responsible for fewer
consolidation sites overall.
   Since 40 CFR part 263, under
 § 263.10(a), only applies to transporters
 subject to a manifest under part 262, the
 persons transporting wastes under
 today's § 262.20(f) are exempt from part
 263 (most notably from the § 263.11
 requirement for a transporter
 identification number), except as
 discussed above, § 262.20(f) requires
 compliance with §§ 263.30 and 263.31
 for immediate action in response to a
 discharge.
  Today's rule also exempts the
 generator from § 262.32(b) for certain
 container marking requirements, but not
 from the DOT packaging, labeling,
 marking, or placarding requirements of
 §§262.30. 262.31. 262.32. and 262.33
 because these public roads are still
 considered by EPA to be "off-site"; nor
 from the §262.34(a)(2) and (3). (c)(l)(ii)
 and (2), (d)(4). and (e) container and
 tank labeling requirements. Section
 262.34 regarding accumulation time is
 not affected by today's rule because the
 definition of "on-site" is not being
 changed. Section 262.40 regarding
 requirements to keep copies of
 manifests is not included in the rule
 because it is not applicable since the
 manifest is not required. The biennial
 report requirements in § 262.41 are
 likewise unchanged by today's rule.
  EPA believes the totality of these
 changes regarding the applicability of
 the "manifest system" (when
 considered with the existing emergency
 prevention and response, etc.
 requirements, the continued
 applicability of §§ 263.30 and 263.31,
 the facilitated storage consolidations,
 the marking requirements in § 262.34,
 the continued applicability of the DOT
 hazardous materials standards, in most
 cases, and the fact that this
 transportation is on or along contiguous
 property controlled by the same person,
 as discussed above), are consistent with
 the directives in RCRA sections 3002(a)
 and 3003(a) that EPA establish
 regulations "as may be necessary" to
 protect human health and the
 environment.

 Response to Comments
  The Agency received numerous
 comments on the proposed redefinition
 of "on-site" in two main areas: (1) The
 proposed change to the basic definition
 of "on-site" and its impact on current
 hazardous waste management practices
 and (2) issues associated with
 Department of Transportation (DOT)
 and CERCLA protectiveness on public
 access roads separating a larger facility.
 EPA also requested comments on
whether other requirements of the
RCRA program would be affected by a
redefinition of "on-site."

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         Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997  /  Rules and Regulations   6647
   With respect to the proposed changes
 to the definition of "on-site," almost all
 the commenters supported the concept
 behind the proposed redefinition—the
 manifest exemption. (Many of these,
 however, suggested simplified language
 for redefining "on-site.") Only one
 commenter (associated with the
 transporters) opposed the proposal,
 although three commenters suggested
 postponing the final rule until a more
 thorough analysis could be done. Even
 so, the Agency received many
 comments raising issues about other
 requirements unrelated to the manifest
 that might be affected by changing the
 definition of "on-site." For example,
 many of the commenters who supported
 the idea of changing the definition of
 "on-site" raised questions about how
 the change would affect EPA
 Identification Numbers, Land Disposal
 Restrictions paper work requirements,
 corrective action, and generator status.
 One of the most common questions was
 whether the proposed change to the
 definition of "on-site" would cause a
 change in generator status due to the
 merging of several individual locations
 into one larger location under the new
 definition.
   One commenter who questioned the
 proposed change to the definition  of
 "on-site" expressed concerns about the
 redesignation of sites based on the new
 definition and specifically asked
 whether adjacent military facilities (e.g..
 Army and Air Force) would be
 considered "on-site" under the new
 definition. The commenter also
 expressed concern over the effect such
 a redefinition would have on sites
 currently on the National Priorities List
 (NPL) that are contiguous to properties
 not on the NPL. Another commenter
 who questioned the proposed change
 argued that some universities wanting a
 permit to store hazardous waste for
 more than 90 days may find that the
 entire campus is subject to corrective
 action because of a change in the
 definition of "on-site." Several
 commenters argued for a more thorough
 evaluation of the impacts on the related
 terms "site" and "off-site," the effects of
 the proposed definitional change on
 definitions such as "facility," the
 relationship to the term "designated
 facility" found at §260.10, the impact
 on accumulation provisions found  at
§ 262.34 and the impact on the current
definition of "transfer facility" found at
§260.10.
  The Agency agrees with these
commenters that a change to the
definition of "on-site" could cause a
great deal of confusion in many areas of
RCRA and CERCLA that are based on
the concept of "site" and "facility." In
 addition to causing confusion, such.a
 change might also inadvertently make
 substantive changes to a number of parts
 of the RCRA program other than
 manifesting and transportation. As
 stated in the proposal, EPA did not
 intend to affect requirements other than
 the requirement that a manifest
 accompany hazardous waste shipments
 and whether pan 263 transportation
 requirements apply. Therefore, after
 reviewing the comments received on
 this issue, EPA has decided to avoid the
 potential for unforeseen, adverse
 consequences and is not changing the
 definition of "on-site."
   The Agency does, however, continue
 to believe that it is appropriate to revise
 the regulations to allow transport along
 public and private right-of-ways that
 divide contiguous properties without
 manifests and the need to use hazardous
 waste transporters. Thus, the Agency
 has identified an alternative way to
 make this change to the regulations
 without causing potentially unintended
 consequences of changing the definition
 of "on-site." This alternative modifies
 40 CFR Pan 262, subpart B, to exempt
 shipments of hazardous waste on and
 along the perimeter of contiguous
 properties controlled by the same
 person from the manifest requirements.
 This change avoids any revision to the
 definition of "on-site." The Agency
 reiterates that this revision is a change
 only to the applicability of manifesting
 and 40 CFR 263 requirements and does
 not make any changes to the existing
 concepts of "on-site," "site," "facility"
 or related terms for any other purpose
 in the RCRA or CERCLA programs.
 Also, it does not affect the definition of
 "contiguous" or EPA's interpretations as
 to whether "contiguous properties" are
 owned or under the control of the same
 person. For example, EPA considers
 different agencies within the Federal
 government and different services to be
 different "persons." Therefore, in the
 example cited by one commenter,
wastes could not be transported
 between adjacent Army and Air Force
bases without a manifest.
  EPA received numerous comments
requesting clarification on how
generator identification numbers would
be affected and the related effect on
generator status a change in the
definition of on-site would create. The
Agency understands that the policy
regarding issuing generator
identification numbers is not explicit in
Federal regulations, and thus flexibility
exercised by authorized States may
result in differing interpretations of this
policy by State implementers. However,
the Agency only intended to address the
applicability of the manifest and related
 transportation requirements and did not
 intend to address the issue of generator
 identification numbers as part of this
 rulemaking. Eliminating State flexibility
 could have significant impacts on
 particular facilities, and those impacts
 could be viewed as either positive or
 negative.  Examples of all kinds were
 cited by commenters. Though EPA
 acknowledges the potential for
 confusion and different application of
 identification number assignments, the
 Agency has not analyzed the potential
 impacts fully and is not changing either
 Federal regulation or policy on this
 issue.
   The definition of "on-site"
 historically has been used in many
 States to determine when a manifest
 should accompany a shipment of
 hazardous waste and when part 263
 transporter requirements apply. While
 the Agency establishes this relationship
 in several preamble discussions (see 45
 FR 12723, February, 26, 1980 and 45 FR
 33069, May 19, 1980), no similar
 preamble  discussion exists on the
 nature of the  relationship of the term
 "on-site" to generator identification
 numbers.
   EPA's past policy interpretations have
 tended to  associate generator
 identification numbers with sites for
 which an effective connecting right-of-
 way exists. In many cases the Agency
 has used the definition of "on-site" as
 the delimiting tool for determining
 when an identification number is
 needed. However, exceptions exist
 where there may be, for example, more
 than one independent business
 operating on a contiguous property and
 where a cogenerator relationship exists.
   EPA has relied on each State
 implementing agency to establish its
 own method of issuing generator
 identification numbers and to make site
 specific determinations where
 appropriate. The Agency understands
 that variations may exist in the method
 used to issue  generator identification
 numbers and  therefore recommends that
 a generator contact the state in which
 the site is located when obtaining an
 identification number and with any
 questions regarding an individual
 location.
  Some commenters requested more
 detailed information on travel distances.
 For example,  a commenter questioned
what was meant by a "short" stretch of
 road (public right-of-way) in the
proposed preamble discussion,
contrasting the benefits of consolidation
to the transportation without a manifest
along a short stretch of road to which
the public has access. Another argued
that a limit should be placed on how far
a shipment could travel along a road,

