[Federal Register Volume 62, Number 187 (Friday, September 26, 1997)]
[Proposed Rules]
[Pages 50796-50843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25269]
[[Page 50795]]
_______________________________________________________________________
Part VII
Department of Defense
_______________________________________________________________________
32 CFR Part 178
Closed, Transferred, and Transferring Ranges Containing Military
Munitions; Proposed Rule
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 /
Proposed Rules
[[Page 50796]]
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 178
RIN 0790-AG46
Closed, Transferred, and Transferring Ranges Containing Military
Munitions
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) is proposing a rule that
identifies a process for evaluating appropriate response actions on
closed, transferred, and transferring military ranges. Response actions
will address safety, human health, and the environment. This rule
contains a five-part process that is not inconsistent with the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and is tailored to the special risks posed by military
munitions and military ranges. All closed, transferred, and
transferring military ranges will be identified. A range assessment
will be conducted in which a site-specific accelerated response
(various options for protective measures, including monitoring) will be
implemented. If these measures are not sufficient, a more detailed
site-specific range evaluation will be conducted. Recurring reviews
will be conducted, and an administrative close-out phase also is
included.
DATES: Written comments on this proposed rule will be accepted until
December 26, 1997.
ADDRESSES: Written comments (one original and two copies) should be
addressed to: DoD Range Rule, P.O. Box 4137, Gaithersburg, MD 20885-
4137. Comments may also be submitted electronically by sending
electronic mail (``e-mail'') through the internet to: fbarrule@b-r.com.
All electronic comments must be submitted as an American Standard Code
for Information Interchange (ASCII) file without special characters or
any form of encryption, or as a Microsoft Word file. The administrative
record for this rulemaking will be kept in paper form. Accordingly, the
Department of Defense will convert all documents received
electronically into printed paper form as they are received and will
place the paper copies in the administrative record. In addition,
comments may be faxed to (800) 870-6547.
Public comments and the supporting information used for this rule
will be made available for public inspection and copying at the DoD
range rule administrative record located at 910 Clopper Road,
Gaithersburg, MD 20878-1399. This administrative record is open from
9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal
holidays. To review the administrative record materials, the public
must make an appointment by calling (301) 258-8753.
FOR FURTHER INFORMATION CONTACT: To request a copy of the Range Rule or
to ask a general question, please call the toll-free DoD range rule
information request line (available 24 hours a day, 7 days a week) at
(888) 541-1081. The toll-free number for the hearing-impaired is (800)
870-6557. In addition, this proposed rule may be downloaded from the
World Wide Web at http://www.acq.osd.mil/ens/. For specific technical
questions, please contact Mr. Joseph Murphy, U.S. Army Environmental
Center Range Rule Office, or Ms. Karen Heckelman, U.S. Army
Environmental Center Office of Counsel, at (410) 612-7104.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Legal Authority
II. Background
III. Summary of Proposed Rule
IV. Section-by Section Analysis
I. Legal Authority
II. Background
III. Summary of Proposed Rule
IV. Section-by-Section Analysis
A. Purpose, scope, and applicability
B. Definitions
1. Military munitions
2. Military range
3. Closed range
4. Transferring range
5. Transferred range
6. Inactive range
7. Active range
8. Unexploded ordnance
9. Other constituents
10. Federal land manager
11. American Indian tribe
12. Property owner
C. Summary of challenges
1. Safety
2. Current technological capabilities
3. Technology development
4. Magnitude
D. Overview of the range response process
1. Introduction
2. Program overview
3. Programmatic concepts
E. Detailed discussion of the phases of the range response
process
1. Identification of closed, transferred, and transferring
military ranges
2. Range assessment/accelerated responses
3. Evaluation of RA/AR results
4. Range evaluation
5. Range evaluation findings
6. Site-specific response evaluation
7. Site-specific response implementation
8. Recurring reviews
9. Ending the range response process
F. Other issues
1. DoD environmental response authorities and relationship to
other laws
2. Water ranges
3. Other range activities
4. Chemical agent constituents
5. Buried military munitions
6. Depleted uranium
7. Regulator, American Indian tribe, and public involvement
8. Small arms ranges
9. Guidance
10. Dispute resolution
11. Allocation of operation and maintenance costs between
federal agencies
12. Future land use issues for transfers between federal
agencies
V. Discussion of other major alternatives
A. General
B. Comprehensive Environmental Response, Compensation and
Liability Act
C. Defense Environmental Restoration Program
D. Resource Conservation and Recovery Act
E. DoD explosives safety standards promulgated pursuant to 10
U.S.C. 172
F. Status quo
VI. Administrative requirements
A. Regulatory impact analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Environmental justice
E. Unfunded mandates
VII. References/docket
I. Legal Authority
This part is proposed under the authorities of the Defense
Environmental Restoration Program (DERP), in 10 U.S.C. 2701 et seq.;
the DoD Explosives Safety Board (DDESB), in 10 U.S.C. 172 et seq.; and
Section 104 of CERCLA, in 42 U.S.C. 9601 et seq., as delegated to the
DoD by Executive Order (E.O.) 12580 (59 FR 2923, January 23, 1987).
II. Background
Section 107 of the Federal Facility Compliance Act of 1992 amended
the Resource Conservation and Recovery Act (RCRA) and required the U.S.
Environmental Protection Agency (EPA) to promulgate regulations
identifying when conventional and chemical military munitions become
hazardous waste subject to RCRA Subtitle C regulations. EPA's proposed
military munitions rule (60 FR 56476, November 8, 1995) would have
identified military munitions 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. However, EPA's proposed
rule also stated that if the Department of Defense, pursuant to the
Department of Defense's own statutory authority, were to
[[Page 50797]]
promulgate a rule that addressed military munitions on closed or
transferred ranges in a manner that was protective of human health and
the environment and that allowed for public involvement in addressing
these ranges, EPA would interpret the statutory definition of solid
waste as not including military munitions left on closed or transferred
ranges. The Department of Defense began development of this proposal,
the ``DoD Range Rule,'' in response to EPA's proposed military
munitions rule.
The final EPA military munitions rule was published on February 12,
1997 (62 FR 6622). In this final rule, EPA postponed action on whether
to identify as solid waste military munitions left on closed or
transferred ranges. EPA will reach its final decision on this issue
based on further analyses of comments received on the military
munitions rule and on the Department of Defense's final regulation
governing the cleanup of munitions on closed and transferred ranges. In
the final military munitions rule, EPA indicated that it is prepared to
address this issue under Federal environmental laws if the Department
of Defense does not promulgate the range rule or if EPA finds that the
range rule does not adequately protect human health and the
environment.
The Department of Defense is including transferring ranges within
the scope of the range rule, even though they were not included in the
scope of EPA's proposed military munitions rule, to more
comprehensively address this issue. The DoD proposed rule addresses the
unique explosives safety considerations associated with military
munitions (including unexploded ordnance (UXO)) and the need for
environmental protection, and it does so under DERP, 10 U.S.C. 172, and
CERCLA authorities rather than under RCRA.
III. Summary of Proposed Rule
This proposal identifies a process for evaluating response actions
on closed, transferred, and transferring military ranges. These
response actions fully encompass safety, are protective of human health
and the environment, and address risks based upon reasonably
anticipated future land use.
Closed ranges include those ranges that are within military control
but are put to a use incompatible with range activities. Transferring
ranges include those ranges associated with Base Realignment and
Closure (BRAC) activities and other property transfers to nonmilitary
entities. Transferred ranges include those being identified in the
Formerly Used Defense Site (FUDS) program.
The Department of Defense's proposed rule contains a phased
process, with accelerated response (AR) options as part of an early
phase. All closed, transferred, and transferring military ranges will
be identified. Then a site-specific range assessment (RA), in which an
AR involving various protective measures such as monitoring is
implemented, will determine if the protective measures are sufficient
to safeguard safety, human health, and the environment. If the
protective measures in and of themselves are not sufficient at a
specific military range, the range evaluation (RE) process will be
initiated. The RE process includes more detailed data collection to
support a site-specific safety risk assessment and a site-specific
human health and ecological risk assessment. At the completion of the
RA and/or RE, the Department of Defense will document its decision
after input from Federal and State regulators, American Indian tribes,
and the public. Recurring reviews will also be conducted. The final
phase is an administrative close-out of range responses that have been
completed.
In this proposed rule, the Department of Defense articulates the
nature and extent of its environmental response authorities under DERP,
10 U.S.C. 172, and CERCLA. It is doing so in the form of creating a
formal military range response process based on the general delegation
of response authority given to the Department of Defense by Congress
under DERP and by the President under CERCLA; the specific emphasis in
DERP and 10 U.S.C. 172 on limiting risks posed to human health and the
environment by military munitions (including UXO) and military ranges;
and the unique nature of the risks posed by military munitions and
military ranges, for which the Department of Defense alone has special
responsibility and expertise.
IV. Section-by-Section Analysis
A. Purpose, Scope and Applicability
This proposal applies to all the DoD components, such as the Office
of the Secretary of Defense, the Military Departments, the Chairman of
the Joint Chiefs of Staff, the National Guard Bureau (NGB), and the
U.S. Coast Guard (USCG). It applies to military munitions on closed,
transferred, and transferring military ranges previously or currently
owned by, leased to, or otherwise possessed or used by the United
States. These military ranges may not be under the administrative
control of the Secretary of Defense (or the Secretary of War prior to
1949); however, the munitions themselves remain under the jurisdiction
of the Secretary of Defense. For this reason, this proposal applies to
military munitions on closed, transferred, or transferring military
ranges where the range itself is under the administrative control of
another Federal agency or property owner, provided that the activity
that led to the munitions being on those ranges was in support of the
Department of Defense's national defense or national security mission.
For example, the national laboratories under the U.S. Department of
Energy (DOE) conduct research, development, training, and evaluation of
military munitions on behalf of the Department of Defense. Similarly,
USCG conducts training activities involving the use of military
munitions as part of their mission in support of the Department of
Defense's national defense mission. In these cases the munitions remain
under the jurisdiction of the Secretary of Defense, but the range may
fall under the administrative control of the Secretary of Energy or the
Secretary of Transportation. This rule uses the term ``Federal Land
Manager'' to refer to Federal agencies having or clearly anticipated to
receive jurisdiction, custody, or control of land affected by this
proposal. The scope of this proposal is thus not inconsistent with DERP
(10 U.S.C. 2701(c)), CERCLA, and EPA's military munitions rule.
In some instances, however, the United States does not own the
property utilized as a military range but instead leases or leased the
property, or otherwise possesses, possessed or used the property.
Additionally, the land could be owned by a State entity, as when
National Guard activities are conducted. For this reason, this proposal
would be applied to military ranges owned by an entity other than the
United States but where military activities, such as operation of a
range by the NGB,1 have occurred.
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\1\ The NGB will be the Department of Defense agency
responsible for evaluating and implementing response actions on
closed, transferred, and transferring military ranges that are
owned, leased, or otherwise possessed by a State National Guard if
NGB validates that the military range is or was used for a military
purpose. The DoD point of contact for military ranges owned or
leased by a State National Guard will be located at the NGB.
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This rule does not apply to any closed, transferred, or
transferring military ranges that are subject to response activities
pursuant to any specific statutory authority (e.g., Title X of Pub. L.
103-139, DoD Appropriations Act, 1994, Conveyance of Kaho'olawe Island,
Hawaii to the State of Hawaii,
[[Page 50798]]
where Congress has mandated special response actions, and a special
cleanup agreement was developed between the Secretary of the Navy and
the State of Hawaii) or pursuant to any agreements that were negotiated
prior to the effective date of this rule and that cover military
ranges. However, in either case, should any aspects of this proposed
rule be useful in making a given response more efficient or cost-
effective, then, upon mutual consent of the parties to the agreement,
nothing in this rule would prevent the response from being so adapted
for use at such a range. This rule also does not apply to ranges
located outside the United States, Puerto Rico, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands, or the Virgin
Islands.
Under CERCLA Section 120(e), the DoD component must enter into an
interagency agreement with the EPA Administrator ``for the expeditious
completion * * * of all necessary remedial action'' at a DoD site on
the National Priorities List (NPL). Where a closed, transferred, or
transferring range was identified and included in the interagency
agreement for an NPL site, the interagency agreement, even if
negotiated prior to the effective date of this rule, will govern. If
the interagency agreement provides that subsequently identified areas
of concern are included automatically in the interagency agreement,
then for purposes of Sec. 178.2(b)(2), such subsequently identified
areas of concern would be considered to be ``identified and included in
an interagency agreement for an NPL site.'' As stipulated in the
preceding paragraph, nothing would prevent the response from following
this rule instead, upon mutual consent of the parties to the agreement.
If the range was not ``identified and included in the interagency
agreement for an NPL site,'' this rule will be utilized. In some cases,
UXO investigations or response actions are underway on closed,
transferred, or transferring ranges at facilities where there are
unresolved issues concerning the scope of the interagency or Federal
facility agreement. This proposal does not apply to ongoing UXO
response actions at such facilities, unless mutually agreed to by all
parties to the interagency or Federal facility agreement.
Finally, this proposal does not apply to explosives or munitions
emergency responses, as defined in EPA's military munitions rule (62 FR
6622, February 12, 1997). In the final rule, EPA defines an explosives
or munitions emergency as all immediate response activities by an
explosives and munitions emergency response specialist to control,
mitigate, or eliminate the actual or potential threat encountered
during an explosives or munitions emergency. As defined by EPA, an
explosives or munitions emergency response may include in-place render-
safe procedures, treatment or destruction of the explosives or
munitions, and/or transport of those items to another location to be
rendered safe, treated, or destroyed. Explosives and munitions
emergency responses can occur on either public or private lands. The
Department of Defense may not be the first responder to a military
munitions emergency (for example, the local police or another Federal
agency may be the first to arrive on the scene).
Under EPA's military munitions rule, explosives or munitions
emergency response activities are exempted from most requirements under
RCRA. Because explosives or munitions emergencies may or may not
involve military munitions on a closed, transferred, or transferring
military range, the Department of Defense has decided to exclude these
activities from the scope of this rule and to conduct the activities in
accordance with the provisions of EPA's military munitions rule. The
fact that an area has been subject to an emergency response in the past
should not, however, preclude that area from being subject to the range
rule. The Department of Defense solicits comments on proposed
Secs. 178.1--178.3, which address the purpose, scope, and applicability
of this rule.
B. Definitions
This proposal includes definitions for several terms that clarify
the scope and applicability of this proposed rule. While the Department
of Defense is not separately defining the nine criteria from the
National Contingency Plan (NCP), the nine criteria mentioned in
Secs. 178.7(c) and 178.9(d) have the same meanings as the nine criteria
as set out in the NCP. The Department of Defense requests comments on
the following proposed definitions.
1. Military Munitions
This proposal includes a definition of military munitions in
Sec. 178.4(g). This definition is the same as the definition in EPA's
final military munitions rule (62 FR 6622, February 12, 1997).
2. Military Range
This proposal includes a definition of a military range in
Sec. 178.4(h). A military range is any land mass or water body that is
or was used for the conduct of training, research, development,
testing, or evaluation of military munitions or explosives. A military
range can be used for many purposes. Examples include missile,
artillery, aerial bombing, tank, naval surface warfare, mortar,
antiaircraft, grenade, small arms, demolition, and multipurpose ranges
where combined arms are utilized. The definition in Sec. 178.4(h) is
the same as EPA's definition in the final military munitions rule (62
FR 6622, February 12, 1997), except that additional information is
provided on activities and locations that do not meet the definition of
a military range.
A classic setup of a live fire area military range consists of a
central area called the ``impact area.'' The impact area varies in size
depending on the type of military munitions employed. The impact area
contains the targets that are fired upon and thus poses the greatest
potential safety risk due to the concentration of military munitions
employed (i.e., the impact area will normally contain the greatest
concentration of UXO). Surrounding the impact area is a buffer zone.
This area is not intentionally fired into but may include some UXO;
thus military activities are not conducted in this area. Outside the
buffer zone are the firing/release points from which military munitions
are employed (e.g., fired, dropped, placed).
Another example of a military range includes designated land and
water areas set aside for the purpose of training and conducting
``maneuvers.'' These maneuver areas are used to conduct military
exercises and create an environment that simulates an area of conflict
or an active war zone. During these maneuvers, training aids and
military munitions simulators are used and expended. Examples are
training ammunitions, artillery simulators, smoke grenades,
pyrotechnics, mine simulators, and riot control agents used to simulate
a chemical agent attack. Even though these training aids and simulators
are used to create an environment that is safer than a war or open
conflict, they may still pose an explosives safety concern. For this
proposed rule, the definition of military ranges includes current and
former designated maneuver areas on land and water.
Airspace and water or land areas underlying airspace used for
aircraft-related training, testing, or research and development where
military munitions were not used do not fall within the definition of
military range solely as a result of the aircraft-related activities.
Examples of airspace and underlying water or land areas that would not
be considered a military range for purposes of this rule include areas
used for air-to-air training, electronic scoring site ranges, military
operations areas, and
[[Page 50799]]
military training routes (MTR). Electronic scoring site ranges provide
bomber aircraft with a weapon drop score without the aircraft's
actually releasing any military munitions. Military operations areas
are areas that separate certain military activities (e.g., air-to-air
training) from civil and military aircraft traffic under instrument
flight rules. MTRs are used to conduct low-altitude navigation and
tactical training in excess of 250 knots air speed below 10,000 feet
mean sea level altitude. No military munitions are dropped or fired in
MTRs.
A water range is another example of a military range. CERCLA and
DERP address releases or threats of releases of hazardous substances,
pollutants, and contaminants into the ``environment,'' which is defined
in CERCLA as including navigable waters, the water of the contiguous
zone, and ocean waters.2 In general, in 33 CFR 2.05-1 to
2.05-35, the terms ``navigable waters,'' ``contiguous zone,'' and
``ocean waters'' are defined as being, respectively, the internal
waters of the United States and its coastal waters out to a distance of
3 nautical miles, 12 nautical miles from the U.S. coast, and 200
nautical miles from the U.S. coast. As a result, the DoD ranges located
on water courses within these three zones are likewise subject to this
proposed regulation.
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\2\ CERCLA Section 101(8) defines ``environment'' as including
``(A) the navigable waters, the water of the contiguous zone, and
ocean waters of which the natural resources are under the exclusive
management authority of the United States under the Magnuson Fishery
Conservation and Management Act of 1976, and (B), any other surface
water, ground water, drinking water supply, land surface or
subsurface strata, or ambient air within the United States or under
the jurisdiction of the United States.''
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Over the life of a military range, the types and quantities of
military munitions expended on the range vary greatly due to changes in
mission and technology. An important characteristic of military ranges
is that their use and/or the military munitions employed normally
changes over time. As technology improves and weapons systems are
replaced, new types of military munitions are developed and employed.
Because of limited land availability and safety requirements, new
ranges are often constructed on top of old ranges. Thus a variety of
military munitions (including UXO) exist on a military range because of
the different types of weapons that have been employed on a particular
range during its life cycle. Changes in training needs over the years
also contribute to the occurrence of several classes and types of
military munitions at military ranges.
Historic battlefields are not covered by this proposed definition
of a military range. Battlefields were used for actual combat and thus
were not used for training, research, development, testing, and
evaluation. The Department of Defense has transferred areas that were
historic battlefields and may contain UXO from past conflicts. Even
though these areas are not ``military ranges'' and are not covered by
this proposal, the Department of Defense will continue to provide
explosive ordnance disposal (EOD) support to civil authorities for any
UXO discovered on historic battlefields.
3. Closed Range
This proposal includes a definition of a closed range in
Sec. 178.4(d). This definition was provided in EPA's proposed military
munitions rule (60 FR 56476, November 8, 1995) and is consistent with
the final military munitions rule (62 FR 6622, February 12, 1997).
Closed ranges are ranges that have been taken out of service and either
have been put to new uses that are incompatible with range activities
or are not considered by the military to be potential range areas.
Examples of incompatible use may include the construction of a
permanent building not compatible with range operations or training,
such as houses, schools, hospitals, clinics, commissaries, libraries,
and other such buildings. Closed ranges remain under the control of the
military. Closed ranges would include those ranges that are on Federal
lands or otherwise possessed by the military, determined at the
respective military department's Secretariat-level position to be
closed, and where future use is incompatible with range activities.
Areas that meet the definition of a closed range will be regulated
under this rule.
4. Transferring Range
This proposal includes a definition of a transferring range in
Sec. 178.4(n). Under that definition, a military range that is proposed
to be leased, transferred, or returned from the Department of Defense
to another entity, including Federal entities, is a ``transferring
range.'' To qualify as a military range ``proposed'' to be leased,
transferred, or returned, within the meaning of this rule, the proposal
must be concrete and specific. Further experience likely will be needed
to develop and clarify this definition, particularly the requirement
that a proposal be ``specific and concrete.'' DoD notes that where a
Federal agency might receive jurisdiction, but the transfer is not
sufficiently concrete or specific to be ``proposed'' within the meaning
of the definition, the agency may sit on the project team for
informational purposes only, and such participation is encouraged.
A number of military ranges are proposed for transfer outside of
the military control. Transferring ranges include military ranges
associated with the BRAC program, as well as any other property
transactions in which military ranges are transferred to nonmilitary
entities. It is important to note that, immediately prior to becoming a
transferring range, a military range could be considered closed,
inactive, or active. Transferring ranges remain under military control
until they have been officially transferred to another party. Transfer
may be by deed or lease, or by return under the terms of a withdrawal,
special-use permit or authorization, right-of-way, public land order,
or other instrument under which the Department of Defense used the
property. An active range will not be considered to be a ``transferring
range'' until the transfer is imminent. While an active or transferred
range is easier to identify, classifying a military range as
``transferring'' is more complex, and is based on multiple site-
specific factors. Reasonably anticipated land uses for the range
property will be identified and agreed to prior to the land transfer.
In some situations, the Department of Defense may not transfer a
military range or a portion of the range if during the assessment it is
determined that the risks cannot be reliably managed or reduced (unless
such transfer is congressionally mandated). If technology limits the
range response and thus restricts the use of the land, but later
improvements in technology allow for a change in the designated land
use, the Department of Defense is responsible for conducting a later
response, if doing so is consistent with the land transfer agreement
and reasonably anticipated land uses that were originally identified.
Areas that meet the definition of a transferring range will be
regulated under this rule. EPA's military munitions rule does not
address transferring ranges; the Department of Defense has included a
definition in this proposal to more comprehensively address the issue.
5. Transferred Range
This proposal includes a definition of a transferred range in
Sec. 178.4(m). A transferred range is a military range that has been
released from military control. FUDS are areas that were once
controlled by the Secretary of Defense and may have portions that were
used as military ranges. Transferred ranges
[[Page 50800]]
include those being identified in the FUDS program. These areas could
have been transferred to other Federal agencies (U.S. Department of the
Interior (DOI), DOE, etc.), State or local governments, or private
citizens.
The transfer may have been by deed or lease, or by return under the
terms of a withdrawal, special-use permit or authorization, right-of-
way, public land order, or other instrument under which the Department
of Defense used the property. For example, public lands may be
federally owned lands under the jurisdiction of the Secretary of the
Interior and administered by the Bureau of Land Management (BLM). These
lands may be withdrawn (by statute, executive order, or public land
order) from the operation of the public land laws and reserved for
other Federal agencies' uses, including the Department of Defense.
Agencies holding withdrawn public lands that they no longer need are to
file with BLM a notice of intent to relinquish such lands (43 CFR 2372;
41 CFR 101-47.202-6). The BLM will then determine if the lands are
suitable for return to the public domain for administration under the
public land laws. If the lands are no longer suitable for return to the
public domain, they will be processed as ``real property'' under the
Federal Property and Administrative Services Act of 1949, as amended
(40 U.S.C. 472), or under the property management and disposal
provisions of the defense base closure laws, as applicable.
6. Inactive Range
This proposal includes a definition of an inactive range in
Sec. 178.4(f). As defined in EPA's military munitions rule (62 FR 6622,
February 12, 1997), an inactive range is ``a military range that is not
currently being used, but that is still under military control and is
considered by the military to be a potential range area, and that has
not been put to a new use incompatible with range activities.'' The
Department of Defense has military range areas that have been used in
the past for training, research, development, testing, or evaluating
military munitions. Inactive ranges are held in reserve in case the
Department of Defense has a change in mission that requires additional
range areas. Some inactive ranges remain under military control to
protect national security, as the activities conducted on them were
classified. Therefore, inactive ranges would not be considered
``closed'' under this rule. Inactive ranges are not covered by this
proposed rule or EPA's military munitions rule, but they do fall under
existing environmental and DoD regulations if the source of possible
contamination is other constituents, not military munitions, or if
contamination from range activities is moving off the range. Active and
inactive ranges will be addressed in a forthcoming DoD policy to be
issued by DDESB on proper safety-based management techniques for such
sites. The Department of Defense will issue guidance on when an
inactive range should be classified as a closed range. Factors in this
decision-making process include future testing, training, and new
weapons development needs, as well as needed range rotation.
7. Active Range
This proposal includes a definition of an active range in
Sec. 178.4(b), which is the same as the definition of an active range
in EPA's military munitions rule (62 FR 6622, February 12, 1997). The
scope of the DoD range rule is limited to closed, transferred, and
transferring ranges; a definition of active ranges is included in this
proposal for the sake of clarity.
8. Unexploded Ordnance
This proposal includes a definition of UXO in Sec. 178.4(o). This
definition is the same as the definition of UXO in EPA's military
munitions rule (62 FR 6622, February 12, 1997). Military munitions are
designed to be safe during storage and handling operations and will not
normally detonate until an item is actually employed. A military
munition becomes UXO only after it has been employed and failed, in
total or in part, to function properly. Due to the complex design of
many military munitions and the large number of military munitions
employed, some of them are almost certain to become UXO. The highly
likely presence of UXO on closed, transferred, and transferring
military ranges creates a safety risk.
9. Other Constituents
This proposal includes a definition of other constituents in
Sec. 178.4(j). Due to their complexity and varied functions, military
munitions may contain many other constituents that may be a source of
concern on military ranges.
Military munitions can be composed of propellants, explosives, and
pyrotechnics (PEP); chemical agents; metal parts; and other inert
components. When munitions are employed on a range, the PEP components
generally are consumed, leaving behind metal parts and other inert
components that may be distributed in small pieces across a large area.
The risk caused by the metal parts and other inert components will
depend on the types of materiel used, the susceptibility of this
materiel to leaching and other transport mechanisms, the physical
characteristics of the range (the climate, amount of rainfall, soil
type, etc.), and the quantity of military munitions employed. These
components of military munitions, if released into the environment, are
included in the definition of other constituents.
A small percentage of military munitions employed on military
ranges fail to function as intended, which can result in UXO remaining
on the range. UXO can pose a safety hazard (as discussed in Section
IV.C.1. of this preamble, Safety) and/or an environmental concern. PEP
compounds in military munitions could be released to the environment
when the munitions casing is damaged or deteriorated. To a lesser
extent, metal or other materials could build up over time in the
environment. While UXO itself is not considered an other constituent,
compounds released from the UXO are included in the definition of other
constituents. At significant concentrations, other constituents may
present explosives safety risks.
Other constituents that may be identified on military ranges also
could include fluids from vehicles used as targets or from activities
that occurred prior to the area's being used as a military range (e.g.,
landfill, industrial operations). Other constituents that are present
on a military range and that fall under other regulatory authorities
may be addressed by the appropriate agency (see Section IV.F.1.b. of
this preamble, Relationship to Other Laws, and Section V, Discussion of
Other Major Alternatives).
10. Federal Land Manager
This proposal includes a definition of Federal land manager in
Sec. 178.4(e). DERP applies to property ``owned by, leased to, or
otherwise possessed by the U.S. and under the jurisdiction of the
Secretary [of Defense]'' (10 U.S.C. at 2701(c)). For simplicity, the
Department of Defense has used the term ``Federal land manager''
throughout the rule to refer to a Federal agency that has received or
is clearly anticipated to receive jurisdiction, custody, or control
over the property. The phrase ``clearly anticipated to receive
jurisdiction'' refers to situations where the transfer to the Federal
agency is statutorily established; legally required; incorporated in a
legislative proposal formally supported by the Administration;
designated under the land reuse plan; or where the transfer to the
Federal agency is otherwise recognized as being clearly anticipated,
[[Page 50801]]
such as where both the Federal agency and the DoD component have agreed
that such transfer will take place. Where a Federal agency has been
proposed to receive jurisdiction, custody, or control of a former
range, but the agency is not yet a Federal land manager as defined in
this rule, the agency may sit on the project team for informational
purposes only.
11. American Indian Tribe
This proposal includes a definition of American Indian tribe in
Sec. 178.4(c). This term is used in the proposed DoD range rule to
describe Native American tribes and Native Alaskan villages that meet
specific criteria so that they can be afforded substantially the same
treatment as States under this rule, and thus receive a concurrence
role in the range response process. The governing body of the American
Indian tribe must be federally recognized by the Department of
Interior; have an appropriate tribal governing body that performs
health, safety, or environmental functions; and have real property
interests, as defined in Sec. 178.4(l) of this rule, over some or all
of a closed, transferred, or transferring range at which a response,
including pre-response activities, is ongoing or contemplated.
12. Property Owner
This proposal includes a definition of a property owner in
Sec. 178.4(l). The term ``property owner'' as used in this proposal
refers to non-Federal entities that now own property that is a closed,
transferred, or transferring military range, and to Native American
tribes and Native Alaskan villages that own property or land held in
trust by the United States for that tribe or village or its individual
members. ``Property owner'' also includes any non-Federal entity
legally entitled to control access to the property, to the exclusion of
the right of the legal owner to control access, if known to the
responsible DoD component. This situation may exist if the person
legally entitled to control access to the property is different from
the current legal owner (e.g., in lease situations).
C. Summary of Challenges
Military munitions are designed to injure or kill people and/or to
damage or destroy property. Thus, during any environmental response
activity, the presence or suspected presence of military munitions
creates unique challenges due to explosives safety concerns. Before
undertaking any response action on a closed, transferred, or
transferring military range, the Department of Defense must first
consider the explosives safety risks inherent in locating,
investigating, evaluating, and responding to military range areas where
military munitions are known or suspected to be present. The explosives
safety risk is equally great regardless of whether military munitions
(including UXO) or other constituents are being addressed in the
response action. Response personnel, even those specially trained to
deal with the explosives safety hazards associated with military
munitions, must not be exposed to an unreasonable explosives safety
risk in order to address less compelling environmental concerns. The
risk to response personnel increases as the density of military
munitions, e.g., UXO, increases. Additionally, rough terrain and thick
vegetation restrict visibility and mobility, thereby substantially
increasing the explosives safety risks associated with response
activities. Response activities are made more difficult and dangerous
because technology is not yet sophisticated enough to ensure positive
detection, identification, and subsequent removal of all military
munitions in any given area.
