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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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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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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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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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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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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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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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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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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-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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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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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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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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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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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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