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 6648   Federal Register / Vol.  62.  No. 29 / Wednesday. February 12. 1997 / Rules and Regulations
 and suggested that waste be allowed to
 be moved only two miles. The Agency
 sees no reason to limit the length of
 movement along roads on (or on the
 boundary of) property owned by the
 same person since many generators
 taking advantage of the new exemptions
 are located on very large properties that
 routinely require them to travel for more
 than two miles. One purpose of the
 manifest requirement is to assure receipt
 of the waste, an object that is
 independent of shipping distance, but
 enhanced in this case because the
 shipper and the receiver are the same,
 and the material remains within, or on
 the border of, the properties owned pr
 operated by the shipper/receiver.
   Commenters asked for clarification
 about the transportation routes allowed
 under the proposed rule. Five
 commenters suggested that EPA clarify
 that waste can be transported along the
 perimeter of the property.  The Agency
 is finalizing this exemption for
 movement on roads along  the perimeter
 as well as within the contiguous
 properties because, as discussed above,
 it is persuaded that there are adequate
 safeguards related to emergency
 response and cleanup provided by
 today's final rule. Further, if a discharge
 of hazardous waste should occur on a
 perimeter public road, the generator
 and/or TSDF property still borders the
 right-of-way, which would lead to better
 control  of the remediation  process. Also,
 the purpose of the manifest is to assure
 that waste gets to the receiving unit, an
 object that is independent  of whether
 the road is on the perimeter or within
 the property, and that is enhanced when
 the contiguous property is  controlled by
 the same person.
  Three commenters suggested EPA
 specifically include contiguous
 properties "touching corners" or
 "diagonally across" from each other.
 EPA considers such examples to be
 contiguous properties separated by a
 right-of-way and, therefore, included in
 today's rule. Also, access would
 generally be gained by travel along the
 perimeter of the properties so the
 inclusion of the "along the border"
 language enables the diagonal corners
 situation to benefit by today's rule.
  Four commenters expressed a desire
 for the Agency to expand the scope of
 "on-site" to include nearby non-
 contiguous areas owned or under the
 control of the same person, suggesting
 that EPA limit the distance to two miles,
several miles, or some other distance.
The Agency did not intend to change
the regulations regarding the
transportation of hazardous waste along
public roads to non-contiguous
properties. The current definition of
 "on-site" already allows for the
 movement of waste to non-contiguous
 areas without a manifest as long as the
 public does not have access to the right-
 of-way that joins the two properties.
 Beyond this, the Agency does not agree
 that movement of wastes between non-
 contiguous properties along right-of-
 ways to which the public has access is
 warranted given the increased
 possibility that the public could come in
 contact with the waste should a
 discharge occur under this scenario and
 the generator would no longer have
 control over bordering property.
   The proposal also requested comment
 on whether or not the authorities under
 CERCLA and/or DOT are sufficient to
 protect human health and the
 environment as they relate to the
 management of potential spills of waste
 that, as a result of this new exemption,
 would not be manifested under RCRA as
 previously required and would not be
 subject to the requirements of Part 263.
 The Agency requested comments on
 whether or not the RCRA requirements
 in 40 CFR 263.30 and 263.31 should
 continue to apply to any discharge of
 hazardous waste during transportation
 of hazardous waste on a public right-of-
 way when the waste is transported
 within a contiguous property without a
 manifest. Sections 263.30 and 263.31
 require that immediate action be taken
 in the event of a discharge including
 notifying local authorities and the
 National Response Center and cleaning
 up the discharge. Most of the
 commenters believed that the alternate
 authorities of CERCLA and DOT are
 protective enough and that the pressure
 of public awareness and corporate
 liability concerning spills would help
 ensure that spills are prevented, and if
 they occur are contained and cleaned up
 quickly. However, the Agency also
 received comments supporting the
 suggested alternative approach of
 requiring the "on-site" hauler using a
 public right-of-way to follow 40 CFR
 263.30 and 263.31. One commenter
 cited that response times for cleanup
 actions under CERCLA do not promote
 an expeditious cleanup and that DOT
 regulations are inadequate. DOT and
 CERCLA reporting requirements would
 apply to such releases, but those
 authorities do not necessarily require an
 actual cleanup of the release.
  In reviewing the options and the
 comments received, the Agency has
 decided that the requirements found at
 §§ 263.30 and 263.31 will continue to
apply to any discharge of hazardous
waste on a public right-of-way even if it
is not accompanied by a manifest and is
not subject to the other transport
requirements found at 40 CFR part 262,
 subparts B and C and 40 CFR pan 263.
 The Agency is concerned here not with
 overall RCRA requirements to clean up
 a spill, since RCRA does apply when
 hazardous waste is disposed of or
 discharged onto the ground, but with
 the timeliness of response action needed
 to contain and remediate a spill which
 will be enhanced by the clarity of
 responsibility such references afford.
 V. State Authority
  Under RCRA section 3006, EPA may
 authorize a State to administer and
 enforce the RCRA hazardous waste
 program. See 40 CFR part 271. After
 receiving authorization, the State
 administers the program in lieu of the
 Federal government, although EPA
 retains enforcement authority under
 RCRA sections 3008, 3013, and 7003.
 Because the new Federal requirements
 in today's final rule are non-HSWA,
 they are not Federally enforceable in an
 authorized State until the necessary
 changes to a States' authorization have
 been approved by EPA.7 See RCRA
 section 3006, 42 U.S.C. 6926.
  Under RCRA, authorized States are
 required to review and, if necessary, to
 modify their programs when EPA
 promulgates Federal standards that are
 more stringent or broader in scope than
 existing Federal standards. This is
 because under RCRA section 3009,
 States are barred from implementing
 requirements that are less stringent than
 the Federal program. See also 40 CFR
 271.21.
  In two respects, EPA considers
 today's final rule to be more stringent
 than current Federal requirements: (1)
 the requirement that military
 installations retrieve munitions fired
 off-range or keep a record of the event
 (§266.202(d)), 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)).
 Authorized States must adopt these
 requirements as part of their State
 programs and apply to EPA for approval
 of their program revisions. Section
 271.21 sets forth the procedures and
 deadlines for State program revisions.
  RCRA section 3009, however, allows
 States to impose standards that are more
  ' Under 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.