1. Safety
The Department of Defense is committted to the management of safety
risks associated with exposure of the public and clearance personnel to
military munitions. As discussed throughout this rule, the explosives
safety risks from locating and clearing unstable materials such as UXO
are very high. The investigation and restoration activities associated
with other constituents present similar risks, as they usually occur in
areas that also contain UXO. The Department of Defense is the
recognized expert in the management of these risks. Federal, State, and
local regulators typically seek DoD's expertise in safely managing
military munitions and other ordnance discovered at non-DoD sites.
Unless the explosive risk is first eliminated or at least reduced,
catastrophic injury or fatalities may result from any response
activity.
Typical military munitions/UXO on military ranges may include:
bombs (up to 2,000 pounds), artillery, mortar, aircraft cannon, or
tank-fired projectiles (20-millimeter through 16-inch), dispensed
munitions, submunitions, rockets, guided missiles, grenades, general
demolition materials, bulk explosives, pyrotechnics, torpedoes, mines,
small arms ammunition, and chemical munitions. Military munitions are
designed to be safe during storage, handling, and transportation. The
fuzes used with these items also have built-in safety features to
preclude arming of the munition until actual employment (firing,
placing, etc.) of the item. It is not until after the munition has been
employed and failed to function (totally or in part) that it becomes
UXO.
Although the fuze is the most sensitive portion of the UXO, the
filler may pose an even greater danger to human health and the
environment. By their nature, high-explosive fillers present risks.
Explosives may deteriorate over time to form sensitive crystals that
could detonate if subjected to heat, shock, or friction. Chemical
munitions contain chemical agents that present additional safety risks.
High-explosive fillers, deteriorated explosives, and chemical munitions
are a few examples of military munitions where the filler itself
requires special safety consideration, even if the fuzing mechanism is
no longer capable of firing.
Fuzes are designed to initiate a train of fire or detonation in
ordnance by an action such as mechanical or electronic timing,
electrical or mechanical energy, impact, radar, chemical, pyrotechnic,
hydrostatic pressure, etc. Once safety devices (such as safety pins,
safety blocks, and arming wires) are removed, a fuze can require one or
more of the following forces to fully arm: acceleration, deceleration,
setback, or centrifugal force. EOD personnel cannot visually determine
if a fuze is armed. Therefore a fuze must be considered armed and ready
to fire if the right force is applied. For example, a clockwork
mechanism fuze that has armed but failed to function contains a firing
pin under spring tension which, if disturbed, could fire. Also, many
military munitions pose even more serious risks because they have a
secondary system that will, should the munition fail to operate as
intended, detonate the munition if it is disturbed in any way.
Addressing the unique problems associated with UXO on military
ranges requires that knowledgeable UXO personnel and specialized safety
procedures be used. The acute hazard associated with the presence of
armed and potentially deadly UXO is the primary factor that drives the
sequence of investigative and remedial actions. In essence, acute
safety concerns direct and determine the sequence of site activities.
Once the explosives hazards are identified and addressed, further
response actions may occur. In some cases, normal activities may be
delayed (e.g., drilling monitoring wells in UXO areas), or additional
requirements may have to be met (e.g., UXO surface
[[Page 50802]]
clearance, followed by downhole magnetometry at regular intervals to
detect subsurface ordnance present in the area where a well is being
drilled). The most acute risk is to the response personnel who come
near the UXO. In some cases, the risk may be so high as to preclude a
clearance action.
2. Current Technological Capabilities
a. Military munitions/UXO detection: Military munitions detection,
which is often referred to as ordnance detection, has been undertaken
since the first military munitions were found on the battlefield. The
clearing of military munitions requires personnel to have the
capability to safely and precisely locate these items regardless of
whether they are lying on the surface, covered with heavy overgrowth,
buried deeply in the soil, or located underwater and potentially buried
in the sediments.
Several recent tests and evaluations have identified shortfalls in
UXO detection technology. Detection technologies can be hampered by the
depth of penetration of the munition. The penetration depth is
dependent on the munition's velocity upon impact, size, weight, shape,
angle of entry, and the type and composition of soil. Obvious physical
signs made by military munitions, such as entry holes, are quickly
erased by natural weather processes or are often destroyed by other
impacting ordnance. The growth of grass and brush compound the problem
by covering munitions lying on the surface. Since many of the ranges
covered by this proposed rule have not been active for many years,
vegetation often hinders the ability to detect the munitions. Methods
to address the problems of dense vegetation, such as deforestation and
controlled burns, can cause other environmental problems. Underwater
items often are buried by silt or covered with marine growth. In
addition, military munitions on water ranges can be greatly affected by
coastal storms and tidal actions that can immerse the military
munitions in a bed of sediments or uncover military munitions that were
previously embedded in sediments. Furthermore, the depth or condition
of a water range may make analysis, much less retrieval, effectively
impossible, or may pose an unreasonable risk to the health and safety
of range response personnel.
In summary, items that affect UXO detection include: munition size,
composition, depth, and orientation; soil composition and geology;
vegetation and terrain; and background interference from metal scrap.
Strides will have to be taken to eliminate the high degree of
uncertainty associated with UXO detection. Safe clearance operations
require technologies that can detect and determine the precise location
of a broad spectrum of military munitions in a wide variety of soil and
surface conditions, both on land and under water. Safe clearance
operations also require the capability to internally examine items to
identify hazardous contents, including fuzing as well as filler
material.
Detection and location of military munitions depend primarily on
the ability to distinguish their physical characteristics from those of
the surrounding environment. Characteristics that have the most impact
on the effectiveness of current detection and removal technologies
include the materials used in the ordnance case, fuzing, and filler.
The majority of casings are constructed of ferrous (i.e., iron-
containing) metal. Nonferrous metals and plastics, however, are used
for some submunitions and land mines. Nonferrous military munitions
make detection much more difficult and subsequent clearance more
dangerous. Fuzing systems include combinations of ferrous and
nonferrous metals, plastics, electrical circuits, and small amounts of
explosive materials. Filler materials include a variety of high
explosives, chemical agents, pyrotechnics, and inert items such as
concrete and sand.
Common methods used to detect military munitions include visual
searches, magnetometers, electromagnetic induction (metal detectors),
and ground-penetrating radar (GPR). A visual search for military
munitions is restricted to the surface and often is hindered by
vegetation and terrain. Magnetometers are the most commonly used form
of detecting military munitions below the surface and can be adapted
for underwater use. Low-sensitivity magnetometers have a limited depth
of detection capability, while high-sensitivity magnetometers have a
large number of false detections. Magnetometers can only detect
munitions that contain ferrous metal. Metal detectors can locate both
ferrous and nonferrous metallic objects and can be adapted for use
under water; however, metal detectors can only detect munitions that
are located very near the surface. GPR can collect rough images of
buried metallic and nonmetallic munitions, but its effectiveness is
severely limited in certain soil conditions. In general, the material
used in the construction of military munitions, the munition's size and
depth, and the soil's composition all affect the effectiveness of
available technology.
(1) Advanced technology demonstrations. Congress authorized and
appropriated funding in fiscal years 1993 to 1995 to conduct unexploded
munition technology demonstrations. In response, the U.S. Army
Environmental Center established the UXO Advanced Technology
Demonstration (ATD) Program with technical support from the U.S. Naval
EOD Technology Division. The objective of this program was to evaluate
and identify innovative, cost-effective, commercially available systems
for the detection, identification, and removal of UXO. These
demonstrations have established a technology baseline for UXO detection
and removal. In addition, the ATDs have progressively monitored state-
of-the-art UXO technology advancements.
There are four separate and distinct projects associated with the
multiyear Congressional funding:
(1) Jefferson Proving Ground (JPG) Phase I ATD, conducted during
summer 1994.
(2) JPG Phase II ATD, conducted during summer 1995.
(3) Live Site ATDs, conducted during summer 1995.
(4) JPG Phase III ATD, conducted during summer and fall 1996.
The JPG Phases I through III ATDs were conducted at a controlled
test site, which contained numerous types of inert ordnance precisely
located at various depths and orientations. The Live Site ATDs were
conducted at five sites across the United States that contained live
ordnance. Commercial companies were invited to demonstrate their
system's ability to detect, characterize, or remotely excavate UXO.
To date, more than 60 technologies have been demonstrated and
evaluated as part of the ATD program. The demonstrators represented
airborne, ground vehicle, and man-portable platforms; magnetometer,
GPR, electromagnetic induction, and infrared sensors; target processing
software; and excavation technologies.
To date, technology performance ATD results have shown systems
exhibiting ordnance detection capabilities ranging from 0-85%. JPG
Phase III results, although not yet published and released, once again
indicate increased detection performance. While commercial technology
has exhibited less than desirable capabilities (especially evidenced
during JPG Phase I), private industry has made strides to identify
technology performance weak points. Phases II and III show evidence of
increased private industry teaming efforts, commercial research and
development efforts, and clearer understanding of government needs.
[[Page 50803]]
Combined, this translates into enhanced systems and capabilities.
However, throughout all ATDs, UXO detection technology continues to
exhibit extremely high false alarm rates and minimal or no
discrimination ability. Systems are unable to determine if a detected
anomaly is ordnance or a piece of scrap metal. For example, if 100
ordnance items are located on a range scheduled for remediation, a
technology may be able to detect 85 of the 100 UXO items. However, the
demonstrator would also falsely identify over 200 other locations. For
excavation purposes, this translates into many empty holes and
unnecessary excavation.
(2) Other assessments of UXO technology. The Army Corps of
Engineers recently evaluated UXO detection technology applications at
33 specific sites. The Army Corps of Engineers stated that, in general:
[T]hree [main types of UXO sensor] technologies [(magnetometry,
infrared, and ground-penetrating radar)] for the detection and
location of [UXO] tend to dominate. While other evolving technology
is promising, there is considerable development yet remaining. The
most important observation, however, is that there is no single
technology that can accomplish this task unambiguously. For all
their merits, neither magnetometers, GPR, nor [metal detectors]
alone can assure more than a modicum of success probability. While
each is a powerful technology with distinct advantages, none has the
breadth of capability to interpret all of the phenomena that are
typically encountered in the search for [UXO]. This includes the
capability to discriminate [UXO] from background artifacts, the
ability to resolve individual entities below-ground, and the ability
to determine depth below the surface independent of
geology.3
\3\ U.S. Army Corps of Engineers, ``Sensor Technology Assessment
for Ordnance and Explosive Waste Detection and Location,'' page 134
(March 1, 1995).
---------------------------------------------------------------------------
Of the 28 systems the Army Corps of Engineers evaluated, only 5
were rated above average. Four were rated as average, while 19 were
rated as below average. The Army Corps of Engineers concluded that
``the vast diversity of ordnance * * * coupled with the very nature of
its designed use * * * renders the detection and location of [UXO] a
very difficult task.''
Additionally, the DoD Inspector General has reviewed UXO detection
technologies and stated that ``the technology currently employed to
detect and remove ordnance is primitive and labor intensive.''
4 In a 1994 report, the DoD Inspector General stated:
\4\ The Department of Defense, Inspector General, Memorandum for
Deputy Under Secretary of Defense (Environment Security), ``Review
of Policies and Procedures Guiding the Cleanup of Ordnance on
Department of Defense Lands,'' page 35 (November 22, 1994).
---------------------------------------------------------------------------
To date, there has been limited success in identifying UXO on or
near the cleared surface. Detecting and identifying UXO underground
present a much greater challenge * * *. We found that relatively
primitive detection and ``pick and shovel'' removal methods are
typically used for ordnance and explosive waste cleanup. The basic
approach is to remove as much vegetation as possible, mark off
grids, then use crews with hand held magnetometers to ``sweep'' the
area. The magnetometers will detect any metal to a maximum depth of
approximately three feet. When a metal object is detected, it is
exposed by careful hand excavation. Most of the objects identified
through that procedure are simply non-explosive scrap metal.
However, when UXO is found, it is either destroyed in place or
removed to a safe location for destruction. Those procedures are
usually labor intensive and thus very expensive. The dangerous
nature of the work requires the use of highly trained Explosive
Ordnance Disposal personnel.5
---------------------------------------------------------------------------
\5\ The Department of Defense, Inspector General, Memorandum for
Deputy Under Secretary of Defense (Environment Security), ``Review
of Policies and Procedures Guiding the Cleanup of Ordnance on
Department of Defense Lands,'' page 35 (November 22, 1994).
The Inspector General concluded that UXO cleanup operations were
``relatively simplistic, labor intensive, sometimes environmentally
disruptive, and expensive.'' 6 Thus, despite the efforts
placed on developing effective detection technology, UXO detection
technology cannot currently support a totally efficient response
effort.
---------------------------------------------------------------------------
\6\ The Department of Defense, Inspector General, Memorandum for
Deputy Under Secretary of Defense (Environment Security), ``Review
of Policies and Procedures Guiding the Cleanup of Ordnance on
Department of Defense Lands,'' page 42 (November 22, 1994).
---------------------------------------------------------------------------
b. Clearance technology and activities: In earlier years, military
munitions generally were detonated in place. Even now, detonation in
place is a primary response when moving a munition presents a safety
risk. Section IV.C.1 of this preamble, Safety, describes some of the
basic elements that affect the explosives safety risk of UXO. To
accomplish range clearance, a series of complex detection and location
tasks must be undertaken, such as locating surface and subsurface
objects, distinguishing if the object is or may be a munitions item,
and identifying the type of device and the type of filler used. Once
located, there are two types of clearance methods available: point
recovery and area recovery. Point recovery relies heavily on
technologies to locate possible ordnance items and uses current
construction, mining, and drilling technologies to unearth the detected
objects. Area recovery is the removal and sifting of all soil to a
certain depth, utilizing heavy equipment to remove ordnance items and
debris.
The safe excavation of buried military munitions requires the
removal of large quantities of soil. As the clearance depth increases,
fewer military munitions are found, but the items that are found
typically contain large amounts of explosives. The precise location of
the buried items becomes more difficult, so their recovery often
becomes a major excavation effort. Both methods are labor intensive,
time-consuming, and expensive. They also present a high risk of injury
or death to clearance personnel due to the larger amounts of explosives
in the buried munitions. Results from the demonstration at JPG showed
that robotic excavation of located UXO is feasible. Robotic responses
are time-consuming, however, and could have a significant adverse
impact on the speed of response operations if a large quantity of UXO
requires excavation.
c. Other constituents: This rule addresses military munitions and
other constituents on a military range. The Department of Defense
recognizes that other constituents include materials that are uniquely
military in nature. EPA has not established a scientific environmental
baseline relative to fate, transport, and toxicological impact of these
materials, or the degradation products on the environment. Although
some scientific data have been collected on some of these materials on
a site-specific basis, these data cannot be directly extrapolated to a
national risk analysis profile. The Department of Defense will need to
gain a better understanding of the adverse environmental impact, if
any, of these uniquely military materials through ongoing research and
development. In order to ensure the most effective response to other
constituents that are uniquely military materials on ranges, the
Department of Defense will prepare and implement an overall technology
research and development plan based on information needed to complete
the range hazards analysis and range response prioritization.
3. Technology Development
The Department of Defense recognizes the potential negative
environmental impacts presented by UXO and is committed to reducing the
quantity of UXO generated to the greatest extent possible. This
commitment is evidenced across the life-cycle management of military
munitions. The UXO reduction effort begins during the design phase of
[[Page 50804]]
new munitions, where attempts to produce ``green munitions'' by
eliminating toxic components are underway. Significant research and
development efforts are also underway to find environmentally
acceptable ways to dispose of or destroy munitions at the end of their
life cycle. For example, the Department of Defense now is fielding a
UXO tracking system based on geo-prepositioning technology. This
tracking system is designed to provide range managers with the
location, type, and quantity of UXO and will assist them in reducing or
eliminating unidentified UXO during routine range sweep operations.
Finally, fully recognizing the limits of current technology to reliably
find subsurface UXO, the Department of Defense is committing resources
to develop, in concert with the private sector, new and emergent
technologies that will improve the ability to locate and eliminate UXO.
Therefore, the Department of Defense sees a pressing need for
additional research in these areas. This is particularly true when
safety considerations prevent entering the range to conduct site-
specific investigations of other constituents or when the available
methods to address UXO, such as a large-scale excavation, are known to
have serious environmental impacts.
While detecting, approaching, detonating, and even in some cases
excavating and moving UXO is possible, the process for assessing ranges
and for evaluating alternatives for site-specific responses provides
only limited opportunity for technological advancement. Due to the
current need for advancement in these areas, both here in the United
States and throughout the world, the Department of Defense believes
that there must be a commitment to conducting research and technology
development in these areas separate from the actions being taken at
specific ranges. Since fiscal year 1993, Congress authorized and
appropriated $25 million for a DoD program at JPG to identify and
demonstrate the ``state-of-the-art'' in UXO detection and remediation
technologies. The JPG program did establish what state-of-the-art
detection technology existed and highlighted areas in need of future
development. Congress has authorized and appropriated an additional $5
million (beginning in fiscal year 1997) to continue the ATD Program,
JPG Phase IV.
Opportunities to evaluate and implement new technologies can occur
anywhere from range assessments to recurring reviews. The Department of
Defense is soliciting recommendations on means to integrate research
and technology development into the range response program as outlined
in this proposal.
Realizing that the only true way to eliminate UXO is to reduce the
use of live munitions, the Department of Defense is focusing additional
efforts on greater use of simulators, practice munitions, or less-than-
lethal technology to reduce the quantity of UXO being introduced on
active ranges. It is a fact, however, that to prepare for war, the
nation's servicemen and women must train with live munitions. The
Department of Defense has therefore committed to minimizing to the
greatest degree possible the introduction of UXO into the environment
through aggressive range management practices.
4. Magnitude
Military munitions have been expended in the United States since
pre-Revolutionary War times. Employment of military munitions has
always led to some percentage of the munitions not functioning as
intended, resulting in the presence of UXO. Through the end of the
1800s, the bulk of military munitions was expended in the United States
during armed conflicts. Although no battles other than in Hawaii,
Alaska, Guam, and several other territories have been fought on U.S.
soil in the 20th century, military training and weapons development to
deter and prepare for armed conflicts have resulted in the presence of
military munitions at ranges throughout the country. During both World
Wars, extensive defenses were established along the Atlantic and
Pacific coasts. Many of the military installations established to train
and support U.S. armed forces during World War II continued to use
military ranges throughout the Cold war era. As the extent of the U.S.
military force's structure varied throughout the 20th century, military
installations have expanded or decreased operations, and some have
ceased operating entirely.
a. Transferred ranges: Many transferred ranges are a subset of
FUDS, but not all of them qualify for the FUDS program. The FUDS
program has identified approximately 8,000 former DoD properties. Of
these, fewer than 1,000 have the potential to be classified as
transferred ranges. The largest amount of acreage affected resides on
the 169 sites identified on DOI-controlled lands. The current estimate
is that more than 7 million acres of DOI property potentially contain
military munitions. A large number of these DOI sites are suspected of
having been used as military ranges during the World War II era. The
Department of Defense may identify transferred ranges through archive
searches, aerial photography, interviews with past employees, and other
available sources of documentation.
b. Transferring ranges: Transferring ranges are frequently the
result of closure decisions under BRAC. The Department of Defense also
leases properties from other parties for use as military ranges. When a
decision is made to terminate a lease, the affected range will be
classified as a transferring range. In addition, the Department of
Defense can excess property that may contain military ranges. However,
the Department of Defense has established policies over the past decade
to prevent the release from DoD control of additional properties
containing military munitions that may pose risks to the public.
c. Closed ranges: Closed ranges are located on active military or
National Guard installations. Military ranges on active military
installations can be divided into three categories: active ranges that
are currently being used to train or test military munitions; inactive
ranges that are being kept in the range inventory in case conflict
would break out requiring an increased level of training in the future;
and closed ranges that are no longer needed for training or testing by
the military and have been converted to an incompatible use. The
Department of Defense began to keep records of inactive and active
ranges in the mid-1970s. The Department of Defense recognizes the need
to identify and maintain an inventory of closed ranges. The Department
of Defense may identify closed ranges through archive searches, aerial
photography, interviews with past employees, and other available
sources of documentation.
D. Overview of the Range Response Process
1. Introduction
Addressing the unique problems associated with military munitions
and other constituents on military ranges demands an approach that
modifies the one taken under the CERCLA response and RCRA corrective
action programs. The most significant reason for this difference is the
absolute need to minimize explosives safety risks in planning,
conducting, and implementing response actions. This is because the
acute hazards associated with military munitions (especially UXO) are
the primary factor driving the scope, sequence, and types of actions
that are possible on the range. These concerns are unique to military
ranges
[[Page 50805]]
in that most actions on CERCLA response or RCRA corrective action sites
do not need to consider an explosion hazard posed by the presence of a
munition or explosive. For example, installation of a monitoring well
at most CERCLA sites does not require surveying the access route for
buried military munitions or conducting a magnetometer survey as the
well is drilled. Another example where range responses require a
different approach is in balancing the risks and impacts of addressing
the military munitions and/or UXO and other constituents against the
risks involved in not taking an action. Minimizing explosives safety
risks while achieving the proper balance between these competing
concerns is the goal of the program described in this proposal.
The requirements of 10 U.S.C. 172, DERP, and CERCLA to respond to
environmental risks at ranges provide a basis for the Department of
Defense to develop a response program that addresses the same factors
as are applied at CERCLA response or RCRA corrective action sites where
military munitions or UXO are not present, but with a different and
overarching emphasis: to protect not only the public and environment in
general but the response personnel as well. In developing this
proposal, the Department of Defense sought to be as consistent as
possible with the overall process used in CERCLA response and RCRA
corrective action programs. In taking this approach to developing this
proposed rule, the Department of Defense drew not only on its
experience and expertise with respect to ranges but also on its own
experience with site investigation and response under CERCLA response
and RCRA corrective action. Further, the Department of Defense drew on
the experience of other Federal agencies. One very important source was
EPA's own reviews of, and recommendations for improving, the CERCLA
response and RCRA corrective action programs.
In developing the response process for military ranges described in
this proposal, the Department of Defense established the following
basic parameters. First, the process must minimize explosives safety
risks; protect human health and the environment; and directly include
the public, American Indian tribes, and appropriate Federal and State
agencies by seeking their active participation throughout the process.
Second, the process should focus on informed risk management decision-
making and risk management actions rather than protracted study. Third,
the process should, where possible, draw on the lessons learned in the
CERCLA response and RCRA corrective action programs, and incorporate
into its basic approach the recommended changes to improving those
programs.
The Department of Defense is developing, in consultation with other
Federal agencies, a conceptual time frame to establish timeline goals
for beginning the first two phases of the range response process. The
Department of Defense expects this conceptual time frame to be included
in the final rule. See also Sec. 178.6(a). Conceptual time frames for
the later three phases will be made publicly available when developed.
2. Program Overview
The process for addressing military ranges has five basic phases.
These are: (1) Range identification, (2) Range assessment/accelerated
response (RA/AR), (3) RE/site-specific response, (4) Recurring review,
and (5) Ending the range response action. A graphical portrayal of the
process appears in figure 1, DoD Range Rule Process Overview. The
demarcations between the phases are mostly for discussion purposes and
are not distinct starting and stopping points. A military range
addressed through this process can fall into more than one phase at any
given time, depending on site-specific considerations.
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The process for conducting response actions at military ranges
integrates site assessment functions into a process that allows for an
informed decision on how to best manage the risks posed by military
munitions and other constituents at the range. Furthermore, the range
response process as outlined in this proposal relies heavily on taking
prompt action to address risks. One of the principal ways the range
response process will achieve this is through implementation of ARs.
ARs use readily available means to address the identified risks posed
by UXO or other constituents (e.g., access controls, techniques to
reduce the migration potential of other constituents), while continuing
the assessment of the range to determine the need for subsequent
actions, such as detailed studies or implementation of more complex
solutions. Under this process, the decision whether to carry out an AR
occurs as soon as there is enough information showing that conditions
warrant such action. Further assessment of range conditions would focus
on gathering additional data to assess the effectiveness of the AR, as
well as on identifying other problems. Any further assessment must
support decisions on how to address the identified risks remaining at
the site. Should site conditions suggest a need for additional studies
or responses, these can take place either through continuation of the
RA/AR phase or, if these studies or actions require long periods to
conduct or implement, by proceeding to the RE/site-specific response
evaluation (SSRE) phase.
As can be seen from the overview flowchart in figure 1, the
Department of Defense is providing the public, American Indian tribes,
and regulatory agencies opportunities for involvement or access to
information at every step of the process. The Department of Defense
sees early and frequent interaction with the public and government
agencies (including American Indian tribal governments) as essential to
the success of this process, as it not only enhances risk management
decisionmaking but also helps prevent disputes over the actions taken.
Emphasis is placed on public, regulatory agency, and American Indian
tribal involvement throughout the process.
3. Programmatic Concepts
a. Public and government agency involvement: In this proposal, the
Department of Defense has committed to involving the public and
government agencies throughout the range response process. The process
provides for this involvement through widely accepted mechanisms such
as public notice and comment periods, public meetings, and public
availability of information. It also expands on these basic mechanisms
through making information on each range as readily accessible to the
public and government agencies as is practical, and by offering
opportunities for public, government agency, and American Indian tribal
interaction directly with the project team conducting the response.
Where public interest is sufficient, the public will be involved
through implementation of a public involvement plan (PIP) that is not
inconsistent with CERCLA.
There are several mechanisms that the Department of Defense intends
to use to involve the public, Federal and State regulators, American
Indian tribes, and other Federal agencies in the range response
process. These mechanisms are not inconsistent with the public
participation requirements under the CERCLA program and, as with
CERCLA, occur at various points in the process. In general, these
requirements (described in greater detail later in this proposed rule)
seek to: (1) Make information on response activities publicly
available; (2) keep the public and appropriate Federal, State, and
local agencies and American Indian tribes aware of planned and
completed actions; (3) solicit written comments from the public and
government agencies on proposed actions, and provide a responsiveness
summary for public comments before the final decision to proceed; and
(4) provide an opportunity for concurrence by the appropriate Federal
and/or State environmental regulatory agencies, American Indian tribe,
and Federal land manager. The responsible DoD component will also be
responsible for operating an information repository where the public
will have access to releasable documents. An administrative record for
all actions will be included in the information repository.
As part of its effort to provide for meaningful regulator and
public participation in the site-specific range response process, the
Department of Defense will provide a technology education program to
assist regulators, American Indian tribes, and the public in obtaining
a layperson's understanding of the complex subject of UXO detection and
removal technology. The objective of the program is not to make the
participants experts in the science of UXO detection and removal
technologies, but rather to increase their general knowledge. At the
RA/AR phase, the responsible DoD component will provide an explanation
of available UXO detection and remediation technologies to the
Restoration Advisory Board (RAB) or Extended Project Team (EPT). This
program will consist of a focused presentation (2 to 8 hours in
duration) on current UXO detection and removal technologies and, if
necessary, technology update presentations (2 to 4 hours in duration)
to capture significant technology advancements that have been made
since the initial presentation. The program's objective will be to
increase the participants' general understanding of the science, its
capabilities and its limitations.
In addition to these means for involving the public and government
agencies, the Department of Defense also is examining other mechanisms
for making information readily accessible. First, as part of the
identification phase of the range response process, the Department of
Defense will identify an official point of contact (POC) for each range
addressed under these provisions. Whenever there is an inquiry by the
public, a tribe, or a Federal, State, or local agency, the POC will be
responsible for providing any relevant and releasable information, or
for providing a formal written response explaining in detail why that
information was not provided.
Second, the Department of Defense plans that the information
contained in the range inventory and tracking system to be established
under the provisions of proposed Sec. 178.6(a)(1) will be readily
accessible to the public, possibly including via the internet. The
Department of Defense is also examining the practicality of making
information about specific ranges (e.g., reports, updates, decision
documents) available through this same venue. In the final rule, the
Department of Defense will specifically address the types of
information that will be available through the internet and how to
obtain it.
Third, as part of the identification phase, the Department of
Defense proposes that it will submit for inclusion in the permanent
land record at the local jurisdiction level for a parcel of land
identified as a closed, transferred, or transferring range, a formal
notice addressing: (1) The identification of the parcel of land as a
known or possible military range, including the unique identifier and
common name assigned to that range; (2) a statement that the land may
have been a military range; (3) a statement about the potential hazards
associated with military ranges; (4) the DoD component to contact for
additional information. As the range progresses through the range
response process, the
[[Page 50809]]
Department of Defense will append summaries of information contained in
formal decision documents to this notice.
Where RABs exist or can be established, they will be utilized to
involve the regulators, American Indian tribes, and the public in this
rule's proposed process. If a RAB does not exist and sufficient
interest to establish a RAB is not obtainable, a mechanism the
Department of Defense is considering to involve the public and
government agencies is the use of EPTs. When a RAB cannot be
established, the Department of Defense will identify interested members
of the community from the RAB solicitation process and seek support for
the establishment of an EPT. An EPT is a highly focused subcommittee
similar to a RAB.7 While most RABs address installation-wide
remedial activities, an EPT is intended to involve the public and other
agencies at the individual military ranges where response actions are
planned and implemented. A primary objective of the EPT is to develop a
common understanding of the scope and proposed approach to the upcoming
range response activities. Under this concept, the EPT consists of the
DoD staff and contractors responsible for planning, conducting, and
implementing response actions at a specific range (i.e., the internal
project team) 8; specific representatives of the public
(where a RAB exists, EPT representatives would be nominated from the
RAB; where a RAB does not exist, EPT representatives would be nominated
from interested members of the community); specific personnel from
Federal and State regulatory agencies (e.g., environmental regulatory
personnel, as identified by their respective agency); and American
Indian tribes and others with direct technical expertise or a
significant interest in the results of the action.
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\7\ DERP, at 10 U.S.C.2705(d), states that the Department of
Defense may permit the establishment of a restoration advisory board
in connection with an installation (or group of installations) where
[the Department of Defense] is planning or implementing
environmental restoration activities.'' Since this proposed rule
establishes a formal process for planning and implementing response
actions at military ranges, creation of EPTs within existing RABs
(or establishment of a RAB for this purpose) will be utilized to the
maximum practicable extent and in accordance with DoD policies and
guidance on the establishment of RABs.