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         Federal Register / Vol. 62, No. 29 / Wednesday. February 12. 1997 / Rules  and Regulations   6649
stringent or more extensive (i.e.,
broader) in scope than those in the
Federal program (see also 40 CFR
271.1(i)(l)). Thus, for those Federal
changes that are less stringent, or reduce
the scope of the Federal program, States
are not required to modify their
programs. The less stringent portions of
today's rule are the following: (1) the
manifest exemption for transport on
right-of-ways on contiguous properties
(§ 262.20(f)), (2) the  RCRA manifest
exemption for the off-site shipment of
unused waste munitions from one
military installation to another
(§ 266.203), and (3) the conditional
exemption for waste munitions storage
(§266.205).
  The rest of the requirements in
today's rule; in EPA's view, are neither
more nor less stringent than current
regulatory requirements; they are either
reiterations or clarifications of the
existing EPA regulations or policies.
  Although States are only required to
adopt requirements  that are more
stringent, in recognition of Congress'
intent in passing RCRA section 3004 (y),
DOD's mission  to provide for National
defense, and the Department's nation-
wide presence,  EPA strongly urges
States to adopt all aspects of today's
final rule (including the clarifying as
well as less stringent sections) so as to
ensure clear, consistent guidelines for
handlers of waste military munitions,
State regulators, and the public. EPA
believes that the standards promulgated
today properly implement the goals of
RCRA section 3004 (y) to ensure the safe
and proper management of military
munitions, and add  clarity regarding the
identification and management of
military munitions as hazardous wastes.
Therefore, EPA encourages States to
adopt these regulations as quickly  as
their legislative and  regulatory
processes will allow.

VI.  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 final
rule is a significant rule under Executive
Order 12866 due to the nature of the
policy issues raised. EPA estimates that
today's rule results in national annual
costs of $100,000 per year, and national
annual savings of approximately
$1,200,000 to $2.200,000 per year, for a
net savings of $1,100,000 to 2,100,000
per year. For more information on the
cost impacts of today's final rule, see the
Economic Impact Analysis of the Final
Munitions Rule which is part of the
docket for this rule.

1. Cost Analysis
  Today's rule focuses on several
significant issues: (1) identification of
munitions as waste; (2) transportation of
munitions identified as wastes; (3)
emergency response actions; and (4)
storage standards for waste munitions.
In many instances, EPA has concluded
that 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 $100,000 per year to the
Department of Defense. The most
significant costs are related to the need
for permit modifications for treatment
and disposal facilities receiving off-site
wastes. However, today's final notice
results in avoided costs on the order of
$1,200,000 to $2,200,000 per year over
baseline. Baseline is based on an
analysis of current RCRA/CERCLA and
DOD's current operations.
  The principal sources of annual
savings include avoided costs for new
permits, contingency plans, manifests,
and retrofitted storage units.
  EPA did not develop specific costs for
range closure and clean up (e.g., prior to
property transfer) under RCRA sections
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. Furthermore,
these costs would not be relevant to
today's rule, since EPA is postponing
action  on defining how RCRA applies to
closed ranges.
  EPA also did not develop specific
costs for other Federal agencies that may
be affected by this rulemaking: Coast
Guard, National Guard, DOE, NASA,
FBI, and BTAF. This rule would apply
in the same manner as it does for the
Department of Defense and the relative
savings that would be realized by the
Military is similar to the savings that
would be realized by these other
affected agencies.

2. Benefits Analysis
  EPA is finalizing the concept that
unused munitions generally do not
become hazardous waste subject to
regulation until they are removed from
storage for transportation to a disposal
unit. This approach recognizes that
current DOD storage regulations have
been successful in protecting human
health  and the environment, and that
additional requirements would be
redundant and disruptive. (See section
IV.B.l.f of the proposed rule preamble).
EPA is also exempting waste military
munitions from RCRA manifest and
other requirements when transported
because DOD standards provide
comparable protection. The benefit of
today's rule is an annual cost savings of
approximately $1,200,000 to $2,200,000.
due to  avoided retrofits, permits,
contingency plans, and manifest costs.