\8\ The project team consists of the responsible DoD component
and, as appropriate, the Federal land manager(s). Federal land
managers will have direct access to information through the project
team. The project team will have meetings, conference calls, and/or
other methods to ensure regular communication and input. The project
team is responsible for:
(1) Scoping of the response action, including but not limited
to, problem definition, establishing data quality objectives,
selection of response alternatives for evaluation, and project
planning.
(2) Preparing all necessary planning documents for conducting
the response.
(3) Preparing all reports (including recommendations on
appropriate responses) and decision documents related to the
response.
(4) Managing the project for purposes of assignment of
responsibilities to any subteams, budget, procurement, allocation of
resources, and resolution or elevation of disputes.
(5) Coordinating response activities with the EPT, the RAB, or
other forums for public involvement.
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EPT meetings should provide opportunities to: (1) Communicate the
initial understanding of the range and the project team's initial
approach for planning and conducting a response; (2) identify issues of
concern; and (3) solicit viewpoints. The success of an EPT depends
largely on the commitment of all the parties to consistent and
continued involvement. With such a commitment, the EPT becomes the
primary forum for presentation and discussion of identified problems,
recommended solutions, and unresolved concerns to the public and the
other Federal or State agencies. Through this exchange, the Department
of Defense can address public, government agency, and tribal concerns
as the response process proceeds, rather than at its conclusion. The
Department of Defense believes that the use of EPTs not only will
foster mutual exchange of ideas, concerns, and technical information at
the working level, but also will allow DoD decision-makers the
opportunity to redirect planned response actions as necessary before
committing to a course of action. The Department of Defense will also
consider other forums for public involvement as the specifics of the
site and the interest of the community dictate. The EPT will be
conducted in a manner that is consistent with the final published rule
on RABs, which was proposed on August 6, 1996 (61 FR 40764-40772) and
is planned to be published in calendar year 1997.
In Sec. 178.14 of this proposed rule, a concurrence role is
included for Federal and/or State environmental regulatory agencies,
American Indian tribes, and Federal land managers when a response will
be conducted on a closed, transferred, or transferring range under
their jurisdiction, custody, or control. The concurrence role
specifically applies to Federal and/or State environmental regulators,
American Indian tribes, and Federal land managers, as appropriate.
Regulatory agencies are given a concurrence role because other
regulatory authorities may apply to a military range. Federal land
managers are given a concurrence role due to the independent statutory
authorities they have pertaining to lands under their jurisdiction,
custody, or control. American Indian tribes are a given a concurrence
role in order to provide them with substantially the same role as
States. Specifically, the Department of Defense will seek review of and
concurrence on the draft decision document identified in Sec. 178.14(d)
in this proposed rule. In addition, the Department of Defense will seek
concurrence on the RA work plans identified under Sec. 178.7(b)(2).
Technical impracticability (TI) and no further action determinations,
as well as requests for applicable or relevant and appropriate
requirements (ARAR) waivers, will be contained in the draft decision
document appropriate to the specific response phase underway, and thus
will be provided for review and concurrence. Procedures for ARs
described in Sec. 178.7(e)(4) are not inconsistent with time-critical
removals taken under CERCLA, and the Department of Defense intends to
apply the same administrative procedures as those that are applicable
to CERCLA time-critical removals. However, the Department of Defense
does not intend to ask for concurrence on these AR decision documents,
but does intend to make them available for comment.
Section 178.14 provides for document review times of 45 days. This
will allow the response process to progress more rapidly. Additionally,
Sec. 178.14 of this rule encourages the use of site-specific or area-
wide agreements between the Department of Defense and Federal or State
environmental agencies, the Department of Defense and American Indian
tribes, or the Department of Defense and Federal land managers. These
agreements may modify, upon mutual agreement of the parties, the review
times and dispute resolution procedures, as well as cover other
pertinent issues. If nonconcurrence is received, then dispute
resolution will be invoked. If no written response is received by the
responsible DoD component within the established review period
(including extension, if applicable), then the responsible DoD
component may proceed with a range response action or invoke the
dispute resolution process, or both.
The Department of Defense requests comment on the general
mechanisms described for involving the public and government agencies
and seeks specific comments on establishing EPTs. The Department of
Defense requests that commentors provide specific recommendations on
mechanisms to identify public and government agencies that might be
interested in
[[Page 50810]]
participating in EPTs, especially groups that represent the public.
b. Development of a risk assessment model for use at ranges: The
Department of Defense recognizes that there is an urgent need to
develop a risk assessment model for military ranges in order to carry
out the requirements of these regulations. Although there are already
several risk assessment models for ranges under various stages of
development, none comprehensively address the risks posed by both
military munitions and other constituents. In implementing these
provisions, the Department of Defense intends to develop a model or
protocol that: (1) Addresses the risks posed by military munitions and
UXO and (2) incorporates to the maximum extent possible the models EPA
has developed for assessing the acute and chronic risks posed by
releases at CERCLA and RCRA sites. The Department of Defense does
recognize that completing this model/protocol by the promulgation date
of this rule is a very ambitious objective. Should the Department of
Defense not be able to finalize the risk model/protocol, an interim
model/protocol will be put into place before the promulgation date of
this rule. The Department of Defense will develop the model/protocol in
consultation with EPA and also will seek input from Federal land
managers, States, American Indian tribes, and the public in the
development of the model/protocol. The Department of Defense will seek
public input by publishing a notice of availability of the interim and/
or draft final version of the risk model/protocol. The notice will
provide for public comment on this guidance document. Further, the
Department of Defense plans to develop a streamlined version of this
model/protocol to use as a screening tool, as EPA did with its
streamlined version of the Hazard Ranking System (HRS) for screening
sites during the CERCLA response process. This streamlined version will
rely more on qualitative information than quantitative information. The
primary use of this streamlined model/protocol will be to focus the RA/
AR process and to assess the need for implementing ARs. The decision to
utilize the more detailed risk assessment model/protocol (versus solely
the streamlined version) will be made by the Department of Defense in
consultation with regulators and the RAB or EPT.
In the explosives safety element of the model/protocol, the
Department of Defense plans to consider the following types of factors:
(1) The specific type(s) of military munitions employed on the
range.
(2) The quantity of each type of munition employed.
(3) The fuze types used on these military munitions.
(4) The density (i.e., spatial distribution) of UXO on the range.
(5) The estimated depth of the military munitions (based on
penetration data).
(6) Public access to the range (i.e., likelihood of exposure of the
public).
(7) The terrain, vegetation, soil type, and climate.
(8) Current and anticipated land use.
In the other constituents element of the model/protocol, the
Department of Defense plans to incorporate many of the factors
considered in the HRS and EPA's ``Risk Assessment Guidance in Superfund
(RAGS).'' In general, these models assess the risk posed by the site
based on:
(1) The identity and concentration of the constituents known or
believed present at the site.
(2) The environmental setting of the site (e.g., surface and
groundwater features, soils and geology, terrain, climate, vegetation).
(3) The human and environmental receptors potentially exposed at or
near the site.
(4) The exposure pathways of concern (e.g., direct contact,
inhalation, ingestion).
(5) The known or suspected acute and chronic hazards posed by
exposure.
(6) Current and anticipated land use.
The Department of Defense requests recommendations on additional
factors to consider in both the explosives safety and constituent
elements of the model/protocol. Further, the Department of Defense
solicits recommendations on whether it should integrate these
explosives safety and environmental protection elements into a single,
unified model.
c. Technical impracticability: At a limited number of sites, the
Department of Defense foresees that explosives safety concerns and
limitations of existing UXO detection and destruction technologies may
lead to consideration of site-specific remedies that are limited to
institutional controls and monitoring. Institutional controls, such as
fences or barriers to control public access, would be implemented to
restrict access to unsafe areas and thereby limit the explosives safety
risks and constituent threats to human health. Monitoring would be
implemented to ensure that constituent releases do not migrate to where
they pose unacceptable risks to human health and the environment. At
other sites, safety and technical considerations may allow a limited,
active response in conjunction with institutional controls and
monitoring.
A TI determination may occur during the site evaluation and
response action process. An example where active response actions may
not be technically practicable is a water range that may be too deep to
allow investigation or implementation of an accelerated or site-
specific response using current technologies. Other conditions may
exist at range sites where it is readily apparent that on-range
response actions are technically impracticable due to explosives safety
concerns or lack of adequate technology to address the site conditions.
Where it is readily apparent, as in the deep water range scenario, that
it is technically impracticable to implement active response actions,
the Department of Defense may make a TI determination and approve only
institutional controls without initial attempts to actively remove UXO
from the range. Conversely, there may be range sites where the
Department of Defense will extensively investigate and evaluate site
conditions and feasible alternatives, implement active response
actions, and subsequently discover that the site conditions render a
particular type of response action technically impracticable due to
explosives safety or technological limitation concerns.
As discussed later in this proposed rulemaking, the Department of
Defense proposes to use a range response process that is similar to the
NCP process developed by EPA for sites addressed under CERCLA. In
arriving at a TI determination, the Department of Defense proposes to
develop a TI recommendation that would be included in the appropriate
report for the applicable phase or stage of the range response process.
The TI recommendation will address the specific information and
analyses necessary to support a TI decision and recommendations for
actions that may be needed to prevent deterioration of the
environmental conditions at the site. These actions may typically
include measures to prevent further environmental degradation,
implementation of management and institutional controls, and
continuation of adequate monitoring to ensure that constituent releases
do not migrate from the range and that the constituents left in place
do not pose a risk equal to or greater than the explosives safety risk.
Reports supporting TI recommendations are subject to review and comment
(see Sec. 178.14(c) of this proposal). Decision documents recommending
TI determinations are subject to
[[Page 50811]]
concurrence (see Secs. 178.14 (d) and (e) of this proposal).
The Department of Defense will seek regulator and American Indian
tribe concurrence and will consider public comments received on the TI
recommendation in deciding whether to approve a TI determination. The
Department of Defense will issue a formal decision document if the TI
recommendation is approved at the DoD level. A notice of availability
for any report containing a TI recommendation will be published. The
decision document for such a report, recommending a TI determination,
will explain the basis for the decision, a synopsis of comments
received and the Department of Defense's responses to relevant
comments, any conditions required as part of the TI determination, and
the frequency of subsequent periodic reviews (``recurring reviews'') to
reevaluate the TI determination. (Recurring reviews are discussed in
more detail later in this proposed rule.) The recurring review would
determine if: (1) The control measures in place are functioning
adequately, and (2) advances in UXO detection or destruction
technologies can acceptably reduce the explosives safety risk posed to
personnel entering the site. If the recurring review process indicates
that the reasons for having issued the TI determination can be
overcome, the Department of Defense will reevaluate the need to pursue
additional response actions for the range sites. If practicable from a
safety and technological viewpoint, the Department of Defense will
implement the new response action based on advances in technology.
The concept of TI determinations to forgo certain response actions
due to safety or technological limitations is not novel. For example,
although used in a different context and on a more limited scale, EPA
has previously issued guidance on evaluating the technical
impracticability of groundwater restoration at certain sites having
hydrogeologic constraints or contaminant-related factors that severely
impede the success of active restoration. (For an example, see Guidance
for Evaluating the Technical Impracticability of Ground-Water
Restoration, Interim Final, OSWER Directive 9234.2-25 9
(September 1993)). Under appropriate conditions, EPA's guidance allows
a waiver of Federal or State cleanup standards that otherwise would be
normally required for groundwater restoration efforts under CERCLA.
EPA's guidance also allows selection of alternative remedial
technologies commensurate with the waiver of the cleanup standards. Due
to the extreme safety risks associated with range sites containing UXO
and the limited detection technology currently available for
effectively locating UXO, the Department of Defense proposes to use
EPA's TI waiver concept to implement appropriate and protective
institutional controls and to periodically review the practicability of
implementing additional response actions.
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\9\ Copies of EPA's ``Guidance for Evaluating the Technical
Impracticability of Ground-Water Restoration, Interim Final, OSWER
Directive 9234.2-25'' (September 1993) can be obtained, at cost,
from the National Technical Information Service, 5285 Port Royal
Road, Springfield, VA 22161 (telephone 703-487-4650).
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E. Detailed Discussion of the Phases of the Range Response Process
1. Identification of Closed, Transferred, and Transferring Military
Ranges
The first phase of the range response process is the identification
of closed, transferred, and transferring ranges. In this phase, a list
of the ranges subject to these requirements will be developed. Proposed
Sec. 178.6, Identification of closed, transferred, and transferring
ranges, defines the specific requirements for the identification phase
of the range response process.
a. Identification and establishment of a tracking system: In
summary, upon the effective date of these regulations, the Department
of Defense will undertake a coordinated effort to identify all land and
water areas potentially subject to these provisions. This information
will form a permanent record and centralized tracking system for
closed, transferred, and transferring military ranges. Such a system
provides a valuable tool for the Department of Defense's internal use
in managing the program. Furthermore, the Department of Defense intends
that the information in this tracking system be readily accessible to
the public and other governmental agencies. As mentioned before, one
alternative the Department of Defense intends to examine is whether the
internet could serve as a means for public access to the tracking
system.
The Department of Defense believes the following information about
each range is the minimum necessary to include in this tracking system:
(1) A unique identifier for the range.
(2) The common name for the range.
(3) The status of the range (i.e., closed, transferring,
transferred).
(4) The name, address, and telephone number of a POC at the
Department of Defense or Military Service organization with
responsibility for implementing the range rule at that range.
(5) The States and counties (including independent cities and
towns) in which the range lies.
(6) A representation or description of the range showing its
location, boundaries, and areal extent.
(7) The general type(s) of military munitions used on the range
(e.g., artillery, small arms, naval gunnery).
(8) A list of parties other than the Department of Defense or a
military department with ownership interest in or governmental
administrative control of the land or its resources.
The Department of Defense requests comments on these basic
information requirements, specifically with respect to recommendations
for additional information to include in the centralized tracking
system. In addition, the Department of Defense requests recommendations
on other mechanisms for making this information accessible to the
public. The Department of Defense plans to update the tracking system,
including the priority assigned to each range, at least once per year
to indicate which military ranges have entered the RA/AR phase and
which ranges have been identified for entering the RA/AR next.
b. Notices in official land records: This proposal makes use of
current DoD recordkeeping practices. For example, permanent records are
required for each range area. These records indicate known and
suspected range areas, and identify military munitions used, their
hazard, quantity, locations, and UXO rates. Another example is that
transfer records are required to detail past ammunition and explosives
use, provide information on other constituents present, and advise the
user not to excavate or drill in range areas without a metal detection
survey. This information is required to be entered in the permanent
land records of the civil jurisdiction in which the property is
located. To the extent to which any of these records are available for
closed, transferred, or transferring ranges, they will be used in the
range identification process.
Following identification and collection of sufficient information
about the location and boundaries of a range identified under these
provisions, the Department of Defense will examine the appropriate land
records. A formal notice in the official local land record for that
range should include, at a minimum:
(1) The proper legal description of the land that was or may have
been used as a military range, including the unique
[[Page 50812]]
identifier and common name assigned to that range.
(2) A statement that the land may have been a military range.
(3) A summary description of the hazards commonly encountered at
military ranges (e.g., UXO).
(4) The DoD component to contact for additional information about
that range.
Upon analysis of additional information and the implementation of
accelerated or site-specific responses, the Department of Defense will
update this notice to reflect the current conditions at the range.
c. Supply of information to Federal mapping agencies and State and
tribal geographic information systems (GIS): The Department of Defense
also plans to provide certain information on the ranges identified
under these requirements to those Federal, State, and Native American
tribal agencies charged with the development and distribution of
official maps and charts. The Department of Defense will recommend that
these agencies include in updates to these maps and charts a means of
delineating these areas, as well as several pertinent pieces of
information. This information includes the unique identifier for each
range, the name of the DoD organization with responsibility for
implementing these provisions on that range, and a brief statement of
the potential hazards associated with entry into these areas. In
addition, the Department of Defense requests comments as to whether
this information would be useful to local governmental entities with
mapping or zoning responsibilities or to private firms that prepare and
print maps for public distribution. If the commentor believes this to
be the case, the Department of Defense requests the commentor's
recommendations on means to provide that information to those entities.
d. Prioritization for range assessment/accelerated response: While
the Department of Defense believes that, immediately following their
identification, all ranges should enter the RA/AR phase of the range
response process, current fiscal realities show a need for a system to
determine the order in which ranges enter the RA/AR phase. Of the
various approaches available, the Department of Defense believes that
one consideration for ranking these ranges for entry into the RA/AR
phase is the degree to which the Department of Defense or a Military
Service can control access to the area, since this is one simple yet
effective means of managing the potential risk posed by the range.
Access control sets forth a basis for prioritization, but other
environmental factors will be considered, such as imminent hazards, and
the likelihood of release migration within 1 year.
Based on the consideration of access controls and risk management,
the first group of ranges that would be addressed are those already
transferred from DoD control, because the Department of Defense has the
least ability to exercise control over those areas. The second group
would be the ranges planned or scheduled for transfer from DoD control;
these ranges are still subject to DoD control, but failure to transfer
the range in a timely manner can impact other activities, for example a
land transfer under BRAC Act provisions. The final group will be those
ranges that, while closed, are still under DoD control. The Department
of Defense recognizes, however, that other factors may influence the
need to conduct a response action. Therefore, in determining which
ranges will enter into the RA/AR phase, the Department of Defense will
consider factors relating to safety and environmental hazard potential,
such as:
(1) Whether a site access can be controlled and the population is
at risk.
(2) The potential for direct human contact and evidence of people
entering into the range area.
(3) Whether a response action has been or is being taken at that
range under the FUDS program or other environmental restoration
programs.
(4) Planned or mandated dates for transfer of the range from DoD
control.
(5) Documented incidents involving UXO or off-range releases of
other constituents from the range.
(6) The potential for drinking water contamination.
(7) The potential for destruction of sensitive ecosystems.
(8) The potential for damages to natural resources.
(9) The potential for releases to the air.
(10) The degree of public interest in the range.
(11) The degree of Federal land manager interest in the range.
(12) The degree of state or Federal regulator or American Indian
tribe interest in the range.
The priority assigned to each range is another element the
Department of Defense plans to include in the tracking system. The
Department of Defense plans to update the tracking system, including
the priority assigned to each range, at least once per year to indicate
which military ranges have entered the RA/AR phase and which ranges
have been identified for entering the RA/AR next. The Department of
Defense solicits comments on this approach to prioritizing military
ranges, with specific emphasis on other factors to consider when
assigning a priority ranking to a given range.
e. Public and government agency involvement: One of the basic
requirements the Department of Defense established when developing this
proposal was the commitment to involving the public and government
agencies in each phase of the range response process. The responsible
DoD component will work with the community to provide information
concerning response activities, respond to inquiries, and provide
information concerning the conditions at the range. The responsible DoD
component will notify, at a minimum, immediately affected citizens,
State and local officials, and, when appropriate, civil defense or
emergency management agencies. During the identification phase, one of
the primary goals is to ensure public access to information on each
range subject to these requirements. The Department of Defense does,
however, recognize an additional opportunity for public and government
agency involvement during this phase. The Department of Defense
proposes allowing public and government agency submission of documents
identifying the location of closed, transferred, or transferring
ranges. Upon verification of the accuracy of such submissions, the
Department of Defense would enter that range into the tracking system
of ranges subject to these provisions.
The Department of Defense solicits comments on additional
mechanisms to involve the public and government agencies in the
identification process and means to provide access to information about
ranges identified subject to these requirements.
2. Range Assessment/Accelerated Responses
One goal of the RA/AR is to determine the condition of the
property. Another goal of the RA/AR phase is finding ways to accelerate
the response process by delineating areas within the range where
response activities are necessary and by limiting the effort spent
collecting data to only the level necessary to address the
uncertainties that accompany prompt action. The Department of Defense
intends that the RA/AR phase use readily available information to
determine if additional investigation or implementation of an AR is
warranted, based on range conditions. Therefore, the RA/AR phase is
dependent on: (1) Identification of the types and sufficiency of data
needed for
[[Page 50813]]
an informed risk management decision; (2) the ability to implement ARs
when appropriate; and (3) analysis of information to know when (a)
enough information either has been or cannot be gathered to make an
informed risk management decision, and (b) when an identified risk can
or cannot be addressed by an AR. The Department of Defense will be
issuing detailed guidance on how to conduct the RA/AR phase and
believes that it will be possible to develop standardized procedures
and reporting requirements for RA/AR activities.
For clarity, the following discussion presents the RA and AR
separately. However, the Department of Defense intends for them to be
concurrent, interrelated activities.
a. Range assessment: The RA is a limited-scope investigation
designed to distinguish between ranges, and areas within ranges, posing
little or no safety, human health, or environmental risks and ranges,
or areas within ranges, that do pose such risks. Ranges that pose a
risk warrant further investigation or implementation of an AR. The
Department of Defense intends that the initial effort in an RA be a
compilation and analysis of existing information about the range and
its surroundings, similar to the CERCLA preliminary assessment or a
RCRA facility assessment. The RA emphasizes collection of available
information through a combination of file searches and ``desktop''
information collection and analysis. If, based on analysis of the
existing information about the range, collection of additional
information is believed necessary to better delineate the range or
areas within the range where response activities are warranted, then
visual inspection of the range or sampling of environmental media may
be undertaken to provide an improved understanding of the conditions at
the range. The Department of Defense will be issuing guidance on the
specific requirements and procedures for conducting an RA.
(1) Scope of the range assessment. The Department of Defense
envisions implementing the RA by conducting several levels of
information collection and assessment. The first level of the RA is to
determine if the range is subject to these requirements and if there is
readily available information suggesting that the range poses a hazard.
This usually can be done by reviewing the official records of the
installation, local records, or other references. Such documents are
often the primary source of information on range locations and
operations conducted at those ranges.
If in fact the area was or is a military range subject to these
provisions, the next phase of the RA is collection of information on
the types and quantities of military munitions employed at the range.
At a minimum the Department of Defense sees a need for the following
types of information:
(1) The type(s) of military munitions employed on the range.
(2) The estimated quantity of military munitions employed.
(3) Time frames during which the military munitions were employed
on the range.
(4) The chemical constituents of those munitions.
(5) The fuze types used on these military munitions.
(6) Identification of locations within the range where these
military munitions are known or suspected to have been employed.
(7) The estimated density of UXO in those locations.
(8) The estimated depth of the munitions (based on penetration
data).
(9) Information on range clearance operations or reported incidents
involving UXO on the range.
(10) Safety issues related to military munitions employed on the
range.
(11) The type(s) of any targets that may have been used on the
range.
(12) Other past and present uses of the range.
This information feeds into the assessment of the risks posed by
the military munitions and UXO potentially found on the range.
One of the critical early efforts during the RA is the
identification and delineation of areas within a range that pose
varying explosives safety hazards and environmental threats.
Delineation procedures will adequately define different types of range
areas. Delineation of range areas would likely include, but not
necessarily be limited to: Impact areas; buffer zones; firing areas;
maneuver areas; military munition stockpile areas; open burning/open
detonation areas; disposal areas; and any other areas of concern
(including off-range areas where constituents may have migrated from
on-range sources). Environmental threats can include, but are not
limited to, chronic, mutagenic, or teratogenic effects.
A goal of this effort will be to identify areas with a higher
explosives safety risk from those areas that are either unaffected or
minimally affected. Once delineated, a range area would proceed through
the five-phase process independently of other areas. For example, an
impact area with a high explosives safety risk that is confirmed to be
too dangerous to assess or remediate would proceed on a distinctly
different path through the five-phase process than would an adjacent
buffer zone that was confirmed to have a lower explosives safety risk
but has significant quantities of other constituents. The buffer zone
and other site areas that fit into this category would, as a group,
proceed to the RE/SSRE phase, where focused characterization and
response activities ultimately would take place.
Another goal of range delineation during the RA will be to assess
what ARs can be implemented at areas geographically outside ranges with
a high explosives safety risk, but where constituent levels from
employed munitions or other constituents are significant. It is likely
that all ranges will include areas with a lower explosives safety risk,
where characterization and possible response efforts may be feasible in
order to provide for incremental risk reduction. This will serve to
specifically address releases from other constituents.
If the Department of Defense, in consultation with the RAB and/or
EPT, determines that any of the following conditions exist, the
affected portion(s) of the range should proceed without delay to the RE
phase. These conditions are (1) that the range presents issues that are
too complex to be addressed in the RA; (2) that all or part of the
range poses an imminent threat to human health or the environment which
cannot be mitigated effectively through an AR; or (3) that an AR had
been implemented but substantial environmental threats remain.
To address the risks posed by other constituents, including CERCLA
hazardous substances, known or suspected to be present on the range,
the Department of Defense will use existing information on the
constituents identified during the assessment of the military munitions
employed on the range and any other potential constituents identified
from other activities on the range. The goal of this aspect of the RA
is to develop an initial ``target'' list of constituents and to suggest
locations for sampling for use in later phases in which environmental
samples may be collected and analyzed; to identify the corresponding
ARARs; and to address the ability of that RA to meet the ARAR
requirements and protect human health and the environment. This
assessment also will collect readily available existing information on
the identity, concentration, and characteristics (e.g., toxicological,
fate and transport) of the identified constituents. This information
feeds into the initial
[[Page 50814]]
assessment of the risk posed by other constituents at the range.
The RA also will require collection of existing data on the
environmental setting of the range, the location and identity of
receptors potentially impacted by the range, and specific routes of
exposure of concern. Specifically, the RA involves collection of
existing information on such factors as:
(1) Local hydrologic and hydrogeologic conditions (which includes
groundwater).
(2) Soils and geology.
(3) Terrain.
(4) Climate and meteorological data.
(5) Vegetation.
(6) Current and predicted land use.
(7) Cultural resources.
(8) Receptors (i.e., humans, ecological receptors).
(9) Exposure pathways of concern (e.g., direct contact, inhalation,
ingestion, or exposure to radionuclides).
The Department of Defense believes that a significant portion of
the information needed to address these factors is available from
existing sources such as topographic maps, aerial photographs, on-line
databases, and published studies.
The preliminary phases of the RA, which depend primarily on
existing information, can suggest that a visual inspection of the range
or limited-scale sampling of environmental media is necessary to
develop a more complete understanding of the conditions at the range or
to better delineate areas requiring response activities. In either
case, entry onto the range requires the development of an explosives
safety plan and submittal of the plan to DDESB for coordination. If the
information suggests a need for sampling of environmental media, the
DoD organization conducting the response should develop a work plan
describing the objectives and plan for conducting the sampling,
including the standard operating procedures (SOPs) to be used for the
range response. Typically, the plan for sampling and analysis of
environmental media will use a format similar to the one used when
conducting these activities under a CERCLA response or RCRA corrective
action.
Once collected, the information on the military munitions employed
at the range, the other constituents believed present, and the
environmental setting of the range serves the following purposes:
(1) Identification of any actual or potential threats posed by the
site (e.g., reported incidents involving UXO, documented releases of
other constituents from the range).
(2) Initial assessment of the identified risks posed by the
military munitions and other constituents on the range, with a
qualitative identification of the source-pathway-receptor chain and UXO
density potential.
(3) Focus of follow-on studies or monitoring.
(4) Assessment of the need to implement ARs.
(2) Accelerated responses. An AR is any readily available, proven
method of addressing the identified risks posed by military munitions
or other constituents at ranges subject to these requirements. Some
examples of ARs include:
(1) Posting signs warning of the danger associated with range.
(2) Erecting fences or other measures to control access.
(3) Implementing simple erosion controls (e.g., silt fences).
(4) Suspending incompatible land uses (where the Department of
Defense can do so).
(5) Implementing community education and awareness programs.
(6) Requiring ``dig permits'' at areas where the Department of
Defense has control over site activities.
(7) Conducting source removals or surface sweeps for UXO.
(8) Implementing deed restrictions.
(9) Implementing a monitoring program (for example, to assess if
constituents are migrating off the range in stormwater runoff or
percolating into groundwater).
(10) Providing alternative sources of drinking water.
(11) Performing other effective engineering, institutional, or
exposure controls.
This is by no means a complete listing of the types of ARs
available to address the identified risks posed by ranges. The
Department of Defense plans to develop detailed guidance on ARs in the
near term which will be not inconsistent with CERCLA.
The Department of Defense sees merit in using the same criteria for
evaluating AR alternatives and for evaluating more complex and tailored
site-specific responses. A later section of this proposal provides a
detailed discussion of these criteria. The primary differences are in
the scope of the evaluation of alternatives, and that the AR analyses
rely on qualitative rather than quantitative information. In these
ways, the AR process is similar to the process identified in the NCP
for non-time-critical removal actions (at least 6 months' planning
time) and time-critical removal actions (less than 6 months' planning
time). For example, the process for selecting an AR is similar to the
engineering evaluation/cost analysis performed as part of non-time-
critical removal actions identified in the NCP.
In general, using the data collected during the RA, this process
will be a qualitative evaluation of the source-pathway-receptor link
that creates the risk. These data will be analyzed to determine which
AR options would most effectively sever that link or reduce its
impacts.
(3) Public and government agency involvement. Before beginning the
RA/AR phase, the DoD organization responsible for that range will send
a written notice to the appropriate Federal, State, and local officials
and American Indian tribes informing them that these activities will be
starting. This notice will also request that these officials name a POC
within their organization and identify that POC to the project team.
Throughout the RA/AR phase, the public, government agencies, and
American Indian tribes will have access to validated information about
range conditions, the potential hazards posed by the site, and any ARs
undertaken to address those hazards. In addition, the public will have
access to RA/AR reports and decision documents. Usually, access to this
information is through the information repository; however, unresolved
questions or concerns can be taken to the DoD POC or to the EPT, if one
exists. Other venues for information exchange are the RAB (if one
exists), and/or informal meetings with community leaders or other
government officials.
For all ARs where implementation of an on-site action is expected
to take more than 120 days to complete, within that period the
responsible DoD component will conduct interviews with local officials,
community residents, public interest groups, or other interested or
affected parties, as appropriate, to solicit their concerns,
information needs, and how or when citizens would like to be involved
in the range response process. The Department of Defense also will
prepare a formal PIP based on community interviews or other relevant
information, specifying the public involvement activities that are
needed during the response.
Before undertaking an AR, the DoD organization responsible for the
activities at that range will formally document its decision. This
document will briefly summarize conditions at the range, explain the
hazards the AR was to address, and provide other useful and relevant
information.