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 rule
will primarily affect Federal agencies,
such as the Department of Defense, and
therefore few, if any, small entities will
be adversely affected. Furthermore,
since today's final notice generally
provides savings over current
requirements, EPA believes that any
small entities engaged in activity
covered by the rule will not be
adversely affected. Therefore, EPA
provides the following certification
under the Regulatory Flexibility Act, as

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 6650   Federal Register / Vol. 62. No. 29 / Wednesday, February 12, 1997 / Rules and Regulations
 amended by the Small Business
 Regulatory Enforcement Fairness Act.
 Pursuant to the provision at 5 U.S.C.
 605 (b), I hereby certify that this rule will
 not have a significant economic impact
 on a substantial number of small
 entities.
 C. Paperwork Reduction Act
   The Paperwork Reduction Act of
 1980, 44 USC 3501 etseq., authorizes
 the Director of OMB to review certain
 information collection requests by
 Federal agencies. EPA has determined
 that the record keeping 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 record keeping or
 reporting requirements.
 D. Unfunded Mandates
   Title II of the Unfunded Mandates
 Reform Act of 1995 (UMBRA). P.L. 104-
 4, establishes requirements for Federal
 agencies to assess the effects of their
 regulatory actions on State, Tribal, and
 local 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 $200,000 per year over
 ten years. Thus, today's rule is  not
 subject to the requirements of sections
 202 and 205 of the UMRA.
 VII. Submission to Congress and the
 General Accounting Office
   Under 5 U.S.C. 801(a)(l)(A) as added
 by the Small  Business Regulatory
 Enforcement Fairness Act of 1996. EPA
 submitted a report containing this rule
 and other required information to the
 U.S. Senate, the U.S. House of
 Representatives and the Comptroller
 General of the General Accounting
 Office prior to publication of the rule in
 today's Federal Register. This rule is
 not a "major rule" as defined by 5
 U.S.C. 804(2), therefore, the effective
 date of the rule is not affected.
 List of Subjects
 40 CFR Part 260
   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
   Environmental Protection, Air
 pollution control, Emergency responses.
 Hazardous waste, Insurance, Storage
 containers, Reporting and recordkeeping
 requirements. Security measures. Surety
 bonds, Treatment and disposal.

 40 CFR Part 266
   Energy, Hazardous waste, Recycling,
 Reporting and recordkeeping
 requirements.

 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: February 3.1997.
 Carol M. Browner,
 Administrator.
  For the reasons set forth in the
 preamble, 40 CFR Parts 260, 261, 262.
 263, 264, 265. 266. and 270 are
 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. 6912(a), 6921-
 6927. 6930, 6934. 6935, 6937-6939. and
 6974.
  2. Section 260.10 is amended by
 adding the following definitions, in
 alphabetical order, to read as follows:

 §260.10  Definitions.
 *    *    *    *    *
  Explosives or munitions emergency
 means a situation involving the
 suspected or detected presence of
 unexploded  ordnance (UXO), damaged
 or deteriorated explosives or munitions,
 an improvised explosive device (IED),
 other potentially explosive material or
 device, or other potentially harmful
 military chemical munitions or device,
 that creates an actual or potential
 imminent threat to human health,
 including safety, or the environment,
 including property, as determined by an
 explosives or munitions emergency
response specialist. Such situations may
require immediate and expeditious
action by an explosives or munitions
emergency response specialist to
control, mitigate, or eliminate the threat.
  Explosives or munitions emergency
response means all immediate response
activities by an explosives and
munitions emergency response
specialist to control, mitigate, or

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         Federal  Register  /  Vol.  62.  No. 29 / Wednesday, February 12, 1997  /  Rules and  Regulations   6651
 eliminate the actual or potential threat
 encountered during an explosives or
 munitions emergency. An explosives or
 munitions emergency response may
 include in-place render-safe procedures,
 treatment or destruction of the
 explosives or munitions and/or
 transporting those items to another
 location to be rendered safe, treated, or
 destroyed. Any reasonable delay in the
 completion of an explosives or
 munitions emergency response caused
 by a necessary, unforeseen, or
 uncontrollable circumstance will not
 terminate the explosives or munitions
 emergency. Explosives and munitions
 emergency responses can occur on
 either public or private lands and are
 not limited to responses at RCRA
 facilities.
   Explosives or munitions emergency
 response specialist means an individual
 trained in chemical or conventional
 munitions or explosives handling,
 transportation, render-safe procedures,
 or destruction techniques. Explosives or
 munitions emergency response
 specialists include Department of
 Defense (DOD) emergency explosive
 ordnance disposal (EOD), technical
 escort unit (TEU), and DOD-certified
 civilian or contractor personnel; and
 other Federal, State, or local
 government, or civilian personnel
 similarly trained in explosives or
 munitions emergency responses.
 *****
   Military munitions means all
 ammunition products and components
 produced of 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 (DOE), and
 National Guard personnel. The term
 military munitions includes: confined
 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 missiles,
bombs, warheads, mortar rounds,
artillery ammunition, 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, nuclear devices, and nuclear
components thereof. However, the term
does include non-nuclear components
of nuclear devices, managed under
 DOE's nuclear weapons program after
 all required sanitization operations
 under the Atomic Energy Act of 1954,
 as amended, have been completed.
 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
 removing the period at the end of
 paragraph (a) (2) (Hi) and adding a
 semicolon followed by "or"; and by
 adding new paragraph (a)(2)(iv) to read
 as follows:

 § 261.2  Definition of solid waste.
   (a) *  *  *
   (2)*  *  *
  (Hi) *
";or
  (iv) A military munition identified as
a solid waste in 40 CFR 266.202.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE

   1. The authority citation for part 262
is revised to read as follows:
  Authority: 42 U.S.C. 6906. 6912. 6922-
6925. 6937. and 6938.
   2. Section 262.10 is amended by
adding, before the notes, new paragraph
(i) to read as follows:

§ 262.10 Purpose, scope, and applicability.
*****
   (i) Persons responding to an
explosives or munitions emergency in
accordance with 40 CFR
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.
*****
  3. Section 262.20 is amended by
adding new paragraph (f) to read as
follows:

§ 262.20 General requirements.
*****
  (f) The requirements of this subpart
and § 262.32(b) do not apply to the
transport of hazardous wastes on a
public or private right-of-way within or
along the border of contiguous property
under the control of the same person,
even if such contiguous property is
divided by a public or private right-of-
way. Notwithstanding 40 CFR 263.10(a),
the generator or transporter must
comply with the requirements for
transporters set forth in 40 CFR 263.30
and 263.31 in the event of a discharge
of hazardous waste on a public or
private right-of-way.