Except where an emergency response is required to address an
imminent
[[Page 50815]]
threat to human health or the environment, the public, regulators,
American Indian tribes, and (where appropriate) Federal land managers
will be provided a reasonable opportunity to comment on proposed RA/AR
actions, based on information included in the RA/AR report. This report
will be subject to a 45-day review and comment period prior to
implementation of the AR. If requested, the Department of Defense also
will hold a public availability session. If the physical construction
associated with an AR, including implementation of site access control
measures, is reasonably expected to be completed within 120 days of the
commencement of the AR (i.e., completion of the RA), the opportunity
for review and comment may be provided during or when the AR has been
implemented. While an AR might be fully protective, the majority of ARs
will be interim responses by nature, particularly those for which the
physical construction is reasonably expected to be completed within 120
days of commencement. In cases where an AR is expected to be fully
protective and to make a site-specific response unnecessary, public
participation through review and comment on the RA prior to
implementation of the AR should be afforded, even when the AR can be
implemented within 120 days.
3. Evaluation of Range Assessment/Accelerated Response Results
As discussed in Section IV.E.2 of this preamble; one goal of the
RA/AR process is to couple existing information with a limited
gathering of additional information to make informed risk management
decisions at the range. If the range poses a hazard, ARs, as
appropriate, can be taken to address that hazard. This process
continues until enough information is available to make an informed
risk management decision (or, alternatively, the effort necessary to
collect that information is beyond the scope of the RA); and all
identified hazards have been addressed through implementation of an AR
(or a determination has been made that ARs are unable to address the
identified hazards).
Once at this point, the DoD organization conducting activities at
the site may implement a time-critical AR or will make the RA/AR report
available for comment and will then issue a decision document for the
proposed action. The RA/AR report will document the findings of all
assessment activities and the reasons for and effectiveness of each AR
at the range. The RA/AR report will also make one of the following
recommendations:
(1) Issue a determination of no further action (typically where the
area was not a range or there is no appreciable risk associated with
the range).
(2) Conduct recurring reviews because all identified risks have
been effectively managed and are expected to remain effectively managed
in the long-term.
(3) Conduct an RE because of a need for additional information to
make an informed risk management decision or in anticipation of a site-
specific response to address the remaining hazards.
(4) Issue a TI determination because, while a risk remains, there
are no alternatives available capable of addressing the identified
risk. For example, a TI determination would be appropriate at a naval
gunnery range located in deep water (i.e., over 300 feet deep), where
existing technology is not available to effectively implement a
response. Another example would be an artillery range with a large
number of UXO located in a small area of rugged terrain where manual
clearance is required. Due to the density of the UXO, entry into the
area may be too hazardous to undertake; clearance of one UXO by
detonation may lead to sympathetic detonation of nearby rounds, due to
the proximity of the UXO item to other UXO items. This situation would
present an unacceptable explosives safety risk, in that the
sympathetically detonated round may undergo a low-order detonation,
scattering unconsumed explosives over a wide area, worsening the
problem. In a case such as this, not directly addressing the UXO while
implementing other types of control measures may be the most
appropriate response action. Typically, recommendations for other
appropriate control measures and recurring reviews will be a part of a
recommendation for the TI determination.
Once the draft RA/AR report is complete, the Department of Defense
will include it in the administrative record and make it publicly
accessible at the information repository. The Department of Defense
also will publish a notice of availability of the draft RA/AR report
and brief description of the action being proposed in the report in a
major local newspaper of general circulation and announce a 45-day
period for submission of written comments to the DoD POC for that
range. If requested, the Department of Defense will hold a public
meeting or availability session. Following the comment period, the
Department of Defense will develop written responses to significant
comments received during the comment period, consider any issues
brought out by these comments, and prepare a formal decision document
outlining which recommendation will be adopted. A copy of the decision
document and all supporting information will become a part of the
administrative record for the military range, and the Department of
Defense will mail a copy of the decision document to all appropriate
government agencies and the current property owner.
4. Range Evaluation
REs are detailed investigations of the military munitions employed
on the military range, the other constituents believed or known to be
present, and the environmental setting. Generally, an RE will be
performed when making an informed risk management decision requires the
collection and analysis of a significant quantity of quantitative
information not otherwise available. This information collection often
is a complex, long-term effort (e.g., groundwater monitoring) that
demands careful planning before its execution. This phase includes
evaluation of site safety, and potential human health and ecological
impacts. RE examples include, but are not limited to:
(1) Military ranges where chemical munitions were employed and
where the RA/AR process shows a potential exposure from a chemical
agent release.
(2) Military ranges where land use or the degree of public access
is incompatible with the condition of the range following the RA/AR
process.
(3) Military ranges with a reasonable potential for contamination
of surface water or groundwater that is in excess of applicable
standards and which is a potential source of drinking water.
a. Scope of a range evaluation: The types of information collected
during the RE are similar to those collected during the RA/AR phase and
serve the same purposes; however, the information collected is far more
specific and typically quantitative in nature. For example, while the
RA/AR phase sought information on the type(s) of military munitions
employed on the range, an RE might seek to determine the specific
military munitions employed. Similarly, where the RA/AR used estimates
of various values such as the quantity of military munitions employed
on the range and the density (i.e., distribution) of UXO, the RE uses a
combination of detailed ``desktop'' evaluations and field sampling to
refine the estimates.
The first step in conducting the RE is reviewing the available
information to focus the RE. The Department of Defense intends all REs
to be focused studies, tailored to answering specific
[[Page 50816]]
questions. Conducting such a focused study requires defining:
(1) The objective of the information collection effort (i.e., what
question is to be answered).
(2) The boundaries of the information collection effort.
(3) The role of the data in supporting risk management decisions.
(4) The specific type, quantity, and quality of information to
collect to meet the objective.
(5) The acceptable level of uncertainty (in terms of the accuracy)
of the information.
For example, to assess the risk posed by the other constituents
known or suspected to be present on the range, the Department of
Defense will use existing information on the other constituents
identified during the RA, as well as any other readily available
sources. This review will provide the basis for developing a ``target''
list of potential constituents. This approach also will focus the
collected information on the health and environmental characteristics
of the constituents that may be present on the range. Similarly, it is
possible to focus collection of information on the environmental
setting. If, for example, the range is in an area where, due to an
extremely high concentration of total dissolved solids, the groundwater
is not useful for drinking or agriculture, it may be appropriate to
limit assessment of potential groundwater impacts.
b. The range evaluation plan: The Department of Defense intends
this focusing effort to lead to the development of a single, concise
document, the RE plan. The RE plan will provide all necessary
information about the objectives established for the RE, the rationale
for those objectives, and how those objectives will be achieved. For
example, this document would explain the focus of the RE, define the
objective(s), boundaries, data uses, sampling and analysis protocols,
safety, and data analysis procedures required to complete the RE. The
Department of Defense will issue detailed guidance on how to conduct an
RE, and believes that it will be possible to develop a standard RE plan
that, with minor modifications, can be adopted for use at the majority
of these ranges. The DoD organizations conducting the RE will make this
document a part of the administrative record and will publish a notice
of availability in a local newspaper. The notice will summarize the
purpose of the document and inform the public how to gain access to the
RE plan. At a minimum, the RE plan will be made available at the
information repository.
c. The range risk assessment: The collection and analysis of
additional information about conditions at the range lead to the
primary purpose of the RE, a detailed, quantitative assessment of the
risks posed by the military munitions and other constituents at the
range. The level of risk posed by the site is one element in making an
informed risk management decision about the need for a site-specific
response.
In general terms, the military range risk assessment model/protocol
the Department of Defense plans to develop requires similar types of
information for military munitions and other constituents. These
information requirements include:
(1) Identification of the source of the risk (e.g., identification
of the specific military munitions or other constituents).
(2) Identification of receptors, pathways, and potential for
exposure.
(3) Identification of the effects of exposure (e.g., the types of
injuries that accidental explosion of military munitions can cause; the
acute, chronic, and carcinogenic effects of exposure to other
constituents).
While the explosives safety and other constituent risk assessments
generally require similar types of information, the specific
information requirements are different and reflect the basic
differences between explosives safety risks and constituent releases.
For example, injury from the detonation of conventional military
munitions requires either direct or indirect exposure to the energy (as
pressure or heat) released by the explosion, or to energy imparted to
materials by the explosion (e.g., shrapnel); generally, the injury is
due to physical trauma. In contrast, exposure to other constituents
usually involves entry into the receptor by ingestion, inhalation, or
dermal absorption, and the effects are due primarily to disruption of
physical functions in the receptor. Therefore, the specific information
required to assess the effects of exposure will be different.
Currently, the risk assessment models used for military munitions
and UXO do not adequately address the potential risks associated with
constituent exposure. Likewise, the risk assessment models for
constituent exposure do not address the effects of explosions or other
injuries caused by military munitions. For these reasons, the
Department of Defense will be developing, in consultation with and with
the assistance of EPA, a risk assessment model or protocol to use at
military ranges. This risk assessment model or protocol will provide an
assessment of risks posed by military munitions and UXO at the range,
as well as the human health and environmental risks posed by the
constituents to: (1) Provide an estimate of the risks posed by military
range conditions; and (2) to serve as a tool for assessing (a) the
effectiveness of a given response at addressing those risks and (b) the
potential consequences (either positive or negative) of implementing a
response targeted at addressing a specific risk. The Department of
Defense, in conjunction with EPA, will seek Federal land manager,
State, American Indian tribe, and public input during the development
of the risk assessment model or protocol. Because of the importance of
this model/protocol, an interim version is to be developed and made
publicly available prior to the promulgation of the final rule. A final
version will be developed and made publicly available no later than 1
year after the final rule is promulgated.
It is equally important to note that, since the explosives safety
element of the overall range RA examines the identified risks posed by
military munitions and UXO on the range, an evaluation of these risks
must be conducted concurrently with the development of the RE plan,
especially if on-range data collection is contemplated. Even if very
limited information on potential explosives safety hazards exists, any
such information is critical to assessing the practicality of on-range
actions and to developing the explosives safety plan (which must be
submitted to DDESB for approval before commencing any on-range
activity). Like the explosives safety risk assessment, the constituent
risk assessment examines the risks posed by constituents known or
suspected of being present on the range. The preliminary phases of this
assessment also will need to be conducted concurrently with the
development of the RE plan, since the information requirements for the
constituent risk assessment are critical to focusing investigative
efforts. Furthermore, available data on the constituents known to be or
suspected of being on the range are critical to developing a health and
safety plan for on-site workers.
d. Public and government agency involvement: During the RE, the
public, government agencies, and American Indian tribes have access to
validated information about range conditions and the potential hazards
posed by the site. In addition, the public will have access to the
final RE report and any related decision documents. As with the RA/AR,
access to this information is through the information repository, the
[[Page 50817]]
DoD POC, the EPT (if one exists), the RAB (if one exists), and formal
or informal meetings. Furthermore, before beginning the RE, the DoD
component responsible for that range will send a written notice to
appropriate Federal, State, and local officials informing them that
these activities will be starting.
If a formal RE report is prepared, then a 45-day public comment
period on the report will occur, as well as a public availability
session if requested. If the recommendation is to proceed directly to
the SSRE, however, a letter report will summarize the RE findings and
the public comment period will occur on the SSRE report. Following the
public comment period, the Department of Defense will develop written
responses to significant comments received during the comment period
and consider any issues brought out by these comments. A copy of the
draft decision document will be provided to the appropriate Federal or
State agency, American Indian tribe, and Federal land manager for
concurrence.
5. Range Evaluation Findings
The goal of an RE is to couple existing information with focused
information collection to assess the risk posed by the military
munitions and other constituents on the military range. This
information is necessary to make informed risk management decisions.
Once the objectives set for the RE are reached, the findings and
conclusions will be presented in a formal RE report. Depending on the
scope and findings of the RE, the RE report also will make one of the
following recommendations:
(1) Conduct recurring reviews because the quantitative analyses
demonstrated that all identified risks are effectively managed and will
remain effectively managed over the long term.
(2) Issue a TI determination because, while a risk remains, there
are no available alternatives capable of addressing the risk.
Typically, recommendations for other appropriate control measures and
recurring reviews will be a part of a recommendation for a TI
determination.
If the findings of the RE demonstrate a need for a site-specific
response to address remaining risks, the Department of Defense may
prepare a letter report instead of an RE report and proceed directly to
the SSRE. If a letter report is prepared, then the DoD organization
conducting the response must prepare a formal decision document that
summarizes the findings of the RE, identifies the hazards requiring a
site-specific response, and describes the anticipated scope and
starting of the SSRE. This decision document will be made available to
the public, and concurrence will be sought from appropriate Federal,
State, and American Indian tribal officials.
If, however, the responsible DoD component recommends either
proceeding to the recurring review process or issuing a TI
determination, the responsible DoD component will prepare a formal RE
report, publish a notice of availability and a brief description of the
RE report in a major local newspaper of general circulation, and
announce a 45-day period for submission of written comments to the DoD
POC for that military range. If requested, the Department of Defense
also will hold a public meeting or availability session. Following the
comment period, the Department of Defense will develop written
responses to significant comments received during the comment period,
consider any issues brought out by these comments, and prepare a formal
decision document on which recommendation will be adopted. A copy of
the decision document and all supporting information will become part
of the administrative record for the range, and a copy of the decision
document will be mailed to appropriate government agencies and the
current property owner.
6. Site-Specific Response Evaluation
An SSRE examines various response alternatives that address risks
posed by the range which have not been or cannot be effectively
addressed by ARs. The SSRE process is similar to the feasibility study
under CERCLA; however, there is one very important distinction:
explosives safety is a frequent overriding concern. If a given response
alternative cannot minimize explosives safety risks, then it will be
dropped from consideration. EPA stated in the preamble to the final NCP
that short-term effectiveness:
* * * will consider who may be exposed during the remedial action,
what risks those populations may face, how those risks can be
mitigated, and what risks cannot be readily controlled. Workers are
included in the population that may be affected by short-term
exposures. (55 FR 8722, March 8, 1990)
Furthermore, the NCP explains that the threshold assessment of
overall protection ``draws on the assessments of other evaluation
criteria,'' which specifically includes the short-term effectiveness
(40 CFR 300.430(d)(iii)(A)). Hence, in the remedy selection process,
worker safety is not only considered when determining the short-term
effectiveness of a remedy, but is also an integral part of the analysis
in determining whether a remedial alternative meets the threshold
requirement of overall protectiveness. As EPA stated in response to
comments on the proposed NCP:
EPA agrees that unacceptable short-term impacts can cause an
alternative to be considered non-protective of human health and the
environment and can remove that alternative from consideration as a
viable option. (55 FR 8725, March 8, 1990)
EPA adopted a similar approach, in which one factor carries more
weight than others, in developing the evaluation process under the NCP
(40 CFR 300). Under the NCP, EPA considers overall protection of human
health and the environment and compliance with ARARs as ``threshold
criteria'' that each alternative must meet to be eligible for further
consideration.
The Department of Defense intends to identify and address ARARs
exactly as prescribed under CERCLA and in the NCP. In the event that
the Department of Defense wishes to waive an ARAR, it will justify the
waiver under the criteria and processes stipulated under CERCLA and in
the NCP. The Department of Defense will provide a written description
of the ARAR to be waived; the waiver type to be invoked; and the
justification for invoking the waiver. The Department of Defense will
provide regulators with the opportunity to review and concur on ARAR
waivers, as appropriate. The provisions of CERCLA Section 121(f)(2)(B),
concerning a State's ability to challenge ARAR waivers, remains
unaffected by this range rule.
a. The Department of Defense screening process: The NCP allows use
of a screening process to reduce the number of alternatives to be
considered in detail if a wide array of alternatives initially is
developed. The screening process involves three evaluative criteria:
(1) Long- and short-term effectiveness; (2) long- and short-term
implementability; and (3) long- and short-term cost-effectiveness.
Effectiveness of alternatives refers to their overall performance in
eliminating, reducing, or controlling current and potential health
risks, both during planning and implementation. Short-term
effectiveness includes consideration of risks to workers who are
involved in conducting the response. EPA guidance allows, at the
screening process, elimination of alternatives that are clearly
unacceptable in terms of short- and long-term human health risks. EPA
guidance further provides that this evaluation is based primarily on
many simplifying assumptions and on professional judgment at the
screening
[[Page 50818]]
stage and is intended to identify alternatives with clearly
unacceptable short-term risks. At DoD range sites covered by the
proposed rule, the Department of Defense anticipates that the explosive
risks posed by military munitions to response personnel will warrant
screening out response alternatives that might otherwise be considered
at typical CERCLA sites. If a given response alternative cannot provide
adequate explosives safety, this will result in its elimination from
consideration. If however, none of the on-range response alternatives
identified provide for adequate explosives safety for workers involved
in the response, the Department of Defense must consider other
alternatives that will prevent the situation from worsening, or that
will prevent or control releases of UXO or other constituents from the
range, or prevent community exposure.
b. Scope of the site-specific response evaluation:As with REs, the
Department of Defense intends that the SSRE be a highly focused
investigation of response alternatives to address a specific risk.
Where similar risks were successfully addressed at other ranges, the
SSRE should focus on only those alternatives, rather than on conducting
research and development of alternative technologies. 10 In
recent years, EPA has adopted a similar philosophy and now advocates
examination of ``presumptive remedies.'' Presumptive remedies are
preferred technologies for common categories of sites, based on
historical patterns of remedy selection, and scientific and engineering
evaluation of performance. Focusing on developing standardized
approaches for addressing the identified risks posed by a military
range would allow streamlining of the process, provide consistent
resolutions when dealing with recurring problems, and usually result in
significant savings.
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\10\ In August 1996, the Department of Defense established a
UXO Technology Executive Committee that will centralize the efforts
on research, development, and management of technology for UXO
detection, neutralization, and remediation.
---------------------------------------------------------------------------
c. The site-specific response evaluation plan: The Department of
Defense intends this focusing effort to lead to the development of an
SSRE plan. The SSRE plan will be a single, concise document that
provides all necessary information about the objectives established for
the SSRE, the rationale for those objectives, and how those objectives
will be achieved. As necessary, the document will detail sampling and
analysis protocols, safety requirements, data analysis procedures, or
treatability studies required to complete the SSRE. The SSRE plan will
be part of the administrative record, and the Department of Defense
will publish a notice of its availability in a local newspaper. The
notice will summarize the purpose of the document and inform the public
how to gain access to it. The Department of Defense will be issuing
detailed guidance on how to conduct an SSRE and how to effectively
convey the information in the SSRE plan to the general public.
(1) Conducting the site-specific response evaluation. Once the SSRE
plan is complete, the first step in conducting an SSRE is to identify a
preliminary list of objectives for the response. These preliminary
objectives will depend on the various site-specific factors such as the
type of problems to be addressed, environmental setting, and subsequent
land use. The second step is to identify general classes of response
actions that meet or exceed the preliminary objectives identified for
the response. The third step is to determine or estimate the scope of
the response using an appropriate unit of measure. This can be, for
example, the quantity of military munitions or media present or the
size of the range. This determination allows elimination from further
consideration of remedial alternatives that are incapable of treating
the necessary quantity of military munitions or contaminated material
in a reasonable time frame. The fourth step is to identify and screen
specific technologies and, within a class of technologies, options for
the actual treatment process. The fifth step is detailed evaluation of
the effectiveness of the remaining options. The sixth and final step is
to identify the alternatives or combinations of alternatives for a more
detailed evaluation.
Any alternative that remains under consideration after the final
step may require individual treatability studies, if such studies are
needed, to provide sufficient data to: fully assess the alternative's
suitability; support its design and implementation (if selected); or
refine cost estimates and reduce performance uncertainties.
Treatability studies are not required for all alternatives; if enough
information exists to allow an accurate evaluation of each remedial
alternative without conducting treatability studies, the Department of
Defense will weigh the cost and time of conducting such a study against
the potential benefits.
The detailed analysis of range response alternatives consists of
examining each alternative against the following nine criteria, which
are used by EPA in evaluating CERCLA remedial alternatives. A
comparative analysis of the proposed alternative to each of the other
alternatives is then performed. In developing these criteria, the
Department of Defense adopted the basic concepts embodied in the nine
evaluation criteria used to assess remedial alternatives under the NCP.
(1) Overall protection of human health and the environment
(including explosives safety and natural resources).
(2) Compliance with ARARs established under Federal and State law.
(3) Long-term effectiveness and permanence.
(4) Reduction in toxicity, mobility, quantity, or volume.
(5) Short-term effectiveness.
(6) Implementability.
(7) Cost.
(8) Acceptability to appropriate Federal and State officials.
(9) Community (including property owner) acceptance.
Explosives safety and protection of human health, including risks
posed to response personnel, are of paramount concern. Under EPA
guidance, the detailed evaluation of responses resulting from each
alternative must consider short-term risks. EPA considers the short-
term risk to response personnel in evaluating whether a proposed
remedial alternative meets the threshold criterion of overall
protection of human health and the environment. The Department of
Defense expects that explosives safety and risk to response personnel
will be recurring issues and overriding considerations in the detailed
evaluation of alternatives for range responses.
The first criterion addresses the ability of each alternative to
protect human health and the environment from the acute, chronic, and
carcinogenic effects of exposure to the constituents present at the
range. This criterion draws on the constituent risk assessment and the
evaluations of other criteria, especially the long- and short-term
effectiveness evaluations. The Department of Defense believes that, in
evaluating this criterion at military ranges subject to this proposed
rule, a balance will need to be struck between protection of human
health (including explosives safety) and protection of the environment.
For example, while it may be feasible to excavate UXO to a depth of
several feet over a large area, doing so will have a negative impact on
the local environment. If that area also were critical habitat to a
threatened or endangered species, then the benefits of UXO removal
would have to be balanced against the disruption of that species'
habitat. Furthermore, if a response alternative cannot minimize
explosives safety risks, it will be
[[Page 50819]]
dropped from consideration. In assessing this criterion, an explosives
safety plan addressing all alternatives will be submitted to the DDESB
for evaluation.
Compliance with Federal and State ARARs is identical to the
evaluation criteria required under CERCLA and the NCP. This criterion
requires evaluation of the ability of each alternative to comply with
chemical-specific, action-specific, and location-specific requirements
that are either directly applicable to the response action or, in best
professional engineering judgment, similar enough to the conditions of
the site and response action to warrant their use (termed by EPA as
``relevant and appropriate requirements''). For example, the Department
of Defense's on-site response actions must comply with the substantive
requirements of RCRA. Under CERCLA, the Department of Defense plans to
adopt the process established in the NCP for waiving an applicable
requirement. If required, concurrence of that waiver must be sought
from the appropriate Federal or State agencies. For the assessment of
the effectiveness of an AR, compliance with applicable requirements is
required only to the extent practicable given the exigencies of the
situation. In this way, this requirement is directly analogous to the
requirement for ARAR compliance during a CERCLA removal action.
The long-term effectiveness evaluation assesses the residual risk
posed by military munitions or other constituents that will remain at
the range following the completion of the response action, and
considers the reliability and adequacy of those actions in providing a
long-term or permanent solution to the hazard posed at the range. The
Department of Defense also believes that this criterion should consider
any long-term liabilities associated with the response. For example, in
evaluating a response action when wastes will be shipped to an off-site
commercial facility for treatment or disposal, the Department of
Defense should consider the potential CERCLA liability incurred by that
action.
Evaluation of how the response reduces the explosives safety risks,
toxicity, mobility, quantity, or volume of the military munitions or
constituents (as appropriate) involves assessment of the effectiveness
of the alternative at treating the military munitions or other
constituents present on the range and the quantity that will remain
following the response action.
The short-term effectiveness criterion addresses the risks or
impacts of the alternative from the start of the action through to the
time when the response objectives are achieved. Under this criterion,
each alternative is evaluated to determine the degree of protection
afforded to on-site workers and the surrounding community during
implementation. Each alternative is also examined for possible adverse
environmental impacts arising from implementation of the response or
the time required to achieve the response action's objectives.
The implementability criterion assesses both the technical and
administrative feasibility of implementing each alternative. Included
in this assessment are (1) consideration of the availability of the
necessary resources to implement the alternative, (2) an assessment of
the reliability of the alternative (also a consideration under the
short- and long-term effectiveness criteria), and (3) whether the
action will impede other responses at the range. Another aspect of this
assessment is the determination of the requirements for interaction
with other Federal, State, or local agencies or American Indian tribes.
For example, this assessment may require determining the need for
obtaining a permit for a given alternative. Another factor the
Department of Defense may consider in the assessment under this
criterion is the availability of on- and off-range treatment and
disposal units for wastes generated by the response action. In the case
of chemical munitions, the statutory provisions of 50 U.S.C. 512a
regulate the transportation, destruction, and open-air testing of these
munitions; thus, the availability of the treatment or disposal capacity
at the nearest chemical military munitions stockpile facility may be
one of the most important factors limiting response alternatives. The
Department of Defense is currently developing mobile treatment systems
for these chemical munitions in an effort to preclude any need to
transport them off-site.
Cost evaluation requires assessment of the direct and indirect
capital costs as well as the operating and maintenance (O&M) costs
associated with the alternative. O&M costs are usually a significant
portion of the overall costs. The evaluation of this cost should
consider any long-term financial liability associated with the
response.
Assessment of the last two criteria, acceptability of each
alternative to Federal and State agencies and community acceptance,
requires consultation with these parties. By this point in the range
response process, the public and government agencies should be fully
engaged and their concerns already addressed. Some of the ways the DoD
organization conducting the response can achieve this goal is through
an EPT or RAB (if one exists), and through mechanisms such as public
availability sessions.
Once all the alternatives are evaluated against the nine criteria
to see if they meet the basic requirements, they are compared to one
another to determine the pros and cons of each. For example, one
alternative might provide a reduction in risk equal to another for a
similar cost, but have a far greater potential for requiring another
action sometime in the future. A specific example involves the use of
off-site disposal facilities as opposed to an on-site action. In this
case, the Department of Defense would need to consider the potential
CERCLA liability arising from a release at the off-site facility in
making the selection. Another example would be where one alternative
provides a slightly higher degree of protection than another, but at
vastly greater cost. The balancing of these alternatives will need to
evaluate carefully the significance of the difference in protection and
the significance of the cost difference. Such a determination in
balancing the alternatives should be based on quantitative analysis,
but ultimately the decision is largely a matter of professional
judgment.
(2) Explosives safety and the nine NCP criteria. Explosives safety
issues will be adequately addressed under the current CERCLA process by
using the existing nine criteria described in the final NCP.
Specifically, worker safety is part of the analysis in evaluating the
criterion of short-term effectiveness. EPA states in the preamble to
the final NCP that the short-term effectiveness criterion considers:
who may be exposed during the remedial action; what risks those
populations may face; how those risks can be mitigated; and what risks
cannot readily be controlled. Workers are included in the population
that may be affected by short-term exposures (55 FR 8723, March 8,
1990).
Section 2.2.9 of EPA's Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA, Interim Final,
EPA/540/G-89/004 11 (October 1988) is consistent with the
NCP position. This guidance states, ``Protecting the health and safety
of the investigative team and the general public is a major concern
during remedial response actions. Workers may be exposed to a variety
of hazards
[[Page 50820]]
including toxic chemicals, biological agents, radioactive materials,
heat or other physical stresses, equipment-related accidents, and fires
or explosions.''
---------------------------------------------------------------------------
\11\ Copies of EPA's ``Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA, Interim Final,
EPA/540/G-89/004'' (October 1988) can be obtained, at cost, from the
National Technical Information Service, 5285 Port Royal Road,
Springfield, VA 22161 (telephone 703-487-4650).
---------------------------------------------------------------------------
Furthermore, the NCP explains that the threshold assessment of
overall protection ``draws on the assessments of other evaluation
criteria,'' which include short-term effectiveness (40 CFR 300.430
(d)(iii)(A)). Hence, in the remedy selection process, worker safety is
considered not only when determining the short-term effectiveness of a
remedy, but also as an integral part of the threshold requirement of
overall protectiveness. As EPA stated in response to comments on the
proposed NCP, ``EPA agrees that unacceptable short-term impacts can
cause an alternative to be considered non-protective of human health
and the environment and can remove that alternative from consideration
as a viable option'' (55 FR 8725, March 8, 1990). In summary,
information as presented in the NCP, as well as EPA guidance, ensures
that risks to workers during investigative and response actions would
be adequately addressed within the present CERCLA process.
d. Site-specific response evaluation report: As discussed in
Section IV.E.5. of this preamble, if the identified risks posed by the
military range require an SSRE, an RE letter report may be prepared in
lieu of an RE report. The SSRE report will document the findings of
both the RE and the SSRE. The SSRE report will provide a complete
summary of the information collection and range risk assessment
conducted during the RE, as well as the findings and conclusions of the
SSRE. Depending on the findings of the RE and SSRE, the SSRE report
will make one of the following recommendations:
(1) Identifying the recommended response alternative(s) for
implementation, discussing the hazard(s) the response is to address,
the results of the evaluation criteria, and the means of assessing the
effectiveness of that response after it has been implemented.
(2) Conducting recurring reviews because the quantitative analyses
demonstrated that all identified risks are effectively managed and are
expected to remain managed in the long term.
(3) Issuing a TI determination because, while an identified risk
remains, there are no available alternatives capable of addressing the
risk. Typically, recommendations for other appropriate control measures
and recurring reviews will be part of a recommendation for a TI
determination.
e. Public and government agency involvement: The Department of
Defense will provide a copy of the draft SSRE report to appropriate
Federal and State agencies for review and comment. The Department of
Defense also will publish a notice of availability and brief summary of
the SSRE report in a major local newspaper of general circulation, and
announce a 45-day period for submission of written comments to the DoD
POC for that range. If requested, the Department of Defense also will
hold a public meeting or availability session. Following the public
comment period, the Department of Defense will develop written
responses to significant comments received during the comment period
and consider any issues brought out by these comments.
If significant changes result from this process, it may be
necessary to issue a revised SSRE report and solicit further public
comment. This is necessary only if the changes are so dramatic that
they could not have been foreseen based on information available before
the public comment period. Evaluation of new alternatives because a
waiver of an applicable requirement was not granted is one example of
when this might occur; however, selection of a new preferred
alternative from among those already evaluated would not trigger the
need for further comment. Following the comment period and development
of written responses to those comments, the Department of Defense will
formally document its decision and reasons for choosing the selected
response alternative.
The Department of Defense will prepare a formal decision document
describing the actions to be taken. A copy of the final SSRE report,
the decision document, and all supporting information will become part
of the administrative record for the range response at that site. A
copy of the draft decision document will be provided to the appropriate
Federal or State agency, American Indian tribe, and Federal land
manager for concurrence.
f. Documenting the selection of alternatives: A formal decision
document will identify the alternative(s) to be implemented and discuss
the goals of the response (e.g., the risk to be addressed) and how the
response will achieve those goals. This discussion needs to provide
information as to how the alternative(s) provides for explosives
safety, protects human health and the environment, addresses the
concerns that the public and government agencies expressed in written
comments, and eliminates, reduces, or controls the identified risks
posed by military munitions or other constituents present at the
military range. The decision document also will: (1) Discuss the
Federal and State ARARs; (2) identify any ARARs not met; (3) provide
justification for a waiver of those requirements; (4) specify the
conditions of any waiver; and (5) discuss coordination of the waiver
with appropriate Federal or State agencies. Finally, the document will
discuss whether military munitions or other constituents will remain at
the range. If so, the document also must describe the specific
mechanisms used to ensure that land use remains compatible with any
remaining military munitions or other constituents, and describe the
frequency of recurring reviews. A copy of the decision document and all
supporting information becomes a part of the administrative record for
the range, and a copy of the decision document will be mailed to
appropriate Federal and State agencies, American Indian tribe, and the
current property owner.
7. Site-Specific Response Implementation
Under both the CERCLA response and the RCRA corrective action
programs, implementation of the selected responses is a separate action
from the detailed site assessment, evaluation of remedial alternatives,
and process for selecting the remedy. The Department of Defense sees no
real need for this demarcation; indeed, the Department of Defense hopes
that the preliminary phases of implementing a site-specific response
can be occurring simultaneously with the development of the formal
decision document. This is not an indication that the Department of
Defense will not give the comments received on the SSRE report careful
and deliberate consideration, but rather that the Department of Defense
hopes to speed the design, construction, operation, and monitoring of
the response by capitalizing on existing information, design documents,
or plans. This will be especially true if the alternative is either an
accelerated response used by the Department of Defense at a military
range or a ``presumptive remedy'' used by the Department of Defense,
EPA, or another Federal agency at a site undergoing a CERCLA response
or RCRA corrective action.
a. Implementation planning: Once the site-specific response
selection process is complete, the DoD organization conducting the
response will plan implementation, operation, and monitoring of the
response alternative. This planning process includes several required
steps, such as setting design and performance specifications,
[[Page 50821]]
preparing complete construction drawings and operating plans, and
starting the procurement of any required goods or services. In
addition, the Department of Defense is considering including another
recommended practice: preparing an implementation strategy document to
describe the manner and methods to meet the requirements of applicable
Federal, State, and local regulations for performance and construction;
reduce environmental and community impacts; address the technical
factors related to the design; account for assumptions made in
developing the design; and account for possible sources of error in the
design process. This document also would outline contingency plans for
managing foreseeable deviations.
b. The response implementation plan: As with every other phase, the
Department of Defense believes that focusing the implementation process
is critical to the success of the response. To achieve this, the
Department of Defense proposes to develop a single, concise document
providing all necessary information about the objectives established
for the response, the rationale for those objectives, and how those
objectives will be achieved. As necessary, the document also will
detail the design, construction, operation, maintenance, monitoring,
and decommissioning of the response alternative. An explosives safety
plan addressing explosives safety risks will be developed and forwarded
to DDESB for approval. This document will be part of the administrative
record, and the Department of Defense will publish a notice of its
availability in a local newspaper. The notice will summarize the
purpose of the document and tell the public where and how to gain
access to it.
c. Implementation of the alternative: The first step in
implementing the response is development of appropriate sets of
construction drawings, engineering calculations, process flow diagrams,
critical path analyses, and lists and specifications for all equipment
and materials. Development of operational guidance for and training of
personnel involved in implementing the response should begin as needed.
Once these elements are in place, implementing the response is a two-
phase process. The first phase involves the actual construction and
initial operation of the response, and the second phase involves
operation until the response achieves the response objectives. Actual
implementation or construction includes conducting necessary quality
assurance inspections and preparing any necessary periodic reports on
progress in executing the response. Clearly, there must be DDESB review
of all phases of the implementation process, including the construction
and acceptance testing activities. This function ensures that the
construction of the remedy follows the specifications and requirements
detailed in the planning process for implementation and the terms of
any contracts for operation. The Department of Defense also will
monitor the response to determine its effectiveness. Upon completion of
each phase of monitoring, the results will be analyzed to determine if
the remedy has achieved the response objectives.
d. Public and government agency involvement: Any releasable
documents or reports developed during this phase of the range response
process are part of the administrative record and will be made
available for public inspection at the information repository. The
public, government agencies, and American Indian tribes may take
concerns or questions about the response directly to the DoD POC, the
EPT, or the RAB. Federal or State agencies that have granted a waiver
from an applicable requirement may request regular updates on the
progress of the response and its compliance with any conditions imposed
in granting the waiver.
8. Recurring Reviews
In this rule, the Department of Defense is proposing to require
recurring reviews of ARs, conditions imposed as part of a TI
determination, and site-specific responses. Sites issued a
determination of no further action will not be subject to recurring
reviews, but if a previously unidentified risk is identified at a later
date, the Department of Defense is obligated to take necessary response
actions.
The purpose of recurring reviews is to determine if the responses
taken continue to ensure explosives safety, protect human health and
the environment, prevent off-range releases of other constituents, and
provide an opportunity for assessing the applicability of new UXO
technology or other new technology that will overcome a previous TI
determination.12 The focus of the review will depend upon
the response objectives and the specific responses implemented to
address the identified hazards at the range. For example, for responses
that provided explosives safety or human health protection through
limiting access to the range, the recurring review will focus on the
effectiveness of the mechanisms and institutional controls put into
place to control access. For ranges where a long-term response is
required, the recurring review will focus the ability of the response
to achieve its specific performance objectives within a specified time
frame.
---------------------------------------------------------------------------
\12\ The Department of Defense has established a UXO Technology
Executive Committee that will centralize the assessment of new UXO
technologies.
---------------------------------------------------------------------------
a. Frequency of recurring reviews: Under CERCLA Section 121, EPA
conducts reviews of remedial actions at sites on the NPL at least every
5 years, starting with implementation of the remedial action. The
Department of Defense is proposing that the first recurring review at
closed, transferred, and transferring ranges occur after 3 years.
Subsequent recurring reviews would occur at year 7 and at 5-year
intervals thereafter, or as necessary to ensure that the response is
still effectively addressing the identified risks posed at the range.
The Department of Defense proposes this frequency because problems with
responses typically manifest themselves in the time shortly after
implementation. Recurring reviews will be set on a more frequent
schedule (e.g., years 2, 5, 9, 14 * * *) when necessary.
The Department of Defense also proposes that should a problem with
a response be identified outside the recurring review process, for
example by a private citizen, that party can submit a request to the
DoD component responsible for the range to have the response reviewed.
Such a request will need to provide sufficient details as to the
location of the range, the problem noted, and the identity of the party
submitting the request so that it can be handled in a timely manner.
b. Documenting recurring review findings: At each recurring review,
the Department of Defense will formally document the review procedures
and the evaluation criteria used to assess the effectiveness of the
response in a recurring review report. The document also will describe
any information collected or analysis conducted as part of the review.
Finally, the document will provide a discussion of the findings,
stating whether or not the response continues to address the hazards at
the range and if any new problem is discovered in the period since the
last review. If the response failed to remain effective, or if a new
problem is discovered, the DoD component responsible for that range
will provide a discussion of what actions will be taken to return the
response to full effectiveness. If a new problem is identified, the
responsible DoD component will document the actions to be taken to
address that problem and the schedule for the
[[Page 50822]]
actions. For the most part, this will involve returning to the
appropriate phase of the range response process (e.g., go back to the
RA/AR phase and implement an AR). The responsible DoD component then
will take action as necessary to address the risks posed by the range.
c. Public and government agency involvement: If the review
determines that the response remains effective, the Department of
Defense will publish a notice to that effect in a major local newspaper
of general distribution. The recurring review report will be included
in the administrative record and made publicly available at the
information repository. If the review finds that the response is not
effective, the Department of Defense will publish a notice to that
effect and will hold a public meeting or availability session if
requested to do so by the public. Furthermore, the Department of
Defense will prepare a formal decision document describing any actions
to be taken and will send formal written notice to appropriate Federal,
State, and American Indian tribal officials that discusses the findings
of the review and the Department of Defense's planned actions to
address the risks posed by the military range. A copy of the draft
decision document will be provided to the appropriate Federal or State
agency, American Indian tribe, and Federal land manager for
concurrence.
9. Ending the Range Response Process
Following completion of an appropriate number of recurring reviews
to demonstrate that the range is unlikely to pose an explosives safety
risk or a risk to human health or the environment, the Department of
Defense will administratively close out and end the range response.
Typically, this will require that:
(1) The Department of Defense has demonstrated that any military
munitions or other constituents at the range pose minimal hazards.
(2) The specific response objectives are achieved and all related
monitoring activities to demonstrate that are complete.
(3) For responses that do not involve restoring groundwater or
surface water (for example, in-situ soil treatment), the response is
fully operational and performing to design specifications. A response
becomes ``fully operational'' either 1 year after construction is
complete or when the remedy is determined to be functioning properly
and is performing as designed, whichever is earlier.
(4) For response actions involving treatment or other measures to
restore groundwater or surface water quality to a level that ensures
protection of human health and the environment, the operation of such
treatment or other measures for a period of up to 10 years after the
response becomes ``fully operational'' will be considered part of the
response action, and not O&M.
(5) The only remaining activities at the site involve O&M. O&M
measures are initiated after the response action has achieved its goal
as outlined in the decision document, and is determined to be ``fully
operational'' (except for groundwater or surface water restoration
actions as described in IV.E.9.(4)).
Once these requirements are met, the Department of Defense will
prepare a range close-out report justifying completion of the response.
This report will include:
(1) A summary of the range's history and past and current
conditions.
(2) Demonstration that all response objectives have been met.
(3) A determination that sufficient monitoring results have been
collected to demonstrate that the response objectives have been
achieved.
(4) Demonstration that any long-term maintenance requirements for
the response are capable of being successfully carried out.
(5) Documentation that the range response has effectively addressed
the hazards posed by military munitions and other constituents at the
range.
a. Public and government agency involvement: The responsible DoD
component will provide a copy of the draft range close-out report to
the appropriate State and Federal agencies, American Indian tribe, and
Federal land manager for their review and comment. The Department of
Defense also will publish a notice of availability and brief summary of
the range close-out report in a major local newspaper of general
circulation, and announce a 45-day period for submission of written
public comments to the DoD POC for that range. If requested, the
Department of Defense also will hold a public meeting or availability
session. The Department of Defense will prepare a formal decision
document describing the actions to be taken, and will provide that
document to the appropriate regulators, American Indian tribe, and
Federal land manager for concurrence in accordance with Sec. 178.14 of
this rule. A copy of the draft decision document will be provided to
the appropriate Federal or State agency, American Indian tribe, and
Federal land manager for concurrence. The final range close-out report,
decision document, and supporting information will be placed in the
administrative record for the range response.
b. The Department of Defense's continuing obligation: Under DERP
and 10 U.S.C. 172, the Department of Defense is never fully relieved of
its obligation to address environmental damages caused by military
munitions or other constituents. If at some future date a problem is
discovered at a range where the Department of Defense completed the
range response process, the Department of Defense will conduct an
appropriate response to address that problem. This response typically
will be handled as an explosives or military munitions emergency
response; however, if the circumstances indicate a need for a more
detailed response, the Department of Defense will reopen the range
response process and conduct any appropriate actions. If a response is
needed due to the Federal land manager's or property owner's failure to
comply with the deed restrictions or other land-use limitations placed
on the use of the property, however, the Department of Defense is not
responsible for conducting any part of the response that has been made
necessary by this failure to comply. After the range rule process has
been administratively ended, the Department of Defense is still
responsible for continuing any long-term maintenance or monitoring
requirements that were part of the Department of Defense response at a
given range.
The Department of Defense also has stated that if technology limits
the range response and the use of the land is restricted, but later,
cost-effective improvements in technology allow for the removal of such
a restriction, the Department of Defense is responsible for conducting
a later response, if doing so is consistent with the land transfer
agreement and reasonably anticipated land uses that were originally
identified and there is a current need for the removal of such a
restriction. Assessments of the applicability of new technology
typically will occur in the recurring review phase, but also may arise
after the range response has been administratively ended. Assessment of
the applicability of new technology will relate to new UXO technology
or other new technology that will overcome a previous TI determination.
F. Other Issues
1. DoD Environmental Response Authorities and Relationship to Other
Laws
a. Regulatory and environmental response authorities: In this
proposed rule, the Department of Defense has
[[Page 50823]]
articulated, for the first time in regulatory form, the nature and
extent of its environmental response authorities under DERP, DDESB, and
CERCLA. It has chosen to do so in the case of response activities at
closed, transferred, and transferring ranges because of the unique
risks to safety, human health, and the environment posed by such sites,
and because of the Department of Defense's expertise in safely managing
the risks posed by military munitions and military ranges. DERP, DDESB,
and CERCLA give the Department of Defense authority to respond to
releases or threatened releases from its facilities (including NPL
sites). Like any other executive agency that has been directed to carry
out a legislative mandate, the Department of Defense is entitled to
create regulations that spell out how this mandate will be effectuated.
The Department of Defense has chosen to do this for range responses
because of two focused, statutory mandates that direct the Department
of Defense's attention to the issue of ordnance and range activities:
DERP and 10 U.S.C. 172, which established the DDESB. In this proposed
rule, the Department of Defense intends that military munitions and
other constituents on closed, transferred, or transferring military
ranges are to be addressed under DERP and DDESB authorities in a manner
that is not inconsistent with CERCLA. Accordingly, substantive
requirements of RCRA may be the source of ARARs to any response actions
deemed necessary. This proposed rule's process is one that is tailored
to the unique risks posed by military munitions and military ranges
(i.e., the risks of UXO and any other constituents that may emanate
from UXO, exploded ordnance, or range activities).
When Congress established DERP in 1986, it directed the Secretary
of Defense to ``carry out a program of environmental restoration'' at
facilities under the jurisdiction of the Secretary of Defense. Section
2701(b)(2) of DERP specifically cites one of the program goals of DERP
to be the ``correction of other environmental damage (such as detection
and disposal of unexploded ordnance) which creates an imminent and
substantial endangerment to the public health or welfare or to the
environment.'' Under 10 U.S.C. 172, the Department of Defense has a
specific charter to prevent ``hazardous conditions from arising to
endanger life and property inside or outside storage reservations''
when it comes to military munitions (including UXO). The DoD agency
entrusted with carrying out this mandate is the DDESB. The DDESB is a
multi-Service entity that has issued military munitions safety
standards and guidance documents such as DoD Directive 6055.9,
Ammunition and Explosives Safety Standards,13 that are
followed by all of the armed Services. Case law and the opinion of the
U.S. Attorney General support the concept that the DDESB has broad
rulemaking powers regarding safety issues over munitions (1949, 41 Op.
Atty. Gen. October 27; 14 see also McQueary v. Laird, 449
F.2d 608 (10th Cir. 1971) 15 and Pratt v. Hercules, Inc.,
570 F. Supp. 773 (D. Utah 1982)).16 Thus, DERP and DDESB are
the foundation for the Department of Defense's creation of a range-
specific response process.
---------------------------------------------------------------------------
\13\ Copies of DoD Directive 6055.9 may be obtained, at cost,
from the National Technical Information Service, 5285 Port Royal
Road, Springfield, VA 22161 (telephone 703-487-4650).
\14\ Copies of this Attorney General opinion may be obtained by
visiting the DoD range rule administrative record at 910 Clopper
Road, Gaithersburg, MD 20878-1399 (telephone 301-258-8753).
\15\ Copies of this case may be obtained by visiting the DoD
range rule administrative record at 910 Clopper Road, Gaithersburg,
MD 20878-1399 (telephone 301-258-8753).
\16\ Copies of this case may be obtained by visiting the DoD
range rule administrative record at 910 Clopper Road, Gaithersburg,
MD 20878-1399 (telephone 301-258-8753).
---------------------------------------------------------------------------
The DERP and DDESB authorities are then combined with the
preexisting authority and obligations under CERCLA to engage in
environmental response activities. The Department of Defense was
already involved in removal and remediation activities at its
facilities under the auspices of its Installation Restoration Program
(IRP) for many years prior to the creation of CERCLA. The scope of this
early IRP was responding to the releases or the substantial threat of
releases of hazardous substances into the environment, as well as
pollutants and contaminants that present an imminent and substantial
danger to public health or welfare. The Department of Defense's IRP
continued, with certain modifications, after the enactment of CERCLA in
1980. The Superfund Amendments and Reauthorization Act (SARA) clarified
the nature of the Department of Defense's authority to respond to
releases from its installations. SARA created CERCLA Section 120, which
waived Federal sovereign immunity to the requirements of CERCLA.
CERCLA Section 104 states that the President is authorized by
Congress to take removal and remedial actions consistent with the NCP
whenever there is a release or a substantial threat of a release of a
hazardous substance into the environment or a release or threat of
release of a pollutant or contaminant into the environment that may
present an imminent and substantial danger to public health or welfare.
CERCLA Section 115 states that the President is authorized to delegate
any assigned duties or powers and to promulgate any regulations
necessary to carry out the requirements of CERCLA.
In E.O. 12580 (59 FR 2923 (January 23, 1987)), the President in
Section 2(d) delegated his Section 104 authority (as well as other
authorities) to the Secretary of Defense with respect to releases or
threatened releases where either the release is on or the sole source
of the release is from any facility or vessel under the jurisdiction,
custody, or control of the Department of Defense. The President's
delegation to the Secretary of Defense is not conditioned on the NPL
status of the release in question. The Department of Defense must
exercise its CERCLA authority in a manner consistent with the
requirements of Section 120 of CERCLA.
CERCLA Section 120 requires the Department of Defense to perform
restoration activities in a manner consistent with guidelines, rules,
regulations, or criteria developed by EPA, such as the NCP. In the NCP,
EPA has recognized the various delegations made in E.O. 12580 and the
various responsibilities of Federal agencies under CERCLA Section 120
by referring to Federal agencies that are responding to releases from
their facilities as CERCLA ``lead agents.'' This ``lead agency'' status
applies regardless of whether the release in question is from an NPL or
a non-NPL site (i.e., ``the Federal agency maintains its lead agency
responsibilities whether the remedy is selected by the Federal agency
for non-NPL sites, or by EPA and the Federal agency or by the EPA alone
under CERCLA Section 120'' (40 CFR 300.5)).
The Department of Defense has been designated as the lead removal
response authority with respect to military munitions in the NCP (40
CFR 300.120(d)). Thus the Department of Defense has lead agency
authority under CERCLA (see also 40 CFR 300.5). Currently under the
CERCLA program, the Department of Defense has the authority to select
the appropriate response at non-NPL sites that are under the
jurisdiction, custody, or control of the Department of
Defense.17 At NPL sites, EPA and the Department of Defense
jointly choose the appropriate
[[Page 50824]]
response. If there is a disagreement, EPA has the final decision. The
Department of Defense wants to make it clear that the hallmark of an
effective ``lead agency'' is effective involvement by the public, as
well as by EPA and State regulators. The Department of Defense believes
that the process proposed in this rule allows responses at military
ranges to be evaluated in an open fashion, with direct public and
regulator involvement. Other Federal agencies have been delegated
similar CERCLA authorities in E.O. 12580 in connection with facilities
under their jurisdiction, custody, or control.
---------------------------------------------------------------------------
\17\ Note that DoD authorities under DERP also extend to
carrying out response actions consistent with DERP and CERCLA at a
``site which was under the jurisdiction of the Secretary'' of
Defense.
---------------------------------------------------------------------------
While this proposal is not inconsistent with the CERCLA process, an
interaction and balancing of immediate UXO safety concerns with
potential chronic environmental concerns must occur. Unlike other
materials, UXO poses an immediate explosives safety risk to human
health that must be considered before environmental concerns can be
addressed. While explosives safety remains an overriding concern, the
Department of Defense recognizes that if CERCLA hazardous substances or
RCRA hazardous wastes exist on the range, other regulatory authorities
(e.g., State RCRA authorities) may apply. As a practical matter,
requirements could be imposed outside of the area suspected of
containing UXO to address contamination from these hazardous substances
or waste (for example, groundwater collection).
Certain regulators have designated constituents of military
munitions as a hazardous waste or hazardous substance under their State
CERCLA/RCRA programs. Some States may assert a regulatory cleanup
authority, despite the Federal statutory bases for the Department of
Defense's response process. Should conflicts develop between the
Department of Defense and regulators, it is the Department of Defense's
intention to work out compromise solutions that will respect the
statutory and regulatory authorities of all parties and yet achieve the
necessary expedited and safe response envisioned by this proposed rule,
while recognizing that the regulatory agency retains decision-making
authority, consistent with CERCLA and RCRA, for human health and the
environment.
The Department of Defense's proposed range-specific response
process is further supported by the unique threats that military
munitions pose to human health and the environment. The Department of
Defense's use of military munitions has arisen from its mission of
national defense, and the Department of Defense has special expertise
in managing explosives safety risks. As described throughout this rule,
the risks to safety, human health, and the environment inherent in
locating and responding to such relatively unstable materials as UXO
are considerable. The location and response activities associated with
other constituents are equally dangerous because such activities will
typically occur within areas containing UXO. The Department of Defense
is the recognized expert in the management of these risks. With its
years of experience in safely handling and managing UXO, the Department
of Defense has the expertise for determining when immediate safety
concerns may prevent certain actions to address potential environmental
concerns. Due to the specialized mission of the Department of Defense,
the requirement for explosives safety expertise is a critical element
unavailable within other organizations. The Department of Defense
maintains the nation's institutional military munitions knowledge. EPA
has formally recognized the Department of Defense's expertise in
explosives safety, and it is appropriate that the Department of Defense
regulate the safety implications of UXO on ranges. Typically, Federal,
State, and local regulators seek the Department of Defense's expertise
when it comes to safely managing military munitions and other ordnance
discovered at non-DoD sites. Since it is an expert in military
munitions, it is appropriate for the Department of Defense to use its
inherent statutory explosives safety and environmental response
authorities in DERP, 10 U.S.C. 172, and CERCLA to address the risks
posed by military munitions and other constituents at the Department of
Defense's closed, transferred, and transferring military ranges.
In summary, the Department of Defense believes there are three
reasons that justify establishing a special process for response
activities at its closed, transferred, and transferring military
ranges: (1) The specific emphasis addressing the imminent and
substantial threats posed to human health and the environment by
military munitions that is found in DERP and 10 U.S.C. 172; (2) the
general delegation of response authority given to the Department of
Defense by Congress under DERP and by the President under CERCLA; and
(3) the unique nature of the threats posed to human health and the
environment by military munitions and military ranges.
b. Relationship to other laws: Under this proposal, the Department
of Defense will follow the ARAR process in selecting response
activities at its closed, transferred, and transferring ranges, and as
such, many environmental laws will be considered at this stage. If
further action is necessary and can be safely performed, these
additional environmental laws will be considered. For example, in the
process of removing military munitions, or even installing some
protective measures, habitat destruction may occur. If the response
action could affect a species listed pursuant to the Endangered Species
Act, the Department of Defense must consult with the U.S. Fish and
Wildlife Service to ensure that the action is not likely to jeopardize
such species or adversely impact its designated critical habitat. In
addition, prior to any excavation, the Department of Defense will take
appropriate measures to identify resources protected under the National
Historic Preservation Act, Archeological Resources Preservation Act,
and Native American Graves Protection and Repatriation Act. If any
protected resources are likely to be affected, the Department of
Defense will comply with the requirements of these acts.
Another example of coordination with other laws involves the Safe
Drinking Water Act (SDWA). If contaminants on a military range are
affecting the quality of an actual or potential drinking water supply
(e.g., a Class I or II groundwater as defined under the SDWA), then,
consistent with CERCLA Section 121, this contamination must be
addressed. Safety factors under the DERP program would still be
considered, and it is possible that safety factors could require
alternatives other than source removal, such as collection and
treatment of contaminated groundwater outside the range area.
Clean Air Act requirements such as emission limits in a State
Implementation Plan (SIP) could be a source of ARARs. In the case of
remedial activities that generate air emissions, for example, the
response would have to meet the SIP's substantive requirements.
Under RCRA, if military munitions/UXO are excavated from the range
and taken off-site, RCRA hazardous waste requirements would apply, as
appropriate. As stated in EPA's military munitions rule, ``used or
fired munitions are solid wastes when they are removed from their
landing spot and then either (1) managed off-range * * * or (2)
disposed of (i.e., buried or landfilled) on-range'' (62 FR 6632,
February 12, 1997). Also, EPA has made it clear in the preamble to the
NCP and various CERCLA guidance documents that aspects of the RCRA
corrective action program may also be a source of
[[Page 50825]]
ARARs for the Department of Defense's response actions. For example,
the flexibility afforded to restoration activities by RCRA's corrective
action management unit and temporary unit concepts may be of use in
expediting the Department of Defense's restoration activities.
The Department of Defense solicits comments on the interaction of
this proposed range rule process with other environmental laws and
regulations.
2. Water Ranges
The process of conducting response activities at closed,
transferred, and transferring water ranges is particularly daunting.
The retrieval, rendering safe, and even the location of military
munitions in such ranges are extremely difficult. For example, tidal
action may make maneuvering difficult and visibility poor; deep waters
require remotely operated equipment; and military munitions often are
buried in sediments. Orientation and location are therefore extremely
difficult in the ocean environment. Typically, the Navy is limited to
diver point searches and sweeps for recovery of military munitions.
There is no technology available with the accuracy and discrimination
needed to rapidly survey, detect, pinpoint, and classify underwater
military munitions.
UXO has a long life in the underwater environment. Projectiles and
bombs are designed with thick metal cases that take years to corrode.
Nonetheless, experience with aged intact military munitions reveals
that fills are typically in deteriorated condition, with formation of
metal/explosive compounds and other chemical changes. Because such
materials may be more sensitive, most UXO recovered from water ranges
is destroyed soon after it is recovered. The toxicity of military
munitions ingredients in water ranges generally is low. Most toxic
compounds are rapidly decomposed by hydrolysis, photolysis, and
oxidation once they are dissolved in water.
Because of the inherent difficulty in locating, rendering safe,
and/or retrieving military munitions in water ranges, and because of
significant risks to human health and safety posed to Navy personnel by
such activities (i.e., the dangers inherent in underwater activities),
as well as the water range UXO itself (i.e., its relatively unstable
and sensitive nature), the types of ARs and site-specific responses
will likely be significantly different than the responses for land-
based military ranges. With regard to responses at water ranges, this
proposed rule will be implemented in a manner consistent with the
rights and obligations of the United States under the Law of the Sea
Convention.
3. Other Range Activities
Activities not related to training or researching, developing, or
evaluating military munitions may occur or have occurred on closed,
transferred, and transferring military ranges. Some examples of these
activities are open burning/open detonation (OB/OD) and certain
explosive ordnance disposal (EOD) activities.
OB/OD sites are used to thermally treat waste military munitions by
a controlled burn or a controlled detonation. Some OB/OD sites were in
use for a number of years before RCRA was enacted. Many OB/OD sites
were located within military ranges. OB/OD operations may not have
completely destroyed the military munitions, resulting in the presence
of UXO and its associated explosives safety risks.
OB/OD sites that exist on closed, transferred, and transferring
ranges and were never permitted (and did not need to be permitted
during their active life) are covered by this rule because they may
contain UXO or other constituents. According to current RCRA standards,
RCRA-permitted OB/OD facilities (or OB/OD facilities that should have
been permitted) need to undergo RCRA closure as directed in their
individual treatment facility permit or post-closure care permit, once
the decision has been made that the facility will no longer be
operated.
In ``Standards Applicable to Owners and Operators of Closed and
Closing Hazardous Waste Management Facilities' (59 FR 55778, November
8, 1994), EPA recently proposed eliminating the regulatory requirement
that it issue permits to all facilities subject to post-closure care
requirements in favor of imposing the same substantive requirements at
the facility by using ``alternate legal authorities.'' Although EPA's
rule has not been finally promulgated, the Department of Defense
intends to work with EPA to establish its CERCLA/DERP authorities as an
adequate alternate legal authority for purposes of CERCLA/DERP-based
response actions (in lieu of RCRA closure activities) at appropriate
OB/OD sites located on the Department of Defense's closed, transferred,
and transferring ranges.
EOD ranges are not sites that are used for routine OB/OD
activities. EOD sites are designated to be used for EOD procedures that
are conducted during munitions or explosives emergency responses.
Individual and organizational EOD training may also be conducted at
these sites. Often, EOD sites are located within military ranges, which
provide the explosives safety distances from personnel, buildings, and
facilities, as well as controlled access to the ranges. Both of these
conditions also are required for EOD sites. EOD sites involved in such
activities are within the scope of this proposed rule. EOD activities
that are non-emergency and non-training are usually waste treatment and
disposal activities and are conducted at permitted facilities; such
activities are not covered by this rule.
4. Chemical Agent Constituents
Live chemical agent testing and demilitarization prior to 1969 was
performed on certain military ranges. Some of this testing occurred on
closed and transferred ranges, and possibly on some transferring
military ranges as well. When chemical munitions were employed on a
military range, a certain percentage of the fired military munitions
did not function and became UXO. Chemical UXO poses a unique and
difficult situation for the technical escort unit (TEU), an EOD team
specially trained to handle chemical munitions. Although the explosive
component of a chemical UXO is much less than that of the conventional
high-explosive UXO, TEU personnel must assess the round and handle the
UXO wearing personal protective equipment and follow special procedures
and techniques unique to the Department of Defense and the Chemical
Warfare Material program in case of a chemical release. This greatly
slows the assessment and handling process. Increased safety precautions
are necessary when there is a potential for the presence of chemical
UXO, due to the potentially greater risk to the health and safety of
workers and the public should a chemical UXO detonate. In addition, the
transport and destruction of 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. In addition, notification is required to be
given to Congress and affected State governors prior to any such
destruction or transportation.
5. Buried Military Munitions
The historical and then-acceptable practice by the Department of
Defense was to bury certain military munitions. Many of these past
burial sites have been remediated, but a number of them still exist,
and some may be located on closed, transferred, or transferring ranges.
The Department of Defense
[[Page 50826]]
believes that military munitions disposed of by burial or disposal in a
landfill are a solid waste, and, if hazardous, would be subject to RCRA
Subtitle C regulation when unearthed and further managed; they could
also potentially be subject to RCRA corrective action and/or CERCLA.
These buried munitions pose the same safety and hazard risks as UXO. In
fact, buried munitions can involve greater safety risks than UXO,
because the number and types of military munitions may not be known.
The presence or suspected presence of buried military munitions will be
a significant factor in whether response actions can be performed on
the range. Even though they are potentially subject to RCRA, burial
sites that are located on closed, transferred, or transferring military
ranges should be evaluated in accordance with this rule. The Department
of Defense solicits comment on this approach of addressing past burial
sites of military munitions on closed, transferred, and transferring
ranges.