PART 263—STANDARDS APPLICABLE
TO TRANSPORTERS OF HAZARDOUS
WASTE

   1. The authority citation for part 263
is revised to read as follows:
  Authority: 42 U.S.C. 6906, 6912, 6922-
6925. 6937 and 6938.
  2. Section 263.10 is amended by
adding new paragraphs (e) and (0 to
read as follows:

§263.10 Scope.
*****
  (e) The regulations in this part do not
apply to transportation during an
explosives or munitions emergency
response, conducted in accordance with
40 CFR 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).
  (f) Section 266.203 of this chapter
identifies how the requirements of this
part apply to military munitions
classified as solid waste under 40 CFR
266.202.

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),
(g)(8)(iv), and (i) to read as follows:

§ 264.1  Purpose, scope and applicability.
*****
  (g)* *  *
  (8) * * *
  0) *  *  *
  (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, as determined by
an explosive or munitions emergency
response specialist as defined in 40 CFR
260.10.
                             (iv) In the case of an explosives or
                           munitions emergency response, if a
                           Federal, State, Tribal or local official
                           acting within the scope of his or her
                           official responsibilities, or an explosives
                           or munitions emergency response
                           specialist, determines that immediate
                           removal of the material  or waste is
                           necessary to protect human health or

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_ 6652   Federal Register / Vol. 62. No.  29 / Wednesday. February 12, 1997 / Rules and Regulations
   the environment, that official or
   specialist 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, die
   responding military emergency response
   specialist's organizational 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.
   *****
    (i) Section 266.205 of this chapter
   identifies when the requirements of this
   part apply to the storage of military
   munitions classified as solid waste
   under §266.202 of this chapter. The
   treatment and disposal of hazardous
   waste military munitions are subject to
   the applicable permitting, procedural,
   and technical standards in 40 CFR parts
   260 through 270.
    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 40 CFR 266.203(a). 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 264 is amended by adding new
  subpart EE, consisting of §§ 264.1200
  through 264.1202, to read as follows:

  Subpart EE—Hazardous Waste
  Munitions and Explosives Storage

  Sec.
  264.1200  Applicability.
  264.1201  Design and operating standards.
  264.1202  Closure and post-closure care.

  §264.1200 Applicability.
   The requirements of this subpart
  apply to owners or operators who store
  munitions and explosive hazardous
  wastes, except as §264.1 provides
  otherwise. (NOTE: Depending on
  explosive hazards, hazardous waste
  munitions and explosives 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); See 40 CFR
  266.205 for storage of waste military
  munitions).
 §264.1201
 standards.
Design and operating
   (a) Hazardous waste munitions and
 explosives 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,
 and atmosphere;
   (2) Provide a primary barrier, which
 may be a container (including a shell) or
 tank, designed to contain the hazardous
 waste;
   (3) For wastes stored outdoors,
 provide that the waste and containers
 will not be in standing precipitation;
   (4) For liquid  wastes, provide a
 secondary containment system that
 assures that any released liquids are
 contained  and promptly detected and
 removed from the waste area, or vapor
 detection system that assures that any
 released liquids or vapors are promptly
 detected and an appropriate response
 taken (e.g., additional containment,
 such as overpacking, or removal 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) Hazardous waste munitions and
 explosives 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
 explosives  or 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; and
   (iii) Located and designed, with walls
 and earthen covers that direct an
 explosion in the unit in a safe direction,
so as to minimize the propagation of an
explosion to adjacent units and to
minimize other effects of any explosion.
  (2) Above-ground magazines. Above-
ground magazines must be located and
 designed so as to minimize the
 propagation of an explosion to adjacent
 units and to minimize other effects of
 any explosion.
   (3)  Outdoor or open storage areas.
 Outdoor or open storage areas must be
 located and designed so as to minimize
 the propagation of an explosion to
 adjacent units and to minimize other
 effects of any explosion.
   (c) Hazardous waste munitions and
 explosives must  be stored in accordance
 with a Standard Operating Procedure
 specifying procedures to ensure safety,
 security, and environmental protection.
 If these procedures serve the same
 purpose as 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, then these
 procedures will be used to fulfill those
 requirements.
   (d) Hazardous waste munitions and
 explosives must be packaged to ensure
 safety in handling and storage.
   (e) Hazardous waste munitions and
 explosives must be inventoried at least
 annually.
   (f) Hazardous waste munitions and
 explosives and their storage units must
 be inspected and  monitored as
 necessary to ensure explosives safety
 and to ensure that there is no migration
 of contaminants out of the unit.

 § 264.1202  Closure and post-closure care.
   (a) At closure of a magazine or unit
 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  magazines or units
 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 or
 explosives magazine or storage unit.
   (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

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           Federal  Register / Vol. 62. No. 29 / Wednesday. February 12.  1997  /Rules and Regulations   6653
  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, 6906, 6912.
  6922. 6923, 6924, 6925. 6935, 6936 and 6937.
  unless otherwise noted.
    2. Section 265.1 is amended by
  adding new paragraphs (c)(l l)(i)(D),
  (c)(l l)(iv), and (f) to read as follows:

  § 265.1  Purpose, scope, and applicability.
  »    *    *    »     *
    (c) * * *
    (ID* * *
    (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, as determined by
  an explosive or munitions emergency
  response specialist as defined in 40 CFR
  260.10.
  *****
    (iv) In the case of an explosives or
  munitions emergency response, if a
  Federal, State, Tribal or local official
  acting within the scope of his or her
  official responsibilities, or an explosives
  or munitions emergency response
  specialist, determines that immediate
  removal of the material or waste is
  necessary to protect human health or
  the environment, that official or
  specialist 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
 specialist's organizational 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.
 *****
   (f)  Section 266.205 of this chapter
 identifies when the requirements of this
 part apply to the storage of military
 munitions classified as solid waste
 under § 266.202 of this chapter. The
•treatment and disposal of hazardous
 waste military munitions are subject to
 the applicable permitting, procedural,
 and technical standards in 40 CFR parts
 260 through 270.
    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 § 266.203(a) of this chapter.
    4. Part 265 is amended by adding new
  subpart EE. consisting of §§265.1200
  through 265.1202, to read as follows:

  Subpart EE—Hazardous Waste
  Munitions and Explosives Storage

  Sec.
  265.1200  Applicability.
  265.1201  Design and operating standards.
  265.1202  Closure and post-closure care.

 §265.1200 Applicability.
   The requirements of this subpart
 apply to owners or operators who store
 munitions and explosive hazardous
 wastes, except as §265.1 provides
 otherwise. (NOTE: Depending on
 explosive hazards, hazardous waste
 munitions and  explosives 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); See 40 CFR ,
 266.205 for storage of waste military
 munitions).

 § 265.1201  Design and operating
 standards.
   (a) Hazardous waste munitions and
 explosives 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,
 and atmosphere;
   (2) Provide a primary barrier, which
 may be a container (including a shell) or
 tank, designed to contain the hazardous
 waste;
   (3) For wastes stored outdoors,
 provide that the waste and containers
 will not be in standing precipitation;
   (4) For liquid wastes, provide a
secondary containment system that
assures that any released liquids are
contained and promptly detected and
removed from the waste area, or vapor
  detection system that assures that any
  released liquids or vapors are promptly
  detected and an appropriate response
  taken (e.g., additional containment,
  such as overpacking, or removal 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) Hazardous waste munitions and
  explosives 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
  explosives or 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; and
   (iii) Located and designed, with walls
 and earthen covers that direct an
 explosion in the unit in a safe direction,
 so as to minimize the propagation of an
 explosion to adjacent units and to
 minimize other effects of any explosion.
   (2) Above-ground magazines. Above-
 ground magazines must be located and
 designed so as to minimize the
 propagation of an explosion to adjacent
 units and to minimize other effects of
 any explosion.
   (3) Outdoor or open storage areas.
 Outdoor or open storage areas must be
 located and designed so as to minimize
 the propagation of an explosion to
 adjacent units and to minimize other
 effects of any explosion.
   (c) Hazardous waste munitions and
 explosives must be stored in accordance
 with a Standard Operating Procedure
 specifying procedures to ensure safety,
 security, and environmental protection.
 If these procedures serve the same
 purpose as the security and inspection
 requirements of 40 CFR 265.14, the
 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, then these
 procedures will be used to fulfill those
 requirements.
  (d) Hazardous waste munitions and
explosives must be packaged to ensure
safety in handling and storage.

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 6654   Federal Register  / Vol. 62. No. 29 / Wednesday. February 12. 1997  /  Rules and Regulations
   (e) Hazardous waste munitions and
 explosives must be inventoried at least
 annually.
   (f) Hazardous waste munitions and
 explosives and their storage units must
 be inspected and monitored as
 necessary to ensure explosives safety
 and to ensure that there is no migration
 of contaminants out of the unit.
 266.203  Standards applicable to the
     transportation of solid waste military
     munitions.
 266.204  Standards applicable to emergency
     responses.
 266.205  Standards applicable to the storage
     of solid waste military munitions.
 266.206  Standards applicable to the
     treatment and disposal of waste military
     munitions.
 § 265.1202  Closure and post-closure care.   Subpart M—Military Munitions
   (a) At closure of a magazine or unit
 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 magazines or units
 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 or
 explosives magazine or storage unit.
  (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 (40
 CFR 264.310).

 PART 266—STANDARDS FOR THE
 MANAGEMENT OF SPECIFIC
 HAZARDOUS WASTES AND SPECIFIC
 TYPES OF HAZARDOUS WASTE
 MANAGEMENT FACILITIES

  1. The  authority citation for Pan 266
 continues to read as follows:
  Authority: 42 U.S.C. 6905. 6912(a). 6924.
and 6934.

  2. Part  266 is amended by reserving
subparts I through L and adding new
subpart M to read as follows:

Subparts I-L (Reserved)

Subpart M—Military Munitions

Sec.
266.200  Applicability.
266.201  Definitions.
266.202  Definition of solid waste.
 §266.200  Applicability.
   (a) The regulations in this subpart
 identify when military munitions
 become a solid waste, and, if these
 wastes are also hazardous under this
 subpart or 40 CFR part 261, the
 management standards that apply to
 these wastes.
   (b) Unless otherwise specified in this
 subpart, all  applicable requirements in
 40 CFR parts 260 through 270 apply to
 waste military munitions.

 §266.201  Definitions.
   In addition to the definitions in 40
 CFR 260.10, the following definitions
 apply to this subpart:
   Active range means a military range
 that is currently in service and is being
 regularly used for range activities.
   Chemical agents and munitions are
 defined as in 50 U.S.C. section
  Director is as defined in 40 CFR 270.2.
  Explosives or munitions emergency
response specialist is as defined in 40
CFR 260. 10.
  Explosives or munitions emergency is
as defined in 40 CFR 260. 1 0.
  Explosives or munitions emergency
response is as defined in 40 CFR 260.10.
  Inactive range means a military range
that is not currently being used, but that
is still under military control and
considered by the military to be a
potential range area, and that has not
been put to a new use that is
incompatible with range activities.
  Military means the Department of
Defense (DOD), the Armed Services,
Coast Guard, National Guard,
Department of Energy (DOE), or other
parties under contract or acting as an
agent for the foregoing, who handle
military munitions.
  Military munitions is as defined in 40
CFR 260. 10.
  Military range means designated land
and water areas set aside, managed, and
used to conduct research on, develop,
test, and evaluate military munitions
and explosives, other ordnance, or
weapon systems, or to train military
personnel in their use and handling.
Ranges include firing lines and
positions;  maneuver areas, firing lanes,
test pads, detonation pads, impact areas,
 and buffer zones with restricted access
 and exclusionary areas.
   Unexploded ordnance (UXO) means
 military munitions that have been
 primed, fused, armed, or otherwise
 prepared for action, and have been fired,
 dropped, launched, projected, or placed
 in such a manner as to constitute a
 hazard to operations, installation,
 personnel, or material and remain
 unexploded either by malfunction,
 design, or any other cause.