6. Depleted Uranium
Depleted uranium (DU) is a byproduct of the uranium enrichment
processes. DU is used in the commercial sector by the aircraft industry
as counterweights, by the power industry as radiation shielding, and by
the military as an armor-piercing projectile due to its hardness,
strength, and density. DU's potential radiation exposure is small. As
an alpha particle emitter, its radiation does not penetrate human skin
or even ordinary paper. DU may be present on closed, transferred, and
transferring ranges. DU is regulated by the U.S. Nuclear Regulatory
Commission.
7. Regulator, American Indian Tribe, and Public Involvement
a. General: The Department of Defense will ensure a substantial
role for the public, American Indian tribes, and regulators in this
rule's process. In addition to the detailed roles outlined in Section
IV.E. of this preamble, d etailed discussion of the phases of the range
response process, the Department of Defense encourages States to enter
into a Defense/State Memorandum of Agreement (DSMOA) to increase State
involvement and strengthen the DoD/State partnership. The Department of
Defense will make use of established RABs to involve the public
throughout the process, or other forums, such as EPTs, as the specifics
of the site and interest of the community dictate. While a finalized
Defense and Tribal Memorandum of Agreement (DTMOA) does not yet exist,
a DTMOA would be treated in a similar fashion.
The Department of Defense intends to seek regulatory agency
involvement throughout the range response process. Communication and
participation with environmental regulators should be frequent and
should go beyond participation in RABs. While RABs are a valuable forum
for communication between community, regulator, and the Department of
Defense stakeholders, the RAB should not serve as a substitute for
regulator involvement. The level of regulator participation should be
consistent with the BRAC guidance on regulator involvement. Frequent
communications, such as weekly or monthly progress meetings, data
exchanges, and early notification of new information, are critical to
building a team approach between environmental regulators and the DoD
component responsible for the range.
Range responses executed with BRAC and Environmental Restoration
Account funds will be eligible to be incorporated into the DSMOA
process. The DSMOA process is designed to account for State oversight
in the BRAC and Environmental Restoration Account programs, but
prohibits incorporation of other projects not funded by these two
accounts. To address the revision of the cooperative agreements, the
Department of Defense is contemplating a special revision cycle for the
States to incorporate new requirements resulting from the DoD range
rule.
b. American Indian tribes: The U.S. Government has a unique legal
relationship with Native American tribes as set forth in the U.S.
Constitution, treaties, statutes, and court decisions. In implementing
this rule's proposed process, the Department of Defense will act in a
manner that is consistent with the ``Government-to-Government Relations
With Native American Tribal Governments'' memorandum issued by
President Clinton (59 FR 22951, May 4, 1994), the Native American
Graves and Repatriation Act (as mentioned in Section IV.F.1.b. of this
preamble, Relationship to Other Laws), and any military policies on
Native American relations.
Section 178.4(c) provides a definition of American Indian tribe as
used in this proposed DoD range rule. To be afforded substantially the
same treatment as States under this rule, and thus receive a
concurrence role, the governing body of the American Indian tribe must
be federally recognized by the Department of Interior; have an
appropriate tribal governing body that performs health, safety, or
environmental functions; and have real property interests (as defined
in Sec. 178.4(l) of this rule) over some or all of a closed,
transferred, or transferring range at which a response, including pre-
response activities, is ongoing or contemplated.
To ensure meaningful participation by federally recognized tribes
and villages that do not meet this rule's definition of an American
Indian tribe, the Department of Defense encourages such tribes and
villages to participate in RABs and/or EPTs as applicable, and to
participate in all public forums provided (such as attending public
meetings and technical education programs, and commenting on site-
specific documents and notifications produced during the range response
process). On a site-specific basis, the Department of Defense intends
to notify, coordinate with, and consult with Native American tribes and
Native Alaskan villages in accordance with tribal trust obligations and
with the presidential memorandum on government-to-government relations.
Furthermore, the Department of Defense recognizes that federally
recognized tribes and villages have specific rights created under
treaties, statutes, and other regulations. For example, the NCP
provides that a Native American tribe may bring an action for injury
to, destruction of, or loss of natural resources belonging to, managed
by, controlled by, or appertaining to such tribe, or held in trust for
the benefit of such tribe, or belonging to a member of such tribe if
such resources are subject to a restriction on alienation (55 FR 8788,
March 8, 1990). Nothing in this proposal is intended to preempt or
restrict such tribal rights, privileges, or authorities.
This proposal also describes what information and notices are to be
provided to appropriate officials of the American Indian tribes (see,
for example, Sec. 178.7(e)). Notices to these officials should also
include the affected trustee (e.g., the Department of Interior), when
applicable. The Department of Defense particularly requests comments on
this portion of the proposed rule, especially concerning the
relationship between federally recognized tribes and this rule, the
level of detail needed on this subject, and the interaction between
tribes and States under the range rule.
c. State involvement in ARARs: The Department of Defense will
provide the States 45 working days to review the draft RA/AR report,
the draft RE report if prepared, the draft SSRE report, the draft range
close-out report, and the draft recurring review report. A key
component of the DoD/State partnership will be the communication of
potential Federal and State ARARs and, as appropriate, other pertinent
advisories,
[[Page 50827]]
criteria, or guidance to be considered (TBCs), prior to the response
selection. ARARs and TBCs will be identified early in the alternatives
analysis to allow adequate time to identify them and screen the
alternatives appropriately. The Department of Defense will request that
the States review and concur in the draft decision document for each
phase of the range response process. If the responsible DoD component
is considering a waiver of State ARARs, it will place the waiver
request in the appropriate decision document being submitted for
concurrence.
8. Small Arms Ranges
Small arms ranges are a subset/type of military ranges. Military
ranges are designed to teach, sustain, and maintain individual and
collective group (i.e., unit) skills. Multipurpose ranges support
integrated live-fire training of large caliber weapons (such as tanks)
with small arms (machine guns). Small arms training is therefore not
always confined to a range dedicated solely to a particular type of
small caliber weapon. Because small arms ranges, along with large
caliber and multipurpose ranges, are commonly configured around a
common impact area in a range complex, small arms ranges can be located
inside the surface danger zone of other ranges, such as artillery or
tank ranges, thus increasing the chance of UXO or other military
munitions and debris being present on the range. It is also possible
that the area of the small arms range may have been used in the past as
a military range that employed large caliber weapons, thus again
increasing the chance of UXO or other military munitions and debris
being present.
Smaller caliber weapons also are uniquely military in nature due to
the types and specifications of ammunition they use; they must meet
military specifications and be manufactured to U.S. and North Atlantic
Treaty Organization (NATO) standards. The ammunition used is designed
for a number of purposes: for use against armored aircraft, light
armored vehicles, concrete shelters, and other bullet-resistant
targets; incendiary effects against aircraft; signaling; personnel; and
light material targets. Due to the type and specifications of the
ammunition, small arms ranges are covered by this proposed rule if they
are located on a closed, transferred, or transferring military range.
9. Guidance
The Department of Defense will develop implementing guidance on
this proposed rule. The guidance will be coordinated with the EPA,
States, American Indian tribes, and other Federal agencies before being
issued as final. This guidance will address, at a minimum,
implementation of the safety risk assessment model or protocol, the
decision-making process, and record searches.
10. Dispute Resolution
The Department of Defense has structured this proposed process for
range response activities to maximize frequent and meaningful public,
American Indian tribe, and regulator involvement. As such, the process
should typically resolve issues before they become disputes. The
proposed rule contains a formal alternative dispute resolution (ADR)
process for Federal and State regulatory agencies, American Indian
tribes, and Federal land managers in Sec. 178.15(b).
If, however, a dispute arises that cannot be resolved informally,
the Department of Defense encourages any property owner who is not
specifically described in Sec. 178.15(b) and who may feel aggrieved by
the Department of Defense's response activities to pursue the following
ADR 18 mechanism with the Department of Defense to resolve
differences: A property owner disputing a response at a closed,
transferred, transferring range can submit the dispute in writing to
the DoD POC for that range. The Department of Defense will attempt to
resolve the dispute within 30 days, or a longer period if mutually
agreed upon. Negotiation and other forms of mutually acceptable,
nonbinding ADR, which may include non-binding mediation by a qualified
third party, may be utilized. If a mutually agreeable resolution is
reached, it will be documented in writing. If, after 30 days or a
longer agreed-upon period, a mutually acceptable resolution is not
reached, the parties may exercise any rights, remedies, or privileges
available to them under applicable law. For example, if a hazardous
substance is involved, the citizens' suit provision of CERCLA may be
applicable. Additionally, procedures under the Military Claims Act (10
U.S.C. 2732 et seq.) could be utilized by private property owners of
transferred ranges. In addition, the dispute resolution processes
spelled out in E.O. 12088 (43 FR 47707, October 13, 1978) and E.O.
12146 (44 FR 42657, July 18, 1979) are available for disputes between
Federal agencies and between Federal and State agencies. The Department
of Defense solicits input on whether this ADR process for property
owners should be a mandatory requirement or if any mechanisms should
even be suggested.
---------------------------------------------------------------------------
\18\ The Administrative Dispute Resolution Act (5 U.S.C. 571 et
seq.) and E.O. 12778 (56 FR 12778 (October 23, 1991)) encourage
Federal agencies to utilize ADR processes to resolve issues that
might otherwise be litigated.
---------------------------------------------------------------------------
A more formalized dispute resolution procedure is included for
Federal and State environmental regulatory agencies, American Indian
tribes, and Federal land managers in Sec. 178.15(b). The Department of
Defense encourages environmental regulators, American Indian tribes,
and Federal land managers to utilize this dispute resolution procedure
instead of asserting additional statutory authorities over
environmental remediation at military ranges, although the use of these
procedures does not preclude the use of other statutory authorities.
Additionally, site-specific or area-wide agreements may be applicable
to a given military range which may provide for alternative dispute
resolution procedures. The procedure specifically applies to Federal
and/or State environmental regulators, American Indian tribes, and
Federal land managers as appropriate.
The formal procedure provides for five levels of dispute
resolution: the project manager level, the installation commander
level, the military headquarters level, the environmental policy-maker
at the Secretariat staff level, and an appropriate political appointee
with responsibility for environmental policy within the responsible DoD
component. Because the title varies among the military departments, the
terms ``headquarters level'' and ``principal environmental policy-maker
level'' are used. For example, for the Air Force, the term
``headquarters level'' would refer to the Major Command to which the
installation reports, while the term ``principal environmental policy
maker'' would refer to the Air Force Deputy Assistant Secretary for
Environment, Safety, and Occupational Health. These personnel would
meet with a similarly positioned person in the Federal or State agency
or American Indian tribe.
An additional level of dispute resolution is available to Federal
agencies: elevating the dispute to the Office of Management and Budget
(OMB). The dispute resolution process recognizes that regulatory
agencies dissatisfied with an outcome under the dispute resolution
process may elect to pursue resolution under other applicable laws such
as CERCLA or RCRA. Nothing in this rule is intended to preempt State
regulatory or enforcement powers or authority concerning hazardous
waste or
[[Page 50828]]
hazardous substances, nor is it intended to affect the waiver of
sovereign immunity by the United States contained in the Federal
Facility Compliance Act of 1992 or any other environmental law.
In recognition of their unique status, the dispute resolution
mechanism provided to American Indian tribes in the DoD range rule is
similar to that offered to the States. The final phase of the dispute
resolution process provides for resolution between the Secretary of the
Military Department, or his/her designee who must be a political
appointee whose appointment requires the advice and consent of the
Senate, and the American Indian tribal leader or his/her designee.
Because the title may vary among the various American Indian tribes,
the term ``tribal leader'' has been used to refer to the head of the
tribe. Thus the term American Indian tribal leader would refer to the
Governor, President, Chief Executive Officer, or other final decision-
maker for the American Indian tribe.
In addition to this first option for the final step in dispute
resolution for States and American Indian tribes, as presented in
Sec. 178.15(b)(5), the Department of Defense is considering a second
and third option. The second option is to provide the State governor or
the American Indian tribal leader with final decision-making authority
for issues under dispute. While the Department of Defense is
considering this option, it believes that there are significant legal
impediments. In the range rule, the Department of Defense voluntarily
acknowledges its obligations, independent of any other authorities that
might be available to State regulators or tribes, to address UXO and
other constituents from DoD activities on closed, transferred, and
transferring ranges. Because the Department of Defense is utilizing
statutory authorities for which it has responsibility and no authority
to delegate, it believes it should be the final decision-maker under
the DoD range rule. Since nothing in the range rule removes or limits
any authorities the States and tribes have, the Department of Defense
will have a strong incentive to ensure that any actions it takes under
the range rule will be fully satisfactory to States and tribes.
The Department of Defense is, however, seriously considering the
third option. Under this option, should the Secretary of the
responsible DoD component's military department and the State governor
or American Indian tribal leader be unable to resolve a dispute by
consensus, then the responsible DoD component would prepare a written
statement acknowledging the inability of the responsible DoD component
and the State or tribe to resolve the dispute and recognizing that the
responsible DoD component and the State or tribe may pursue their
authorities under any applicable law.
The Department of Defense believes that utilization of the
mechanisms in this proposed rule, in lieu of any other authorities that
might be applicable, would present substantial advantages for all
interested parties because environmental and safety risks will be
addressed more promptly and more comprehensively through this rule. As
made clear in the dispute resolution provision, if a State or Federal
agency or American Indian tribe is dissatisfied with the results of the
application of this rule, there is recourse outside the Department of
Defense; the State may choose to apply other legal authorities that
might be applicable, and the Federal agency may elevate the dispute to
OMB or choose to apply other applicable legal authorities.
CERCLA Section 120(e)(4) requires that the selection of a remedial
action be made by the head of the relevant department (i.e., the DoD
component) and the EPA Administrator, or, if unable to reach agreement
on the selection of a remedial action, by the EPA Administrator.
Section 178.15(b)(4) thus integrates this statutory authority into this
proposed rule to avoid duplicative procedures and unnecessary delays.
Section 178.15(b)(4) of this rule recognizes that there may be an
overlap between EPA's authority under CERCLA for the final selection of
a remedial action at an NPL site and the Department of Defense's
authority under 10 U.S.C. 172 and 2701 for explosives safety
19 and military munitions. Thus, consistent with Section 10
of E.O. 12580 on Superfund Implementation, the dispute can be raised to
OMB. While such a dispute theoretically is possible, the Department of
Defense is confident that the dispute resolution process contained in
this rule would result in the selection of a response that is fully
satisfactory to the EPA Administrator and to the Secretary of the
Military Department prior to the OMB stage.
---------------------------------------------------------------------------
\19\ The Department of Defense notes that, under isolated
circumstances, other constituents subject to CERCLA could be present
in concentrations that constitute an explosives safety hazard. In
such case, the Secretary of the Military Department would resolve
the explosives safety issues, and the EPA Administrator would
resolve the other issues related to the release of those other
constituents.
---------------------------------------------------------------------------
Range response activities will not be suspended during the dispute
resolution process absent extraordinary circumstances. If the secretary
of a Federal land manager, or his/her designee whose appointment
requires the advice and consent of the Senate, provides a written
declaration with supporting rationale to the Department Secretary for
the responsible DoD component, stating that an immediate suspension of
response activities during the full dispute resolution process is
needed to prevent substantial environmental harm that would result from
the performance of the activity itself, then the responsible DoD
component shall immediately suspend such activity, to the extent
consistent with the protection of human health from any imminent and
substantial danger. The suspension issue (i.e., whether to suspend
response actions during the full dispute resolution process) will be
raised directly to the Military Service Department Secretary, or his/
her designee whose appointment requires the advice and consent of the
Senate, consistent with Sec. 178.15(b)(4). The Secretary of the Federal
land manager and the Military Service Department Secretary will have 5
calendar days to arrive at a consensus on the suspension issue. If no
consensus is reached, then the Federal land manager will have 5
calendar days to raise the suspension issue to OMB and request OMB to
decide whether to continue the suspension of the response action. Five
days following the submission of the suspension issue to OMB, the
Military Service can resume activity unless OMB makes or has made a
determination that the response actions should not resume pending
resolution of the underlying dispute, or that an additional time period
is needed to consider the merits of the arguments over whether the
response action should be allowed to resume.
Because of the extensive involvement of the Federal land manager
throughout the range rule process, this mechanism should be rarely
used, and will typically be based on concerns over endangered species
or other issues involving statutory protections. This process is
intended as a true emergency measure to assure the Federal land manager
that it will be able to protect its lands from substantial
environmental damage while the merits of the dispute are fully aired.
Because the suspension of an action could result in substantial
contract costs to the government and delays in the mitigation of risks
to human health and the environment from UXO, the Federal land manager
should endeavor to raise its concerns over substantial environmental
effects of a proposed
[[Page 50829]]
response action at the earliest possible time.
One Federal commentor has suggested that the time limits of this
provision be changed from 5 days to 10 days. Additionally, a State
commentor has asked if States can suspend response actions during a
dispute. The Department of Defense seeks comments on both of these
issues.
11. Allocation of Operation and Maintenance Costs Between Federal
Agencies
The Department of Defense intends to enter into a memorandum of
understanding (MOU) with Federal land managers to establish the general
principle that the Department of Defense is responsible for the
incremental O&M costs attributable to military munitions (including UXO
and its associated constituents) employed by the Department of Defense
at ranges that are under the responsibility of another Federal land
manager and for which the Department of Defense would be responsible
under the proposed rule for the costs of the response, unless otherwise
specified by law. Such an MOU would be modified only by mutual
agreement of the parties. This MOU would establish a workgroup to
review quality controls and the consistency of decisions whether to
commence the RA/AR process at former ranges managed by a Federal land
manager. The MOU would incorporate the dispute resolution process for
allegations that the Department of Defense arbitrarily applied the
factors in Sec. 178.6(b) or relied upon inaccurate information.
The Department of Defense and the Federal land manager also would
enter into site-specific MOUs to establish the costs for which the
Department of Defense would be responsible at that range. The costs and
the requirements would be established for a range as part of the
response selection process called for under the rule, including the
selection of an AR.
12. Future Land Use Issues for Transfers Between Federal Agencies
The Department of Defense and the Federal land managers have agreed
to enter into a memorandum of agreement (MOA) to discuss future land
use issues. Section 178.16 of this proposed rule generally discusses
future land use issues at these Federal properties. The Department of
Defense has divided this issue into three topics: Transferring ranges,
transferred ranges, and responsibility for additional response actions.
For transferring ranges, the Department of Defense will conduct and
fund response activities consistent with all reasonably anticipated
future land uses that are identified and agreed to between the parties
to the land transfer prior to the transfer. Where the transfer of the
military range is mandated by statute, executive order, a previously
concluded agreement between the Department of Defense and the Federal
land manager, or under terms of a withdrawal, special-use permit or
authorization, right-of-way, public land order, or other instrument
issued by the Federal land manager, under which the Department of
Defense used the property, and where future land uses are not
identified or response activities are not specified in such statute,
order, agreement, or instrument, any dispute will be resolved through
utilization of the dispute resolution procedure identified in the range
rule. Where the transfer is not legally mandated, disagreement over
what the reasonably anticipated future land uses are may result in the
transfer of the property to some other party, or no transfer.
Technology limitations may restrict current uses or cleanup of the
property. Reasonably anticipated future land uses for the property will
not necessarily be limited by current technological limitations on the
cleanup of UXO on ranges.
For transferred ranges, in the absence of a prior agreement
identifying reasonably anticipated future land uses or imposing land
use restrictions, the Department of Defense will conduct and fund
response activities consistent with all reasonably anticipated future
land uses at the time of the range response. Reasonably anticipated
future land uses will be decided by the Federal land manager with the
concurrence of the Department of Defense. If there is disagreement, the
dispute resolution procedure identified in the range rule will be
utilized. Technology limitations may restrict current uses or cleanup
of the property. Reasonably anticipated future land uses for the
property will not necessarily be limited by current technological
limitations on the cleanup of UXO on ranges.
Section 178.16 also lists a number of specific circumstances where
the Department of Defense will conduct and fund additional response
actions at these Federal properties (for example, when the remedy fails
or additional UXO is found that creates conditions inconsistent with
the established reasonably anticipated land use, the Department of
Defense will conduct and fund additional response actions at these
Federal properties to achieve consistency with the established
reasonably anticipated land use). The Department of Defense seeks
comments on the applicability of these future land use concepts to
parties other than Federal land managers.
The MOA will also discuss responsibilities for additional response
actions should a response previously implemented under the range rule
later conflict with a Federal land manager's trust obligations or
statutory management responsibilities. Where the Federal land manager
makes a determination that the level of response previously implemented
pursuant to the range rule is inconsistent with the Federal land
manager's trust obligations or statutory responsibilities for
management and stewardship of the land and natural resources for the
United States and the public, the Federal land manager shall identify
to the Department of Defense what further response action is necessary
to meet those obligations or responsibilities and shall identify how
the OMB decisional factors described in this paragraph are implicated
by the proposed additional response action. If the Department of
Defense elects not to fund or perform the additional response action so
identified, the Federal land manager may invoke the dispute resolution
procedure in the range rule. If such a dispute arises, EPA shall be
provided notice and an opportunity to participate in discussions with
OMB. When OMB resolves a dispute as to whether the Department of
Defense or the Federal land manager should fund or perform additional
response action identified by a Federal land manager pursuant to this
section, OMB shall consider and balance:
(1) The importance of the proposed additional response action in
meeting the Federal land manager's obligations or responsibilities.
(2) Any reasonable alternatives by which the Federal land manager
could satisfy its obligations and responsibilities, including
alternatives that utilize innovative technology or that require no
additional response action.
(3) The cost and cost-effectiveness of the proposed additional
response action in comparison to the other reasonable alternatives.
(4) The cost of the cleanup to the Federal government as a whole.
(5) The availability or expected availability of appropriated funds
at each of the respective agencies to fund or perform the proposed
additional response action.
The Department of Defense and the Federal land managers have agreed
to include the language of the MOA concerning future land use in the
site-
[[Page 50830]]
specific agreements under which land is to be transferred from the
Department of Defense to a Federal land manager. The Department of
Defense seeks comments on the applicability of these future land use
concepts to parties other than Federal land managers.
V. Discussion of Other Major Alternatives
A. General
In proposing this rule, the Department of Defense is considering
several alternatives to address military munitions on closed,
transferred, or transferring ranges. In assessing each of these
alternatives, the Department of Defense has sought to identify the
relative merits of each statutorily based process in meeting the goals
of establishing a single, logical, and comprehensive process that
addresses explosives safety, human health, and environmental concerns.
In the Department of Defense's view, a single, specific process is
necessary to avoid confusion and to ensure that effective response
activities are undertaken in a fiscally responsible manner. That
process must recognize and consider the unique explosives safety
hazards associated with military munitions, and concomitantly with any
response activity conducted on closed, transferred, or transferring
ranges. The process must ensure that the public and regulators are
fully informed and engaged at every stage of the process, including
substantial and meaningful public and regulator participation in the
response selection and implementation. The process must be accessible,
consistent, and lead to informed decision-making. As noted elsewhere in
this rulemaking, the Department of Defense's response activities, both
on-and off-range, have been variously subject to rules implemented
under DERP, CERCLA, RCRA, or a combination. With respect to military
munitions, DDESB exercises independent statutory authority over
explosives safety. As such, the Department of Defense has identified
and continues to consider several alternatives based on each of these
statutory authorities.
B. Comprehensive Environmental Response, Compensation, and Liability
Act
The Department of Defense also is considering the adequacy of
CERCLA to address military munitions on closed, transferred, or
transferring ranges. As specified in CERCLA Section 104, CERCLA is
triggered by the ``release or substantial threat of a release into the
environment'' of a ``hazardous substance'' or of a ``pollutant or
contaminant which may present an imminent and substantial danger to the
public health or welfare.'' Neither military munitions nor UXO are, as
a class, designated as CERCLA hazardous substances. However, the
Department of Defense is considering whether UXO should, as a class, be
recognized for purposes of this rule as CERCLA pollutants or
contaminants. A CERCLA pollutant or contaminant triggers a CERCLA
response if an imminent and substantial endangerment to the public
health or welfare exists.
The procedural and technical standards for conducting CERCLA
response activities are codified at 40 CFR 300, National Oil and
Hazardous Substances Pollution Contingency Plan (55 FR 8666, March 8,
1990). The NCP establishes five steps to respond to releases or
potential releases of hazardous substances: (1) Identifying releases;
(2) conducting a removal action if warranted; (3) conducting a site
assessment, and, if warranted, listing the site on the NPL; (4)
performing a remedial investigation/feasibility study (RI/FS); and (5)
implementing the remedy through remedial design/remedial action (RD/
RA).
The first step, release identification, occurs through various
means, including: reports of releases; investigations by Federal,
State, or local government agencies; land inventories or surveys; or
incidental discoveries. All sites where a release is identified should
be reported to the National Response Center and/or EPA, and all Federal
sites should be listed on the Federal agency hazardous waste compliance
docket.
The second step in the CERCLA response process is conducting a
removal action, as appropriate. This is not to say that removal actions
cannot be undertaken at other points in the process; they can be
conducted at any time during a CERCLA response. Removals, as described
in 40 CFR 300.415, are actions taken to mitigate immediate threats to
human health and the environment. There are three types of removals:
(1) Emergency removals where action is required within hours or days;
(2) time-critical removals where up to 6 months can elapse before
action is necessary; and (3) non-time-critical removals, where more
than 6 months can elapse before action is taken. A non-time-critical
removal requires the development of an engineering evaluation/cost
analysis, as well as more significant public outreach than is required
for an emergency or time-critical removal. Removal actions are
undertaken at the discretion of the lead agency, and should, to the
maximum extent practicable, contribute to the overall remediation of
the site. The decision to move from a removal action to a remedial
action is also at the discretion of the lead agency (40 CFR
300.415(f)). All removal actions require the development of an action
memorandum that describes the action taken and the rationale for that
action.
Site assessment, the third step in the CERCLA process, has several
stages and is outlined in the NCP at 40 CFR 300.420. First, the lead
agency conducts a preliminary assessment (PA), which is a ``desktop''
review of available information about the site and involves the
collection of demographic information and information about the
environmental setting of the site. Sites not posing a sufficient threat
to human health or the environment to warrant a CERCLA response are
screened out. The second stage, site inspection (SI), may be required
to further evaluate site conditions. The SI is a more detailed
investigation of site conditions, usually involving sampling of
environmental media. Information from the PA and SI is the basis for
the third stage, scoring the site using the hazard ranking system
(HRS). The HRS is a model for assessing the site's relative threat to
human health and the environment. If a site scores at or above 28.5, it
may be placed on the NPL, and an RI/FS will be required.
The fourth phase of the CERCLA remedial process is the RI/FS (40
CFR 300.430). The RI/FS characterizes the site and evaluates various
alternatives for remediation of the site. Unlike the SI, the RI
involves the collection of sufficiently detailed information to fully
characterize site conditions, determine the nature and extent of the
contamination, evaluate risks posed by the site, and assess the
performance of options for remediation. The FS involves development,
screening, and detailed evaluation of each remedial option. Each
alternative is evaluated against the following nine criteria:
(1) Overall protection of human health and the environment
(including explosives safety and natural resources).
(2) Compliance with ARARs.
(3) Long-term effectiveness and permanence of the remedy.
(4) Reduction of the toxicity, mobility, quantity, or volume of the
contaminants present at the site.
(5) Short-term effectiveness of the remedy.
(6) Implementability of the remedy.
(7) Cost of the remedy.
(8) Federal and State acceptance of the selected alternative.
[[Page 50831]]
(9) Community (including current property owner) acceptance of the
selected alternative.
The RI/FS phase leads to the selection of the remedial option, the
development of a proposed plan, and the signing of a record of decision
(ROD). Once the ROD is signed, the RI/FS phase is complete.
The fifth step of the CERCLA process, outlined under 40 CFR
300.435, is the RD/RA, where the selected remedy is actually
implemented. The RD involves all aspects of designing the remedial
action, including development of technical drawings, specifications,
operational guidance, and training. The RA involves the actual
construction, operation, and monitoring of the remedial action selected
to clean up the contamination at the site. Depending upon site
conditions, an RA may continue for many years. Upon completion of the
RA and demonstration that the site has been remediated to the required
levels, the site is deleted from the NPL.
The Department of Defense recognizes the fact that the NCP and E.O.
12580, which implement CERCLA, identify the Department of Defense as
the lead agency with respect to releases from its facilities, including
those involving military munitions. Thus, while the CERCLA process
provides a potentially viable alternative to the proposed rule, the
Department of Defense has identified some initial concerns. For
example, confusion exists as to the extent of EPA's response authority
and the application of State ARARs. While E.O. 12580 delegates to the
Department of Defense the authority to conduct these response
activities, the Department of Defense is not often directly involved in
the national priority listing of these response activities.
The Department of Defense recognizes that CERCLA is a possible and
existing alternative to the range rule. The Department of Defense has
closely modeled the range rule on the CERCLA process and utilizes
CERCLA and DERP, an amendment to CERCLA, as authorities for
promulgation of the range rule. However, the range rule has advantages
over CERCLA. The range rule focuses exclusively on range issues, unlike
CERCLA, and will provide for a consistent response by the Military
Services. The range rule is not limited to those materials addressed
under CERCLA. Additionally, the range rule will require the Department
of Defense to respond to former ranges without a State forcing action
under CERCLA or other State authorities.
C. Defense Environmental Restoration Program
DERP was established in 1986 by Section 211 of SARA. DERP is
codified at 10 U.S.C. 2701, et seq. and establishes the Department of
Defense's responsibility and authority to address UXO (which is a
subset of military munitions), as well as hazardous substances,
pollutants, and contaminants on DoD property. Likewise, DERP
establishes funding authority for these response activities. For
example, in 1996, Congress appropriated more than $1.4 billion for the
Department of Defense's response activities. DERP, therefore, ensures
that the obligation to undertake response activities is directly linked
with the Department of Defense's authority to undertake these response
activities and its authority to fund them. This approach under DERP is
not inconsistent with existing statutory, regulatory, and policy
pronouncements in CERCLA, the NCP, and E.O. 12580.
The NCP and E.O. 12580 identify the Department of Defense as the
lead agency under CERCLA for releases or threatened releases of
hazardous substances, pollutants, and contaminants from the Department
of Defense's facilities. Consistent with this designation, the
Department of Defense has conducted removal or remedial responses at
its NPL and non-NPL sites in accordance with the processes set forth in
CERCLA and the NCP.