 § 266.202  Definition of solid waste.
   (a) A military munition is not a solid
 waste when:
   (1) Used for its intended purpose,
 including:
   (i) Use in training military personnel
 or explosives and munitions emergency
 response specialists (including training
 in proper destruction of unused
 propellant or other munitions); or
   (ii) Use in research, development,
 testing, and evaluation of military
 munitions, weapons, or weapon
 systems; or
   (iii) Recovery, collection, and on-
 range destruction of unexploded
 ordnance and munitions fragments
 during range clearance activities at
 active or inactive ranges. However, "use .
 for intended purpose" does not include
 the on-range disposal or burial of
 unexploded ordnance and contaminants
 when the burial is not a result of
 product use.
   (2) An unused munition, or
 component thereof, is being repaired,
 reused, recycled, reclaimed,
 disassembled, reconfigured, or
 otherwise subjected to materials
 recovery activities, unless such
 activities involve use constituting
 disposal as defined in 40 CFR
 261.2(c)(l), or burning for energy
 recovery as defined in 40 CFR
 261.2(c)(2).
  (b) An unused military munition is a
 solid waste when any of the following
 occurs:
  (1) The munition is abandoned by
 being disposed of, burned, detonated
 (except during intended use as specified
 in paragraph (a) of this section),
 incinerated, or treated prior to disposal;
 or
  (2) 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
  (3) The munition is deteriorated  or
damaged (e.g., the integrity of the
munition is compromised 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

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           Federal  Register / Vol. 62, No.  29 / Wednesday, February 12,  1997 / Rules and Regulations   6655
    (4) The munition has been declared a
  solid waste by an authorized military
  official.
    (c) A used or fired military munition
  is a solid waste:
    (1) When transported off range or
  from the site of use, where the site of
  use .is not a range, for the purposes of
  storage, reclamation, treatment,
  disposal, or treatment prior to disposal;
  or
    (2) If recovered, collected, and then
  disposed of by burial, or landfilling
  either on or off a range.
    (d) For purposes of RCRA section
  1004(27), a used  or fired military
  munition is a solid waste, and,
  therefore, is potentially subject to RCRA
  corrective action authorities under
  sections 3004(u)  and (v), and 3008(h), or
  imminent and substantial endangerment
  authorities under section 7003, if the
  munition lands off-range and is not
  promptly rendered safe and/or
  retrieved. 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).

  §266.203  Standards applicable to the
  transportation of solid waste military
  munitions.
    (a) Criteria for hazardous waste
  regulation of waste non-chemical
  military munitions in transportation. (1)
  Waste military munitions that are being
  transported and that exhibit a hazardous
  waste characteristic or are listed as
  hazardous waste under 40 CFR part 261,
  are listed or identified as a hazardous
  waste (and thus are subject to regulation
  under 40 CFR parts 260 through 270),
  unless all the following conditions are
  met:
   (i) The waste military munitions are
  not chemical agents or chemical
  munitions;
   (ii) The waste military munitions
 must be transported in accordance with
 the Department of Defense shipping
 controls applicable to the transport of
 military munitions;
   (iii) The waste military munitions
 must be transported from a military
 owned or operated installation to a
 military owned or operated treatment,
 storage, or disposal facility; and
   (iv) The transporter of the waste must
 provide oral notice to the Director
" within 24 hours from the time the
 transporter becomes aware of any loss or
 theft of the waste military munitions, or
 any failure to meet a condition of
 paragraph (a)(l) of this section that may
 endanger health orlhe environment. In
 addition, a written submission
 describing the circumstances shall be
 provided within 5 days from the time
 the transporter becomes aware of any
 loss or theft of the waste military
 munitions or any  failure to meet a
 condition of paragraph (a)(l) of this
 section.
   (2) If any waste  military munitions
 shipped under paragraph (a)(l) of this
 section are not received by the receiving
 facility within 45  days of the day the
 waste was shipped, the owner or
 operator of the receiving facility must
 report this non-receipt to the Director
 within 5 days.
   (3) The exemption in paragraph (a)(l)
 of this section from regulation as
 hazardous waste shall apply only to the
 transportation of non-chemical waste
 military munitions. It does not affect the
 regulatory status of waste military
 munitions as hazardous wastes with
 regard to  storage, treatment or disposal.
   (4) The conditional exemption in
 paragraph (a)(l) of this section applies
 only so long as all of the conditions in
 paragraph (a)(l) of this section are met.
   (b) Reinstatement of exemption. If any
 waste military munition loses its
 exemption under paragraph (a)(l) of this
 section, an application may be filed
 with the Director for reinstatement of
 the exemption from hazardous waste
 transportation regulation with respect to
 such munition as soon as the munition
 is returned to compliance with the
 conditions of paragraph (a)(l) of this
 section. If the Director finds that
 reinstatement of the exemption is
 appropriate based  on factors such as the
 transporter's provision of a satisfactory
 explanation of the  circumstances of the
 violation, or a demonstration that the
 violations are not likely to recur, the
 Director may reinstate the exemption
 under paragraph (a)(l)  of this section. If
 the Director does not take action  on the
 reinstatement application within 60
 days after receipt of the application,
 then reinstatement shall be deemed
 granted, retroactive to the date of the
 application. However, the Director may
 terminate a conditional exemption
 reinstated by default in the preceding
 sentence if the Director finds that
 reinstatement is inappropriate based on
 factors such as the  transporter's failure
 to provide a satisfactory explanation of
 the circumstances of the violation, or
 failure to demonstrate that the
violations are not likely to recur.  In
reinstating the exemption under
paragraph (a)(l) of  this section, the
Director may specify additional
conditions as are necessary to ensure
and document proper transportation to
 protect human health and the
 environment.
   (c) Amendments to DOD shipping
 controls. The Department of Defense
 shipping controls applicable to the
 transport of military munitions
 referenced in paragraph (a)(l)(ii) of this
 section are Government Bill of Lading
 (GBL) (GSA Standard Form 1109),
 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) in effect on
 November 8, 1995, except as provided
 in the following sentence. Any
 amendments to the Department of
 Defense shipping controls shall become
 effective for purposes of paragraph (a)(l)
 of this section on the date the
 Department of Defense publishes notice
 in the Federal Register that the shipping
 controls referenced in paragraph
 (a)(l)(ii) of this section have been
 amended.

 § 266.204  Standards applicable to
 emergency responses.
   Explosives and munitions
 emergencies involving military
 munitions or explosives are subject to
 40 CFR 262.10(i), 263.10(e), 264.1(g)(8),
 265.1(c)(ll), and 270.1(c)(3), or
 alternatively to 40 CFR 270.61.