Less clear, however, is the role of explosives safety under DERP.
The Department of Defense believes that explosives safety is
inextricably linked to any response activity that is undertaken on a
military range. Thus, consistent with its statutory mandate under 10
U.S.C. 172, the Department of Defense is proposing to incorporate into
this process the additional consideration of explosives safety when
addressing military munitions and other constituents on closed,
transferred, or transferring ranges. In doing so, the Department of
Defense believes that response activities on military ranges will be
expedited and will more fully address human health and environmental
issues in the practical context of explosives safety.
D. Resource Conservation and Recovery Act
In its proposed military munitions rule (60 FR 56476, November 8,
1995), EPA proposed 40 CFR 261.2(g)(4)(i), which would have identified
military munitions on closed and transferred ranges as a statutory
solid waste. EPA proposed allowing the Department of Defense's range
rule to supersede this provision as long as the range rule was
protective of human health and the environment and allowed for public
involvement in addressing the cleanup of closed and transferred ranges.
In its final military munitions rule (62 FR 6622, February 12, 1997),
however, EPA decided to postpone action on this section of the proposed
munitions rule to conduct further analyses of comments and to evaluate
the Department of Defense's range rule. In the final military munitions
rule, EPA indicated that it is prepared to address this issue under
Federal environmental laws if the Department of Defense does not
promulgate the range rule or if EPA finds that the range rule does not
adequately protect human health and the environment.
While the Department of Defense recognizes the RCRA corrective
action process as an available alternative to the proposed rule, the
Department of Defense has identified several initial concerns that may
weigh against use of this alternative. First, the question of whether
military munitions that have been used for their intended purpose and
that remain on a closed, transferred, or transferring military range
are a solid waste has generated much discussion. See Barcelo v. Brown,
478 F Supp. 646, 668-669 (D. Puerto Rico 1979) \20\ and Connecticut
Coastal Fishermen's Assoc. v. Remington Arms Co., 989 F.2d 1305 (2d.
Cir. 1993). \21\ Also, the use of munitions has not been characterized
as disposal because the ordinary use of munitions includes placement on
the land.
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\20\ Copies of this case may be obtained by visiting the DoD
range rule administrative record at 910 Clopper Road, Gaithersburg,
MD 20878-1399 (telephone 301-258-8753).
\21\ Copies of this case may be obtained by visiting the DoD
range rule administrative record at 910 Clopper Road, Gaitherburg,
MD 20878-1399 (telephone 301-258-8753).
---------------------------------------------------------------------------
In the proposed Military Munitions Rule, EPA concluded that ``the
legal arguments supporting the characterization of munitions on closed
or transferred ranges as ``solid waste,'' and the legal arguments
opposing such a characterization are finely balanced, with the result
that EPA has the discretion to select either interpretation pursuant to
[RCRA] Section 3004(y).'' EPA did not repeat or reject this discussion
in the Final Rule.
Second, the applicability of RCRA's remedial authorities (i.e.,
Sections 3004 (u) and (v) or Section 3008(h)) requires that a range be
collocated at a RCRA-permitted or interim status facility. Some closed,
transferred, or transferring ranges may not be located at RCRA-
[[Page 50832]]
permitted facilities or facilities with interim status, thereby
falling outside the scope of RCRA's authorities. The Range Rule would,
in contrast, apply to all closed, transferred, or transferring ranges,
and would impose a uniform set of requirements and procedures
regardless of whether or not the range is at a site subject to RCRA.
Last, as with CERCLA, the Department of Defense is concerned that
the RCRA corrective action process, as outlined in the 1990 proposed
rule concerning solid waste, does not address explosives safety issues.
As noted elsewhere in this proposed rule, explosives safety risks must
be minimized during all phases of a response activity involving
military munitions.
E. DoD Explosives Safety Standards Promulgated Pursuant to 10 U.S.C.
172
Pursuant to 10 U.S.C. 172, Congress established the DDESB, an
independent entity whose charter involves determining appropriate
safety standards for dealing with military munitions. While the
Department of Defense believes that such standards are of paramount
importance in any activity involving military munitions, it recognizes
that in the environmental context, other factors must be considered.
The DDESB process for addressing military munitions is set forth in
Chapter 12 of DoD 6055.9-STD.\22\ Specifically, the process requires
that a site-specific evaluation of the explosives safety hazards and an
explosives safety plan be developed and submitted to DDESB prior to the
undertaking of any response action. In the event that a site-specific
evaluation is impracticable, the DDESB process provides for the use of
default criteria in addressing the explosive hazards present or
suspected. In both instances, the response undertaken is not
inconsistent with the anticipated use of the property. Absent from this
evaluation and determination is a consideration of the chronic effects
of other constituents on the environment.
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\22\ See footnote 13 in Section IV.F.1.a. for information on
obtaining DoD issuances.
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Application of DDESB standards in response activities would differ
from the proposed rule, as the DDESB standards focus primarily on
concern for explosives safety. The proposed rule accounts for
explosives safety concerns, while also addressing the effects of other
constituents on human health and the environment.
F. Status Quo
As noted in the foregoing discussion of alternatives, the current
applicability of all of the foregoing laws and regulations and the lack
of any clear direction to the Department of Defense on the appropriate
process for addressing military munitions responses is confusing,
inefficient, costly, and time-consuming, and may be ineffective. This
confusion contributes to public and regulator concern that military
munitions are not being addressed adequately. The Department of Defense
is committed to sound environmental stewardship in all of its
activities. This commitment includes addressing the safety, human
health, and environmental effects of military munitions on closed,
transferred, and transferring ranges.
In recent years, Congress and the public have demanded that the
Department of Defense make available for public use lands that are no
longer needed to perform the military's mission. In light of the
Department of Defense's downsizing efforts, the BRAC process, and
increasing fiscal constraints, more land is being identified for
transfer. These transfers are subject to a plethora of environmental
laws and regulations, which often involve different, and sometimes
inconsistent, processes and decision-makers. To date, the public and
regulators have relied on RCRA and CERCLA as the primary environmental
laws governing DoD response activities. Additionally, the Department of
Defense's response to military munitions is subject to DERP and DDESB
criteria. The Department of Defense views this confusion as an
impediment to effective, timely, and fiscally responsible responses to
military munitions on closed, transferred, and transferring ranges.
This rulemaking will identify a single, specific process by which the
Department of Defense will execute its responsibilities, while
providing for meaningful public and regulator participation throughout
all phases of the process.
VI. Administrative Requirements
A. Regulatory Impact Analysis
Under E.O. 12866 (59 FR 51735 (October 4, 1993)), the Department of
Defense must determine whether this regulatory action is
``significant'' and therefore subject to review by OMB and to the
requirements of this E.O., which include assessing the costs and
benefits anticipated as a result of the proposed regulatory action. The
E.O. 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 may 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
this E.O.
The Department of Defense recognizes that E.O. 12866 contains an
exemption for ``military functions''; however, the Department of
Defense has decided to prepare a cost/benefit analysis due to the novel
legal and policy issues raised by this proposal. The Department of
Defense estimates that this proposed rule would result in national
incremental costs of $709,000,000, or $47 to $71 million per year over
a 10- to 15-year period. This represents a savings from costs that
would be anticipated under a RCRA program of $12,984,000,000, or $865
to $1,300 million per year over a 10- to 15-year period. For more
information on the cost impacts of this proposed rule and of some
alternative approaches, see the Department of Defense (DoD) Final
Report: Range Rule Regulatory Impact Analysis, July 3, 1996, in the
range rule docket.
1. Cost Analysis
Implementing this proposed rule equates to national incremental
costs of $709,000,000. These costs are less than those of other
alternatives; for example, a RCRA program that is anticipated to cost
$12,984,000,000.
2. Benefits Analysis
Benefits include increased protection of the public, increased
protection of UXO response workers, a consistent process, increased
public involvement in responses, a substantial role for regulatory
agencies and for American Indian tribes, and a substantial role for
Federal land managers. Implementing a comprehensive approach to respond
to closed, transferred, and transferring ranges while ensuring public
safety, worker safety, and protection of human health and the
environment is essential and would be a beneficial outcome of this
proposed rule.
[[Page 50833]]
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601, et seq.,
requires Federal agencies to consider ``small entities'' throughout the
regulatory process. Section 603 of the Regulatory Flexibility Act
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 Regulatory Flexibility Act are only those ``business,
organizations and governmental jurisdictions subject to regulation.''
The Department of Defense has determined that this proposal will
primarily affect the Department and that few, if any, small entities
will be affected.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3501, authorizes the
Director of OMB to review certain information collection requests by
Federal agencies. The recordkeeping and reporting requirements of this
proposed rule do not constitute a ``collection of information'' as
defined in 44 U.S.C. 3502(3) of the Paperwork Reduction Act of 1995.
D. Environmental Justice
On February 11, 1994, President Clinton issued E.O. 12898, Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations. This E.O. requires Federal agencies to identify
and address disproportionately high and adverse human health and
environmental effects of Federal programs, policies, and activities on
minority and low-income populations.
This rulemaking effort will incorporate environmental justice
concerns in promoting partnerships with all the public and government
agencies and will carefully consider where and how any public
availability sessions will be offered. The Department of Defense is
soliciting comment and input from all public entities and government
agencies, including members of the environmental justice community and
members of the regulated community.
This proposed rule is intended to reduce risks from military
munitions. The rule involves not one site, but will affect property
nationwide. Because of the locations of some of this property, in the
implementation of the rule the potential exists for impacts to minority
or low-income communities. The rule itself, however, is not expected to
cause any disproportionate impacts to minority or low-income
communities versus affluent or nonminority communities.
E. Unfunded Mandates
Title II of the Unfunded Mandates Report Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
Department of Defense 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.
The Department of Defense 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. Thus, this proposed
rule is not subject to the requirements of Section 202 of the UMRA.
VII. References/Docket
The regulatory docket for this proposed rule contains a number of
background materials. To obtain a list of these background materials,
contact the toll-free DoD range rule information request line at (888)
541-1081 (voice), (800) 870-6547 (fax), or (800) 870-6557 for the
hearing-impaired.
Accordingly, 32 CFR part 178 is proposed to be added to read as
follows:
PART 178--CLOSED, TRANSFERRED, AND TRANSFERRING RANGES CONTAINING
MILITARY MUNITIONS
Sec.
178.1 Purpose and objectives.
178.2 Scope.
178.3 Applicability.
178.4 Definitions.
178.5 Responsibilities.
178.6 Identification of closed, transferred, and transferring
ranges.
178.7 Range assessment/accelerated response.
178.8 Range evaluation.
178.9 Site-specific response evaluation.
178.10 Site-specific response implementation.
178.11 Recurring reviews.
178.12 Ending the range response process.
178.13 Information repository and the administrative record.
178.14 Participation of and concurrence role for Federal and State
regulatory agencies, American Indian tribes, and Federal land
managers.
178.15 Dispute resolution.
178.16 Future land use for transfers within the Federal government.
Authority: 10 U.S.C. 2701 et seq.; 10 U.S.C. 172; 42 U.S.C.
9601, et seq.; and E.O. 12580, 3 CFR, 1987 Comp., p. 193.
Sec. 178.1 Purpose and objectives.
(a) This part establishes the procedures for evaluating and
responding to explosives safety, human health, and environmental risks
on closed, transferred, and transferring military ranges and for
providing opportunities for full and active participation by Federal,
State, and local agencies; American Indian tribes; and the public in
the evaluation and responses conducted at those military ranges.
(b) This part implements the authorities and responsibilities of
the Department of Defense (DoD) under 10 U.S.C. 2701 et seq., the
Defense Environmental Restoration Program; 10 U.S.C. 172, Ammunition
Storage Board; 42 U.S.C. 9601 et seq., the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended; and
Executive Order 12580, Superfund Implementation, 59 FR 2923 (January
23, 1987), 3 CFR, 1987 Comp., p. 193, as amended. When appropriate, it
may also be used in conjunction with other authorities governing
effects to land or water.
Sec. 178.2 Scope.
(a) This part applies to closed, transferred, and transferring
military ranges located in the United States, Puerto Rico, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and
the Virgin Islands, and which are or were owned by, leased to, or
otherwise possessed or used by the United States where military
munitions have been used in training or research, development, testing,
and evaluation (RDT&E) by the Department of Defense or an agent of the
Department of Defense in furtherance of the national defense or
security.
(b) This part does not apply to:
(1) Active and inactive ranges.
(2) Any closed, transferred, or transferring range that, upon [the
effective date of the final rule], was identified and included in an
interagency agreement for a National Priorities List (NPL) site, or
which is subject to response activities pursuant to any specific
statutory authority or pursuant to any agreement that addresses
military ranges that has taken
[[Page 50834]]
effect prior to [the effective date of the final rule]. Should,
however, any aspects of this part be useful in making a given response
more efficient, effective, or protective, then nothing in this part
shall prohibit their application upon mutual consent of the parties. In
cases where unexploded ordnance (UXO) investigations or response
actions are underway on closed, transferred, or transferring ranges at
the time of [the effective date of the final rule], this part, this
part will not apply unless mutually agreed to by the parties to the
interagency or Federal facility agreement.
(3) Airspace designated as a military operation area or military
training route (MTR), or their underlying water or land areas where
military munitions have not been used.
(4) Properties that are historic battlefields.
(5) Sites where military munitions or explosives are destroyed as
part of a munitions or explosives emergency response as defined under
40 CFR 260.10 and subject to the provisions of 40 CFR 261 through 272
(inclusive).
(6) Ranges located outside the United States, Puerto Rico, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and
the Virgin Islands.
Sec. 178.3 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including the Coast Guard when it is operating as
a Military Service in the Department of the Navy), the Chairman of the
Joint Chiefs of Staff, the Unified Combatant Commands, the Defense
Agencies, the DoD Field Activities, and the National Guard Bureau (NGB)
(hereafter referred to collectively as ``DoD components''). For
purposes of this part, the Department of War and the Department of the
Navy as they existed prior to the creation of the Department of Defense
are also considered DoD components.
Sec. 178.4 Definitions.
When used in this part, the following terms have the meanings given
as shown:
(a) Accelerated responses (ARs). Any readily available, generally
used, reliable, and easily implemented methods of addressing the risk
posed by military munitions, unexploded ordnance, or other constituents
at military ranges. ARs may be fully protective in and of themselves.
(b) Active range. A military range that is currently in service and
is being regularly used for range activities.
(c) American Indian tribe. For purposes of this part, the term
American Indian tribe means Native American tribes and Native Alaskan
villages that:
(1) Are federally recognized as an Indian tribe or a Native Alaskan
village by the Secretary of the Department of Interior, in accordance
with 26 CFR 83.5;
(2) Have a tribal governing body that is currently performing
governmental functions to promote the health, safety, and welfare of
the affected population or to protect the environment within a defined
geographical area, and;
(3) Are the property owner, as defined in paragraph (l) of this
section, of any portion of a closed, transferred, or transferring range
at which a response is ongoing or contemplated.
(d) Closed range. A military range that has been taken out of
service as a range and that either has been put to new uses that are
incompatible with range activities or is not considered by the military
to be a potential range area. A closed range is still under the control
of a DoD component.
(e) Federal land manager. Federal agencies having or clearly
anticipated to receive jurisdiction, custody, or control over the
property.
(f) Inactive range. A military range that is not currently being
used, but that is still under military control and is 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.
(g) Military munitions. All ammunition products and components
produced or used by or for the U.S. Department of Defense or the U.S.
Armed Services for national defense and security, including military
munitions under the control of the Department of Defense, the U.S.
Coast Guard, the U.S. Department of Energy (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 nonnuclear 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.
(h) Military range. A designated land or water area 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. The definition of a military range does
not include airspace, or water, or land areas underlying airspace used
for training, testing, or research and development where military
munitions have not been used.
(i) Operation and maintenance (O&M). O&M means measures that are
required to maintain the effectiveness of response actions. O&M
measures are initiated after the response action has achieved the goal
in the decision document and is determined to be ``fully operational.''
(j) Other constituents. Other constituents are potentially
hazardous chemicals that are located on or originate from closed,
transferred, or transferring ranges and are released from military
munitions or UXO, or resulted from other activities on military ranges.
Other Constituents may be subject to other statutory authorities,
including, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601, et
seq.) and the Resource Conservation and Recovery Act (RCRA) (42 U.S.C.
6901, et seq.).
(k) Project team. The responsible DoD component, its designated
representatives, any Federal land manager with jurisdiction, custody,
or control for all or part of the range, and its designated
representatives. The designated representatives provide the working-
level direction for scoping the response action, preparing planning
documents, conducting investigations and studies, and preparing
reports.
(l) Property owner. A non-Federal entity that owns a piece of
property, or a Native American tribe or Native Alaskan village that
owns a piece of property or land, held in trust by the United States
for that tribe or village or its individual tribal or village members,
that is a closed, transferred, or transferring military range.
(m) Transferred range. A military range that is no longer under
military
[[Page 50835]]
control and has been leased, transferred, or returned to another
entity, including Federal entities. This includes a military range that
is no longer under military control but was used under the terms of a
withdrawal, executive order, special-use permit or authorization,
right-of-way, public land order, or other instrument issued by the
Federal land manager.
(n) Transferring range. A military range that is proposed to be
leased, transferred, or returned from the Department of Defense to
another entity, including Federal entities. This includes a military
range that is used under the terms of a withdrawal, executive order,
special-use permit or authorization, right-of-way, public land order,
or other instrument issued by the Federal land manager. An active range
will not be considered a ``transferring range'' until the transfer is
imminent.
(o) Unexploded ordnance. Military munitions that have been primed,
fuzed, 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.
Sec. 178.5 Responsibilities.
(a) The DoD component responsible for the military munitions or
other constituents present at a closed, transferred, or transferring
military range, or another DoD component designated by the Secretary of
Defense shall exercise the responsibilities set forth in this part.
This entity shall be referred to in this part as the ``responsible DoD
component'' or the ``DoD component responsible for'' a range.
(b) In the case of closed, transferred, or transferring ranges that
are owned, leased, or otherwise possessed by a State National Guard and
are covered by this part, the NGB shall be the responsible DoD
component.
(c) If the closed, transferred, or transferring military range
includes property under the jurisdiction, custody, or control of a
Federal land manager, the responsible DoD component must establish a
project team that will include the Federal land manager. The project
team will exercise the responsibilities of the responsible DoD
component in the working-level development and management of the range
response process at that range. Where a Federal agency has been
proposed to receive jurisdiction, custody, or control of a former range
but the agency is not yet a Federal land manager as defined in this
part, the agency may sit on the project team for informational purposes
only.
(d) The Department of Defense recognizes that other Federal
agencies listed in 40 CFR 300.175 have duties established by statute,
executive order, or presidential directive that may apply to or be
impacted by response actions conducted under the regulations set forth
in this part. These agencies may be called upon by the responsible DoD
component or other Federal agency during response planning and
implementation to provide assistance in their respective areas of
authority or expertise, as described in 40 CFR 300.175, consistent with
the agencies' capabilities and authorities.
Sec. 178.6 Identification of closed, transferred, and transferring
ranges.
(a) Within 18 months of [the effective date of the final rule],
each DoD component shall develop a list of all known closed,
transferred, and transferring ranges subject to this part and
controlled at any time by that DoD component, and shall submit that
list to a DoD component designated by the Secretary of Defense for use
in developing the central inventory database.
(1) The information for each military range in the inventory
database shall include, at a minimum:
(i) A unique identifier for the range.
(ii) The current status of the range (i.e., closed, transferred,
transferring).
(iii) The name, address, and telephone number of a point of contact
at the responsible DoD component.
(iv) An appropriate record showing the location, boundaries, and
areal extent of the range including all counties, independent cities
and towns in which the range is located, as well as all states in which
that range is located.
(v) Known entities, other than a DoD component, with current
ownership interest or control of the land or its resources.
(vi) Any deed restrictions currently in place that might affect the
potential for exposure to military munitions, UXO, or other
constituents present at the range.
(2) The inventory database shall be updated on a periodic basis (at
least annually) to reflect new information that has become available.
(b) Each military range included in the inventory database will be
assigned a relative priority for range assessment/accelerated response
(RA/AR) activities based on the overall conditions at the range. When
assigned, this priority will be included in the record for each
military range in the inventory database. The Department of Defense
will consider factors relating to safety and environmental hazard
potential, such as:
(1) Whether access to a site can be controlled, and the population
is potentially at risk.
(2) The potential for direct human contact and evidence of people
entering into the range area.
(3) Whether a response action has been or is being taken at that
range under the Formerly Used Defense Sites (FUDS) program or other
environmental restoration programs.
(4) Planned or mandated dates for transfer of the range from DoD
control.
(5) Documented incidents involving UXO or off-range releases of
other constituents from the range.
(6) The potential for drinking water contamination.
(7) The potential for destruction of sensitive ecosystems.
(8) The potential for damages to natural resources.
(9) The potential for releases to the air.
(10) The degree of public interest in the range.
(11) The degree of Federal land manager interest in the range.
(12) The degree of State or Federal regulator or American Indian
tribal interest in the range.
(c) This paragraph describes Federal, State, and local government;
American Indian tribe; and public involvement with the inventory
database.
(1) Upon the designation of the responsible DoD component, that DoD
component shall work with the community to provide information
concerning conditions at the range, response activities, and shall
respond to inquiries. The responsible DoD component shall notify, at a
minimum, immediately affected individuals; State, local, and tribal
officials; and, when appropriate, civil defense or emergency management
agencies.
(2) Federal, State, and local officials; members of Native American
tribes and Native Alaskan villages; and the public possessing detailed
information on areas believed to be military ranges are encouraged to
submit that information in writing to the Office of the Deputy Under
Secretary of Defense (Environmental Security, 3000 Defense Pentagon,
Washington, DC 20301-3000). If, based on the Department of Defense's
evaluation of that information, the area is identified as a military
range subject to this part, it will be included in the inventory
database.
Sec. 178.7 Range assessment/accelerated response.
(a) Purpose. The purpose of the RA/AR is to promptly identify and
respond
[[Page 50836]]
to risks posed by military munitions, UXO, and other constituents at
military ranges subject to this part and to distinguish between
military ranges posing little or no explosives safety, human health, or
environmental risk and military ranges that pose a greater risk. The
RA/AR shall use readily available information or limited data
collection efforts to determine if additional investigation is
required, or if implementation of an AR is warranted.
(b) Range assessment. As used in this part, the range assessment:
(1) Is a limited-scope investigation designed to assess the risk
posed by any military munitions, UXO, or other constituents found at
the range.
(2) Shall, to the extent feasible, rely on available information
gathered through a combination of file searches and desktop information
collection and analysis. If warranted, additional data may be collected
by such methods as visual inspection of the range or focused sampling
of environmental media in an effort to develop an improved
understanding of the conditions at the range. Such on-range activities
require development of a work plan describing the objectives and plan
for conducting any such activities.
(i) Prior to any activities that require entry onto the range, an
explosives safety plan must be approved by the DoD Explosives Safety
Board (DDESB) or other explosives safety organization designated by
DDESB. The work plan implemented by the responsible DoD component must
provide for an appropriate balance between the risks to the safety of
the investigators and the risk to the community and environment. The
draft work plan will be coordinated with and comment sought from the
appropriate Federal, State, and local governments and American Indian
tribe. The final work plan will be subject to regulatory concurrence.
(ii) Proposed decisions that recommend limiting the entry into
specific areas of the range based on munitions safety hazards will be
provided to stakeholders, together with a description of the criteria
and rationale used to develop such recommendations. In response to such
a proposed decision, the responsible DoD component must:
(A) Seek reversal or modifications of the proposed decision, or
(B) Develop an alternative explosives safety plan that meets the
conditions of the proposed or modified decision.
(iii) Prior to entry onto a transferred range, written permission
must be obtained from the current Federal land manager or property
owner.
(3) Shall initiate range delineation procedures that will
adequately define discrete areas within a range that pose varying
explosives safety hazards and environmental risks.
(4) Should include collection of the following information:
(i) Information about the types, quantities, constituents, and
other factors related to the military munitions employed on the range.
(ii) Information on previous range clearance operations or reported
incidents involving military munitions or UXO on the range.
(iii) Safety issues related to use of military munitions on the
range.
(iv) The identity, concentration, and human health or environmental
effects of other constituents known or believed to be present on the
range.
(v) The type(s) of any targets that may have been used on the
range.
(vi) Other past and present uses of the range.
(vii) Any prior agreements identifying reasonably anticipated
future land uses or imposing land use restrictions, and, in the absence
of these, current and reasonably anticipated future land uses. (viii)
The environmental setting of the range, including:
(A) The location and identity of receptors (e.g., human, threatened
and endangered species) potentially impacted by the range.
(B) Specific exposure routes of concern.
(C) Local hydrologic and hydrogeologic conditions (which include
groundwater).
(D) Soils and geology.
(E) Terrain.
(F) Climate.
(G) Biological resources.
(H) Cultural resources.
(c) Accelerated response. (1) Examples of ARs include, but are not
limited to:
(i) Conducting source removals or surface sweeps for UXO.
(ii) Posting signs warning of the dangers associated with the
range.
(iii) Erecting fences or other similar physical means to control
access.
(iv) Implementing erosion controls (e.g., silt fences).
(v) Suspending incompatible land uses (where DoD has the ability to
do so).
(vi) Implementing community education and awareness programs.
(vii) Implementing a monitoring program.
(viii) Other appropriate engineering, institutional, or exposure
controls.
(2) Selection of an AR. AR alternatives shall be evaluated using
qualitative (or if available, quantitative) information to assess how
the AR would address the following nine criteria, which shall have the
same meanings as set forth in the National Contingency Plan (NCP):
(i) Overall protection of human health and the environment
(including explosives safety and natural resources).
(A) All AR alternatives must minimize explosives safety risks.
(B) If the AR requires entry onto the range, an explosives safety
plan must be approved by DDESB or other explosives safety organization
designated by DDESB.
(ii) Compliance with applicable or relevant and appropriate
requirements (ARARs) established under Federal and State law, to the
extent practicable given the exigencies of the situation.
(iii) Long-term effectiveness and permanence.
(iv) Reduction in the toxicity, mobility, quantity, or volume of
other constituents present at the range.
(v) Short-term effectiveness.
(vi) Implementability.
(vii) Cost.
(viii) Acceptability to Federal and State regulatory agencies, or
agencies with jurisdiction over affected resources.
(ix) Community (including current property owner) acceptance.
(d) Evaluation of RA/AR process results. (1) The RA/AR process
continues until:
(i) Enough information has been gathered to make an informed risk
management decision, or it is determined that the effort necessary to
collect that information is beyond the scope of the RA.
(ii) Identified risks have been addressed through implementation of
an AR, or it is determined that ARs are unable to address the
identified risk.
(2) An RA/AR report shall be prepared to document the findings of
all assessment activities and the reasons for and effectiveness of each
AR implemented.
(3) The RA/AR report shall make a recommendation as to appropriate
action, including one or a combination of the following
recommendations:
(i) Issue a determination of no further action (residual munitions
risk is below the threshold of concern and no continued protective
measures or institutional controls are needed).
(ii) Conduct recurring reviews of the ARs implemented.
(iii) Conduct a range evaluation (RE).
(iv) Issue a technical impracticability (TI) determination.
(v) Other recommendations, as appropriate.
(e) Public and government agency involvement. This section
describes
[[Page 50837]]
Federal, State, and local government, American Indian tribal, and
public involvement with the RA/AR process.
(1) Before beginning the RA/AR, the responsible DoD component shall
send a written notice to the appropriate Federal, State, and local
governments and American Indian tribe, informing them that these
activities will be starting. This notice will also request that these
governments designate a point of contact within their organization and
identify that point of contact to the responsible project team. The
responsible DoD component shall also send a copy of this notice to the
current property owner.
(2) All validated information about conditions at the military
range, the documented risks posed by the site, and any ARs to address
those risks shall be included in the administrative record and be made
available to Federal, State, and local governments; American Indian
tribes; and the public through the information repository.
(3) For all ARs where implementation of an on-site action is
expected to take more than one hundred twenty (120) days to complete,
within that period the responsible DoD component shall conduct
interviews with local officials, community residents, public interest
groups, or other interested or affected parties, as appropriate, to
solicit their concerns, information needs, and how or when they would
like to be involved in the range response process. The responsible DoD
component shall also prepare a formal public involvement plan (PIP)
based on the community interviews or other relevant information,
specifying the public involvement activities that are needed during the
response.
(4) The RA report shall be subject to a forty-five (45)-day review
and comment period prior to implementation of the AR. However, if the
physical construction associated with an interim AR, including
implementation of site access control measures, is reasonably expected
to be completed within 120 days of the commencement of the AR (i.e.,
completion of the RA), the opportunity for review and comment may be
provided during or when the AR has been implemented.
(5) As part of involving Federal, State, and local governments;
American Indian tribes; and the public in the range response, the
responsible DoD component shall make use of existing Restoration
Advisory Boards (RABs) to involve these parties throughout the process,
or other forums, such as an Extended Project Team (EPT), as the
specifics of the site or interest of the community indicate.
(6) Range responses conducted under this part shall include a
technology education program which provides an opportunity for members
of the public, American Indian tribes, and regulators to receive a
general explanation of available UXO detection and remediation
technologies, their capabilities, and their limitations. This program
will be provided by the responsible DoD component beginning in the RA/
AR phase. The program shall consist of a presentation to the RAB or EPT
which generally explains the UXO detection and removal technologies
available to respond to former military ranges. Additional
presentations may be made as a follow-up to the initial presentation if
significant technology advancements have been made.
(7) Except as provided in paragraph (e)(4) of this section, once
the RA/AR report is complete, the responsible DoD component shall:
(i) Send a copy of the draft RA/AR report to the appropriate
Federal and State regulators and American Indian tribe, seeking their
review and comment.
(ii) Publish a notice of availability and brief description of the
RA/AR report in a major local newspaper of general circulation
announcing a forty-five (45)-day period for submission of written
comments.
(iii) Hold a public meeting or availability session, if requested.
(iv) Develop written responses to significant comments received
during the comment period and prepare a final RA/AR report.
(8) Except as provided in paragraph (e)(4) of this section, the
responsible DoD component shall then prepare a formal decision document
specifying the action(s) to be taken.
(i) This decision document and all supporting information are part
of the administrative record.
(ii) Copies of the decision document will be sent to the
appropriate Federal, State, and local governments; American Indian
tribe; and current property owner.
(iii) The responsible DoD component shall seek concurrence on the
decision document in accordance with Sec. 178.14(e).
Sec. 178.8 Range evaluation.