 § 266.205  Standards applicable to the
 storage of solid waste military munitions.
   (a) Criteria for hazardous waste
 regulation of waste non-chemical
 military munitions in storage. (1) Waste
 military munitions in storage that
 exhibit a hazardous waste characteristic
 or are listed as hazardous waste under
 40 CFR Part 261, are listed or identified
 as a hazardous waste (and thus are
 subject to regulation under 40 CFR Parts
 260 through 279), unless all the
 following conditions are met:
   (i) The waste military munitions are
 not chemical agents or chemical
 munitions.
   (ii) The waste military munitions
 must be subject to the jurisdiction  of the
 Department of Defense Explosives
 Safety Board (DDESB).
  (iii) The waste military munitions
 must be stored in accordance with the
 DDESB storage standards applicable to
 waste military munitions.
  (iv) Within 90 days of August 12,
 1997 or within 90 days of when a
storage unit is first used to store waste
military munitions, whichever is later,
the owner or operator must notify the
Director of the location of any waste
storage unit used to store waste military
munitions for which the conditional

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  6656    Federal Register / Vol. 62. No. 29 / Wednesday. February 12,  1997 / Rules and  Regulations
  exemption in paragraph (a)(l) is
  claimed.
    (v) The owner or operator must
  provide oral notice to the Director
  within 24 hours from the time the
  owner or operator becomes aware of any
  •loss or theft of the waste military
  munitions, or any failure to meet a
  condition of paragraph (a)(l) that may
  endanger health or the environment. In
  addition, a written submission
  describing the circumstances shall be
  provided within 5 days from the time
  the owner or operator becomes aware of
  any loss or theft of the waste military
  munitions or any  failure to meet a
  condition of paragraph (a)(l) of this
  section.
    (vi) The owner or operator must
  inventory the waste military munitions
  at least annually, must inspect the waste
  military munitions at least quarterly for
  compliance with the  conditions of
  paragraph (a)(l) of this section, and
  must maintain records of the findings of
  these inventories and inspections for at
  least three years.
   (vii) Access to the stored waste
  military munitions must be limited to
  appropriately trained and authorized
  personnel.
   (2) The conditional exemption in
 paragraph (a)(l) of this section from
 regulation as hazardous waste shall
 apply only to the storage of non-
 chemical waste military munitions. It
 does not affect the regulatory status of
 waste military  munitions as hazardous
 wastes with regard to transportation,
 treatment or disposal.
   (3) The conditional exemption in
 paragraph (a)(l) of this section applies
 only so long as all  of the conditions in
 paragraph (a)(l) of this section are met.
   (b) Notice of termination of waste
 storage. The owner or operator must
 notify the Director when a storage unit
 identified in paragraph (a)(l)(iv) of this
 section will no longer be used to store
 waste military munitions.
   (c) Reinstatement of conditional
 exemption. If any waste military
 munition loses  its conditional
 exemption under paragraph (a)(l) of this
 section, an application may be filed
 with the Director for reinstatement of
 the conditional exemption from
 hazardous waste storage regulation with
 respect  to such  munition as soon as the
 munition is returned to compliance
 with the conditions of paragraph (a)(l)
 of this section. If the Director finds that
 reinstatement of the conditional
 exemption is appropriate based on
 factors such as the owner's or operator's
 provision of a satisfactory explanation
of the circumstances of the violation, or
a demonstration that the violations are
not likely to recur, the Director may
  reinstate the conditional exemption
  under paragraph (a)(l) of this section. If
  the Director does not take action on the
  reinstatement application within 60
  days after receipt of the application,
  then reinstatement shall be deemed
  granted, retroactive to the date of the
  application. However, the Director may
  terminate a conditional exemption
  reinstated by default in the preceding
  sentence if he/she finds that
  reinstatement is inappropriate based on
  factors such as the owner's or operator's
  failure to provide a satisfactory
  explanation of the circumstances of the
  violation, or failure to demonstrate that
  the violations are not likely to recur. In
  reinstating the conditional exemption
  under paragraph (a)(l) of this section,
  the Director may specify additional
  conditions as are necessary to ensure
  and document proper storage to protect
  human health and the environment.
   (d) Waste chemical munitions. (1)
 Waste military munitions that are
 chemical agents or chemical munitions
 and that exhibit a hazardous waste
 characteristic or are listed as hazardous
 waste under 40 CFR Part 261, are listed
 or identified as a hazardous waste and
 shall be subject to the applicable
 regulatory requirements of RCRA
 subtitle C.
   (2) Waste military munitions that are
 chemical agents or chemical munitions
 and that exhibit a hazardous waste
 characteristic or are listed as hazardous
 waste under 40 CFR Part 261, are not
 subject to the storage prohibition in
 RCRA section 3004Q), codified at 40
 CFR 268.50.
   (e)  Amendments to DDESB  storage
 standards. The DDESB storage standards
 applicable to waste military munitions.
 referenced in paragraph (a)(l)(iii) of this
 section, are DOD 6055.9-STD ("DOD
 Ammunition and Explosive Safety
 Standards"), in effect on November 8,
 1995, except as provided in the
 following sentence. Any amendments to
 the DDESB storage standards shall
 become effective for purposes of
 paragraph (a)(l) of this section on the
 date the Department of Defense
 publishes notice in the Federal Register
 that the DDESB standards referenced in
 paragraph (a)(l) of this section have
 been amended.

 §266.206 Standards applicable to the
 treatment and disposal of waste military
 munitions.

  The treatment and disposal of
hazardous waste military munitions are
subject to the applicable permitting,
procedural, and technical standards in
40 CFR Parts 260 through 270.
  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, as determined by
  an explosive or munitions emergency
 response specialist as defined in 40 CFR
  260.10.
  *****
   (iii) In the case of emergency
 responses involving military munitiqns,
 the responding military emergency
 response specialist's organizational 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. The
 permittee is authorized to continue to
 accept waste military munitions
 notwithstanding any permit conditions
 barring the permittee from accepting off-
 site wastes, if:
  (1) The facility was in existence as a
 hazardous waste facility, and the facility
 was already permitted to handle the
 waste military munitions, on the date
 when the waste military munitions
 became subject to hazardous waste
 regulatory requirements;
  (2) On or before the date when the
waste military munitions become
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

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                 Federal Register  /  Vol.  62,  No. 29 / Wednesday, February 12, 1997  /  Rules and  Regulations   6657
*          (3) The permittee submits a complete
         Class 2 modification request within 180
         days of the date when the waste military
         munitions became subject to hazardous
         waste regulatory requirements.
         *****
         [FR Doc. 97-3218 Filed 2-11-97; 8:45 am]
         BILLING CODE 656O-50-P

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