(a) Purpose. The purpose of the RE is to conduct a detailed
investigation designed to fully characterize the risks posed by any
military munitions, UXO, or other constituents known or believed to be
present at the military range. The purpose of this investigation is to
determine if the AR measures are adequate or whether a site-specific
response is necessary. The RE will typically require the collection and
analysis of quantitative information not otherwise available, in
addition to the data assembled for the RA/AR.
(b) The RE plan. An RE plan shall be prepared providing information
as to the objectives established for the RE, the rationale for those
objectives, and how those objectives will be achieved. As necessary,
the RE plan shall include any sampling and analysis protocols,
explosives safety requirements, data analysis procedures, or studies
required to complete the RE.
(1) Prior to any activities that require entry onto the range, a
site safety plan must be approved by the DDESB or other explosives
safety organization designated by DDESB.
(2) Prior to entry onto a transferred range, written permission
must be obtained from the current Federal land manager or property
owner.
(c) Information collected during the RE should include:
(1) Information about the types, quantities, constituents, and
other factors related to the military munitions employed on the range.
(2) Information on previous range clearance operations or reported
incidents involving military munitions or UXO on the range.
(3) Safety issues related to use of military munitions on the
range.
(4) The identity, concentration, and human health or environmental
effects of other constituents known or believed to be present on the
range.
(5) Any prior agreements identifying reasonably anticipated future
land uses or imposing land use restrictions, and, in the absence of
these, current and reasonably anticipated future land uses.
(6) The environmental setting of the range, including:
(i) The location and identity of receptors (e.g., human, threatened
and endangered species) potentially impacted by the range.
(ii) Specific exposure routes of concern.
(iii) Local hydrologic and hydrogeologic conditions (including
groundwater).
(iv) Soils and geology.
(v) Terrain.
(vi) Climate.
(vii) Biological resources.
(viii) Cultural resources.
(d) Range risk assessment. (1) Information obtained from the RE
will be used to conduct a detailed, quantitative assessment of the
risks posed by any military munitions, UXO, or other constituents
identified at the
[[Page 50838]]
military range to provide an estimate of the overall risk posed by the
range, and to serve as a tool for assessing the effectiveness of a
given response at addressing those risks. The range risk assessment
will evaluate explosives safety, human health, and environmental risks.
(2) The range risk assessment shall consider:
(i) Identification of the source of the risk (e.g., identification
of the specific munitions or constituents).
(ii) The likelihood of exposure.
(iii) The effects of exposure.
(e) RE report. (1) The findings and conclusions of the RE will be
presented in a formal RE report. The RE report shall make a
recommendation as to appropriate action, including one or a combination
of the following recommendations:
(i) The AR was adequate to address the identified risks.
(ii) Conduct recurring reviews.
(iii) Issue a TI determination.
(iv) Conduct a site-specific response.
(v) Issue a determination of no further action.
(vi) Other recommendations, as appropriate.
(2) If the recommendation is to initiate a site-specific response,
a letter report may be used to summarize the findings of the RE,
identify the risks requiring a site-specific response, and the
anticipated scope and start of the site-specific response evaluation
(SSRE). No formal RE report would be prepared, and instead the SSRE
report would incorporate the findings and conclusions of the RE.
(f) Public and government agency involvement. This paragraph
describes Federal, State, and local government; American Indian tribe;
and public involvement with the RE process.
(1) Before beginning the RE, the responsible DoD component shall
send a written notice to the appropriate Federal, State, and local
governments and American Indian tribe informing them that these
activities will be starting. This notice will also request that these
governments designate a point of contact within their organization and
identify that point of contact to the responsible DoD component. The
responsible DoD component shall also send a copy of this written notice
to the current property owner.
(2) The RE plan, all validated information about conditions at the
military range, and any documented risks posed by the site shall be
included in the administrative record and be made available to Federal,
State, and local governments; American Indian tribes; and the public
through the information repository.
(3) As appropriate, the responsible DoD component shall hold a
public availability session to provide information on the status of the
RE when appropriate.
(4) If a letter report in accordance with paragraph (e)(2) of this
section is prepared, then the responsible DoD component shall:
(i) Prepare a formal decision document that summarizes findings of
the RE, identifies the risks requiring a site-specific response, and
describes the anticipated scope and start date of the SSRE.
(ii) Make the decision document available to the public.
(iii) Send a copy of the decision document to the appropriate
Federal, State, and local governments and American Indian tribe. A copy
shall also be sent to the current property owner.
(iv) Seek concurrence on the decision document in accordance with
Sec. 178.14(e).
(5) If a formal RE report is prepared, then, upon completion of the
draft RE report, the responsible DoD component shall:
(i) Send a copy of the draft RE report to the appropriate Federal
and State regulators and American Indian tribe, seeking their review
and comment.
(ii) Publish a Notice of Availability and a brief description of
the RE report in a major local newspaper of general circulation and
announce a forty-five (45)-day period for submission of written
comments.
(iii) Hold a public meeting or availability session, if requested.
(iv) Develop written responses to significant comments received
during the comment period and prepare a final RE report.
(6) After an RE report is finalized, the responsible DoD component
shall prepare a formal decision document recommending the action(s) to
be taken.
(i) This decision document and all its supporting information are
part of the administrative record.
(ii) Copies of the decision document and final report will be sent
to the appropriate Federal, State, and local governments; American
Indian tribe; and current property owners.
(iii) The responsible DoD component shall seek concurrence on the
decision document in accordance with Sec. 178.14(e).
Sec. 178.9 Site-specific response evaluation.
(a) Purpose. An SSRE examines response alternatives that address
the remaining risks identified by the RE that have not been, or cannot
be, effectively addressed by ARs. SSREs are highly focused
investigations of response alternatives that address risks based upon
reasonably anticipated future land use.
(b) SSRE plan. An SSRE plan that provides the following information
shall be prepared: the objectives established for the SSRE, the
rationale for those objectives, and how those objectives will be
achieved. As necessary, the SSRE plan shall include any sampling and
analysis protocols, explosives safety requirements, data analysis
procedures, or studies required to complete the SSRE.
(1) Prior to any activities that require entry onto the range, an
explosives safety plan must be approved by the DDESB or other
explosives safety organization designated by DDESB.
(2) Prior to entry onto a transferred range, written permission
must be obtained from the current Federal land manager or property
owner.
(c) Development of site-specific response alternatives. Site-
specific response alternatives shall be initially developed and
screened in the following manner:
(1) Identify a preliminary list of objectives for the response.
(2) Identify general categories of response actions that will meet
or exceed the preliminary objectives.
(3) Determine the scope of the response.
(4) Identify and screen specific technologies and, within a class
of technologies, identify options for the actual treatment process.
(5) Identify the alternatives or combinations of alternatives for a
more detailed evaluation.
(6) Conduct bench or pilot-scale studies as necessary.
(d) Analysis of site-specific response alternatives. The following
evaluation criteria shall be interpreted and have the same meanings as
set forth in the NCP and shall be interpreted in the same manner as in
the preamble to the NCP and any relevant policy or guidance issued by
EPA. The response alternatives developed in paragraph (c) of this
section shall be further analyzed with respect to the following nine
evaluation criteria:
(1) Protection of human health and the environment (including
explosives safety and natural resources).
(2) Compliance with Federal and State ARARs, or appropriate use of
waivers from those requirements.
(3) Long-term effectiveness. Assess the residual risk posed by
military munitions (including UXO) or other constituents that will
remain at the range following the completion of the
[[Page 50839]]
response action, and consider the reliability and adequacy of the
action in providing a long-term or permanent solution to the hazards
posed at the range. The long-term effectiveness evaluation shall also
include an assessment of any potential long-term liabilities associated
with the response action.
(4) Reduction in toxicity, mobility, quantity, or volume of other
constituents present at the range.
(5) Short-term effectiveness. Address the risks or impacts of the
alternative from the start of the action through to the time when the
response objectives are achieved.
(6) Implementability. Assess both the technical and administrative
feasibility of implementing each alternative. Included in this
assessment are:
(i) Consideration of the availability of the necessary resources to
implement the alternative.
(ii) Assessment of the reliability of the alternative.
(iii) Assessment of whether the action will impede other responses
at the range.
(iv) Requirements for interaction with other Federal, State, or
local governments or American Indian tribes.
(v) Availability of on- and off-range treatment and disposal
capacity.
(7) Cost. Assess direct and indirect capital costs; operating and
maintenance costs; and long-term liability costs associated with the
alternative.
(8) Acceptability of each alternative to Federal and State
regulatory agencies or agencies with jurisdiction over affected
resources.
(9) Community acceptance (community and/or property owner
acceptance).
(e) Site-specific response evaluation report. (1) The findings and
conclusions of the SSRE shall be presented in an SSRE report. If only a
letter report is prepared for an RE, the findings and conclusions of
the RE shall be documented in the SSRE report. The SSRE report shall
make a recommendation of appropriate action, including one or a
combination of the following recommendations:
(i) Implement the recommended response alternative(s).
(ii) Conduct recurring reviews.
(iii) Issue a TI determination.
(2) [Reserved]
(f) The SSRE report shall document the selection of alternative(s)
by:
(1) Identifying the alternative(s) to be implemented.
(2) Discussing the goals of the response (e.g., the risk to be
addressed).
(3) Explaining how the response is expected to achieve the goals.
(4) Providing information as to how the alternative(s):
(i) Provides for explosives safety.
(ii) Protects human health and the environment.
(iii) Addresses the concerns of the public and government agencies
that were received in the written comments.
(iv) Eliminates, reduces, or controls the risks posed by military
munitions, UXO, or other constituents present at the range.
(v) Meets ARARs, or identifies those requirements that will not be
met, and provides the justification for the waivers, and any conditions
imposed.
(vi) Discusses whether military munitions, UXO, or other
constituents will remain at the range following the completion of the
response, and if so, describes the specific mechanisms used to ensure
that land use remains compatible with any residual hazard, and
designates the frequency of recurring reviews.
(g) Public and government agency involvement. This paragraph
describes Federal, State, and local government; American Indian tribal;
and public involvement in the RE/SSRE process.
(1) The RE and SSRE Plans, all validated information about
conditions at the military range, any documented risks posed by the
site, and any validated information generated during the SSRE shall be
included in the administrative record and be made available to the
appropriate Federal, State, and local governments; American Indian
tribe; and the public through the information repository.
(2) As appropriate, the responsible DoD component will hold public
availability sessions to provide information on the status of the RE
and SSRE.
(3) Once the draft SSRE report is complete, the responsible DoD
component shall:
(i) Send a copy of the draft SSRE report to the appropriate Federal
and State regulators and American Indian tribe, seeking their review
and comment.
(ii) Publish a notice of availability and brief description of the
SSRE report in a major local newspaper of general circulation
announcing a forty-five (45)-day period for submission of written
comments.
(iii) If requested, hold a public meeting or availability session.
(iv) Develop written responses to significant comments received
during the comment period and prepare a final SSRE report.
(4) The responsible DoD component shall then prepare a formal
decision document specifying the action(s) to be taken.
(i) This decision document and all supporting information are part
of the administrative record.
(ii) Copies of the final SSRE report and decision document will be
provided to the appropriate Federal, State, and local governments and
American Indian tribe. In the case of a military range on privately
owned lands, a copy of these documents shall also be sent to the
current property owner.
(iii) The responsible DoD component shall seek concurrence on the
decision document in accordance with Sec. 178.14(e).
Sec. 178.10 Site-specific response implementation.
(a) Implementation plan. A response implementation plan shall be
prepared describing the objectives established for the response, the
rationale for those objectives, and how those objectives will be
achieved. As necessary, the document shall also detail the design,
construction, operation, maintenance, monitoring, and decommissioning
of the response alternative, and any operational guidance and training
of personnel involved in implementing the response.
(1) Prior to any activities that require entry onto a range, an
explosives safety plan must be approved by the DDESB.
(2) Prior to entry onto a transferred range, written permission
must be obtained from the current Federal land manager or property
owner.
(b) Response implementation. Implementation of the response
requires the following:
(1) Actual construction and initial operation of the response,
including conducting necessary quality assurance inspections and
preparing any necessary periodic reports on progress in executing the
response.
(2) Once the response is fully operational, monitoring the response
to determine its effectiveness.
(3) Operation until all response objectives are achieved.
(c) Public and government agency involvement. This paragraph
describes Federal, State, and local government; American Indian tribal;
and public involvement in the process of implementing the site-specific
response.
(1) All validated information about conditions at the military
range, the documented risks posed by the site, and the site-specific
response to address those risks shall be included in the administrative
record and be made available to Federal, State, and local governments;
American Indian tribes; and the public through the information
repository.
[[Page 50840]]
(2) As appropriate, the responsible DoD component will hold public
availability sessions to provide information on the status of the
response.
(3) If requested, the responsible DoD component shall provide
periodic updates on the status of the response to the appropriate
Federal, State, and local governments and American Indian tribe.
(4) A periodic update on the status of the response shall be sent
to the current property owner.
Sec. 178.11 Recurring reviews.
(a) Purpose. The purpose of recurring reviews is to determine if
the responses taken continue to minimize explosives safety risks and
protect human health and the environment, and to provide an opportunity
for assessing new technology. The scope of the review will depend upon
the response objectives and the specific responses implemented. The
review will evaluate the changes in physical conditions at the range,
changes in public accessibility, applicability of new UXO technology or
other new technology that will overcome a previous TI determination,
and continued effectiveness of the response.
(b) Conduct of recurring reviews. Recurring reviews shall be
conducted for ARs, any conditions imposed as part of a TI
determination, and site-specific responses. Sites with a determination
of no further action are not subject to recurring reviews.
(c) Frequency of recurring reviews. (1) Recurring Reviews shall be
conducted starting in the third year following the completion of the
response.
(2) Subsequent reviews may, as needed, be repeated in the seventh
year and at five-year intervals thereafter, for as long as needed.
(3) The review cycle may be set on a different or more frequent
schedule (e.g., years 2, 5, 9, 14), as necessary.
(d) Documenting recurring review findings. (1) At each recurring
review, the review procedures and the evaluation criteria used to
assess the effectiveness of the response will be documented in a
recurring review report.
(2) The recurring review report will provide a discussion of the
findings, stating whether or not the response continues to effectively
address the risk at the range, and if any new problems have been
discovered in the period since the last review, such as changes in
public accessibility (due, for example, to changes in adjacent land
uses).
(3) If the response failed to remain effective, or a new problem is
discovered, then the responsible DoD component will document the
action(s) which will be taken to address that problem and the schedule
for the action. If the response was inadequate, then the response
process starts again at the RA/AR phase.
(e) Public and government agency involvement. This paragraph
describes Federal, State, and local government; American Indian tribal;
and public involvement in the recurring review process.
(1) The responsible DoD component shall:
(i) Send a copy of the draft recurring review report to the
appropriate Federal and State regulators and American Indian tribe,
seeking their review and comment.
(ii) Publish a notice of whether the response remains effective or
not in a major local newspaper of general circulation.
(iii) Hold a public availability session or meeting, if requested.
(2) The responsible DoD component shall then prepare a formal
decision document specifying the actions(s) to be taken.
(i) This decision document and all supporting information are part
of the administrative record.
(ii) Copies of the decision document will be provided to the
appropriate Federal, State, and local governments and American Indian
tribe. In the case of a military range on privately owned land, a copy
of this document shall also be sent to the current property owner.
(iii) The responsible DoD component shall seek concurrence on the
decision document in accordance with Sec. 178.14(e).
Sec. 178.12 Ending the range response process.
(a) Following completion of an appropriate number of recurring
reviews to demonstrate that the range poses no significant risk to
public health or the environment, and commensurate with the originally
agreed upon use of the property, the responsible DoD component may
administratively close out and end the range response process subject
to the following requirements:
(1) Demonstration that any military munitions (including UXO) or
other constituents at the military range pose minimal risks.
(2) The specific response objectives have been achieved and all
related monitoring activities demonstrate that achievement.
(3) The response is fully operational and performing to design
specifications.
(4) The only remaining activities at the site involve operations
and maintenance.
(b) Range close-out report. A range close-out report shall be
prepared supporting completion of the response. This report will
include:
(1) A summary of the range's history and past and current
conditions.
(2) Demonstration that all response objectives have been met.
(3) A determination that sufficient monitoring results have been
collected to demonstrate that the response objectives have been
achieved.
(4) Demonstration that any long-term maintenance requirements for
the response are capable of being successfully carried out.
(5) Documentation that the range response has effectively addressed
the risks posed by military munitions, UXO, or other constituents at
the range. Approval must be obtained from DDESB.
(c) Public and government agency involvement. This paragraph
describes Federal, State, and local government; American Indian tribal;
and public involvement in the process of ending the range response.
(1) Once the draft range close-out report is complete, the
responsible DoD component shall:
(i) Send a copy of the draft range close-out report to the
appropriate Federal and state regulators and American Indian Tribe,
seeking their review and comment.
(ii) Publish a notice of intent to end response activities in a
major local newspaper of general circulation announcing a forty-five
(45)-day period for submission of written comments.
(iii) Hold a public meeting or availability session, if requested.
(iv) Develop written responses to significant comments received
during the comment period and prepare a final range close-out report.
(2) The responsible DoD component shall then prepare a formal
decision document specifying the action(s) to be taken.
(i) This decision document and all supporting information are part
of the administrative record.
(ii) Copies of the decision document and final report will be sent
to the appropriate Federal, State, and local governments; American
Indian tribe; and the current property owner.
(iii) The responsible DoD component shall seek concurrence on the
decision document in accordance with Sec. 178.14(e).
(d) The Department of Defense's continuing obligation. If at some
future date a problem is discovered at a military range that has been
administratively closed out, the Department of Defense will conduct an
[[Page 50841]]
appropriate response to address the problem. This response typically
will be handled as an explosives or munitions emergency response;
however, if the circumstances indicate a need for a more detailed
response, the Department of Defense will reopen the range response
process and conduct any appropriate actions.
Sec. 178.13 Information repository and the administrative record.
(a) Purpose. The Department of Defense seeks to ensure full and
active participation by any public or private entity interested in the
range response process. Accomplishing this requires making information
about the response activities taken at each military range available to
the public. This section establishes the minimum requirements for
making this information available.
(b) Information repository. The responsible DoD component shall
establish an information repository.
(1) This information repository will be located where it is easily
accessible to the local population, such as the community library. The
information repository will be established when the RA/AR is initiated.
(2) Upon completion of each relevant study document, report, or
decision document, the responsible DoD component will place a copy of
that document in the information repository.
(c) Administrative record. The responsible DoD component shall
establish an administrative record that contains the documents that
form the basis for the selection of response actions.
(1) The administrative record shall be maintained at a location
near the site being addressed, as established by the responsible DoD
component.
(2) A copy of the administrative record shall be made publicly
available at the information repository.
(3) Documents to be placed in the administrative record include,
but are not limited to, the following:
(i) Notice that the RA/AR is being initiated.
(ii) The RA/AR report.
(iii) The RE plan.
(iv) All explosives safety plans.
(v) The RE report.
(vi) The SSRE plan.
(vii) The site-specific evaluation report.
(viii) The site-specific response implementation plan.
(ix) Recurring review reports.
(x) The range close-out report.
(xi) All decision documents.
(xii) All public comments.
Sec. 178.14 Participation of and concurrence role for Federal and
State regulatory agencies, American Indian tribes, and Federal land
managers.
(a) General. This part provides the appropriate Federal and State
environmental remediation regulatory agencies and American Indian
tribes with the opportunity to concur and participate in the
development of the various decision documents under this part. This
part also provides Federal land managers having jurisdiction, custody,
or control over property on which a range response will occur the
opportunity to concur and otherwise participate. The provisions of this
section are in addition to the provisions elsewhere in this part which
provide for participation of Federal, state, and local governments;
American Indian tribes; the public; and current property owners.
(b) A Federal land manager for a transferred or transferring range
will be given the opportunity to participate on the range response
project team during all phases of the range response as an equal member
of the team, with access to project documents and information. The
Federal land manager will be provided a concurrence role during the
evaluation and response at the range, including at the RA/AR, RE/SSRE,
recurring review, and administrative close-out phases. In the absence
of concurrence on significant issues or a document, a Federal land
manager member of the project team may invoke the formal dispute
resolution mechanism provided in Sec. 178.15(b).
(c) Review. As required under this part, the responsible DoD
component will seek review and comments from the appropriate Federal,
State, and local governments; American Indian tribe; Federal land
manager; the public; and other parties on the following: the RA/AR
report under Sec. 178.7; the RE report under Sec. 178.8, if prepared;
the SSRE report under Sec. 178.9; the recurring review report under
Sec. 178.11; and the range close-out report under Sec. 178.12. The
parties identified in paragraph (e) of this section shall have forty-
five (45) days for review of these documents. The responsible DoD
component will then respond to significant comments, after which the
responsible DoD component will issue a draft decision document for
concurrence from the parties identified in paragraph (e).
(d) Decision documents. For purposes of this paragraph, ``decision
documents'' shall mean the following: the decision document prepared
under Sec. 178.7(e)(8) for the RA/AR phase; the decision document
prepared under Sec. 178.8(f)(4) or (6) for the RE; the decision
document prepared under Sec. 178.9(g)(4) for the SSRE; the decision
document prepared under Sec. 178.11(e)(2) for the recurring review
phase; the decision document prepared under Sec. 178.12(c)(2) for the
administrative close-out phase; and any final work plan for on-range
activities under Sec. 178.7(b)(2)(i). These decision documents shall
include any TI or no further action determinations, as well as ARAR
waivers.
(e) Concurrence. When the responsible DoD component provides a
draft decision document, the appropriate Federal or State regulatory
agency or affected American Indian tribe, as well as to any Federal
land manager having jurisdiction, custody, or control over property on
which a range response will occur, will have forty-five (45) calendar
days from the date of dispatch to provide its written concurrence or
nonconcurrence with the draft decision document. An extension of up to
thirty (30) additional days may be granted by the responsible DoD
component, upon request. If no written response is received by the
responsible DoD component within that forty-five (45)-day period, or
seventy-five (75)-day period if an extension was granted, then the
responsible DoD component may proceed with a range response action or
invoke the dispute resolution process as set forth in Sec. 178.15(b),
or both. If a regulatory agency, American Indian tribe, or Federal land
manager provides a timely nonconcurrence to the responsible DoD
component, then the regulatory agency, American Indian tribe, or
Federal land manager and the responsible DoD component will attempt to
informally resolve the dispute. If they are unable to informally
resolve the dispute to the satisfaction of the regulatory agency,
American Indian tribe, or Federal land manager, then the regulatory
agency, American Indian tribe, or Federal land manager, as the case may
be, may utilize the formal dispute resolution mechanism provided in
Sec. 178.15(b).
(f) Alternative timelines and dispute resolution. The responsible
DoD components and regulatory agencies, American Indian tribes, or
Federal land managers may enter into agreements, either site-specific
or area-wide, that provide for different timelines and dispute
resolution procedures. These agreements may combine the review and
dispute resolution procedures under this part with environmental
remediation actions taken under other authorities or agreements in
order to achieve efficiency and uniformity. Any such agreement will not
make the review and dispute resolution processes or decision documents
under this part
[[Page 50842]]
subject to the assessment of fines or penalties of any kind.
Sec. 178.15 Dispute resolution.
(a) If a dispute arises under this part, interested entities who
may feel aggrieved by the responsible DoD component's response
activities are encouraged to pursue alternative dispute resolution
mechanisms with the responsible DoD component to resolve any
differences over the response alternatives selected.
(b) If a dispute on a significant issue or document arises under
Sec. 178.14 that is not resolved informally between the Federal or
State regulatory agency, American Indian tribe, or Federal land manager
and the responsible DoD component at the project officer level, then
the regulatory agency, American Indian tribe, Federal land manager, or
responsible DoD component, as the case may be, may pursue the following
formal dispute resolution procedure:
(1) The regulatory agency, American Indian tribe, or Federal land
manager will provide a written statement of its dispute, along with any
rationale or supporting documents, to the military commander
representing the responsible DoD component. The military commander will
engage in discussions with the regulatory agency, American Indian
tribe, or Federal land manager in an attempt to arrive at a consensus
and resolve the dispute.
(2) If no resolution is reached within thirty (30) calendar days of
receipt of the statement of dispute, then the dispute may be elevated
to the responsible DoD component's headquarters-level official, or his/
her designee. The headquarters-level official for the responsible DoD
component will engage in discussions with the regulatory agency,
American Indian tribe, or Federal land manager to attempt to arrive at
a consensus. If consensus is not achieved, the headquarters-level
official for the responsible DoD component will announce his or her
resolution of the dispute, along with a written statement of the
supporting rationale.
(3) Within thirty (30) calendar days from announcement of a
resolution under Sec. 178.15(b)(2), the dispute may be elevated to the
principal environmental policymaker for the responsible DoD component,
or his or her designee. The principal environmental policymaker for the
DoD component will engage in discussions with the regulatory agency,
American Indian tribe, or Federal land manager to attempt to arrive at
a consensus. If consensus is not achieved, the headquarters-level
official for the DoD component will announce his or her resolution of
the dispute, along with a written statement of the supporting
rationale.
(4) In the case of a dispute involving Federal agencies with
respect to the application and/or interpretation of this part, a
Federal agency dissatisfied with the results of the dispute resolution
process in paragraphs (b)(1) through (b)(3) of this section may raise
its dispute within thirty (30) calendar days from announcement of a
resolution under paragraph (b)(3) to the Secretary of the Military
Department, or his or her designee who must be a political appointee
whose appointment requires the advice and consent of the Senate, and to
its Department Secretary/Agency Administrator, or his or her designee
who also must be a political appointee whose appointment requires the
advice and consent of the Senate. For disputes arising at a closed,
transferred, or transferring range that is a facility listed on the
NPL, the Secretary of the Military Department (or his or her designee)
shall resolve issues related to explosives safety, and the EPA
Administrator (or his or her designee) shall resolve issues related to
the release or substantial threat of release of other constituents that
are subject to CERCLA jurisdiction. If consensus is not achieved, then
the Secretary of the Military Department (or his or her designee) and/
or, as applicable, the EPA Administrator (or his or her designee) will
announce his or her resolution of the dispute, along with a written
statement of the supporting rationale. Nothing in this paragraph shall
restrict or enlarge the authority of the EPA Administrator with respect
to a facility on the NPL. If any party is dissatisfied with the
resolution of the dispute, the dispute may be elevated to the Office of
Management and Budget (OMB).
(5) In the case of a dispute involving a State regulatory agency or
American Indian tribe with respect to the application and/or
interpretation of this part, a State or tribe dissatisfied with the
results of the dispute resolution process in paragraphs (b)(1) through
(b)(3) of this section may raise its dispute within thirty (30)
calendar days from announcement of a resolution under paragraph (b)(3)
to the Secretary of the Military Department, or his or her designee who
must be a political appointee whose appointment requires the advice and
consent of the Senate, and to the Governor of the State or the American
Indian tribal leader as appropriate, or their designee. If consensus is
not achieved, the Department Secretary or his or her designee will
announce his or her resolution of the dispute, along with a written
statement of the supporting rationale, with respect to the application
and interpretation of this part, and the State or tribe may pursue its
authority under any applicable laws.
(6) The dispute resolution process set forth in this section may
also be utilized by a DoD component as provided for elsewhere in this
part (for example, when significant unresolved issues exist). The same
levels for dispute resolution will be utilized in such cases; however,
in such cases, the DoD component would provide a written statement of
its dispute, along with supporting rationale, to the regulatory agency,
American Indian tribe, or Federal land manager, as applicable.
(7) Range response activities will not be suspended during the
dispute resolution process absent extraordinary circumstances. If the
Secretary of a Federal land manager, or his or her designee whose
appointment requires the advice and consent of the Senate, provides a
written declaration with supporting rationale to the Department
Secretary for the DoD component, stating that an immediate suspension
of response activities during the full dispute resolution process is
needed to prevent substantial environmental harm that would result from
the performance of the activity itself, the responsible DoD component
shall immediately suspend such activity, to the extent consistent with
the protection of human health from any imminent and substantial
danger. The suspension issue (i.e., whether to suspend response actions
during the full dispute resolution process) will be raised directly to
the Military Service Department Secretary, or his or her designee whose
appointment requires the advice and consent of the Senate, consistent
with paragraph (b)(4) of this section. The Secretary of the Federal
land manager and the Military Service's Department Secretary will have
5 calendar days to arrive at a consensus on the suspension issue. If no
consensus is reached, then the Federal land manager will have 5
calendar days to raise the suspension issue to OMB and request OMB to
decide whether to continue the suspension of the response action. Five
days following the submission of the suspension issue to OMB, the
Military Service can resume activity unless OMB makes or has made a
determination that the response actions should not resume pending
resolution of the underlying dispute, or that an additional time period
is needed to consider the merits of the arguments over whether the
response action should be allowed to resume.
[[Page 50843]]
(8) These time limits may be extended on the mutual agreement of
the parties to the dispute.
Sec. 178.16 Future land use for transfers within the Federal
government.
(a) This section discusses how future land use issues are
incorporated where a Federal land manager has jurisdiction, custody, or
control over property on which a range response will or has occurred.
(b) For transferring ranges, the Department of Defense will conduct
and fund response activities consistent with all reasonably anticipated
future land uses that are identified and agreed to between the parties
to the land transfer prior to the transfer. Where the transfer of the
military range is mandated by statute, Executive Order, a previously
concluded agreement between the Department of Defense and the Federal
land manager, or under the terms of a withdrawal, special-use permit or
authorization, right-of-way, public land order, or other instrument
issued by the Federal land manager under which the Department of
Defense used the property, and where future land uses are not
identified or response activities are not specified in such statute,
order, agreement, or instrument, any dispute will be resolved through
utilization of the dispute resolution procedure identified in this
part. Where the transfer is not legally mandated, disagreement over
what the reasonably anticipated future land uses are may result in the
transfer of the property to some other party, or no transfer.
Technology limitations may restrict current uses or cleanup of the
property. Reasonably anticipated future land uses for the property will
not necessarily be limited by current technological limitations on the
cleanup of UXO on ranges.
(c) For transferred ranges, in the absence of a prior agreement
identifying reasonably anticipated future land uses or imposing land
use restrictions, the Department of Defense will conduct and fund
response activities consistent with all reasonably anticipated future
land uses at the time of the range response. Reasonably anticipated
future land uses will be decided by the Federal land manager with the
concurrence of the Department of Defense. If there is disagreement, the
dispute resolution procedure identified in this part will be utilized.
Technology limitations may restrict current uses or cleanup of the
property. Reasonably anticipated future land uses for the property will
not necessarily be limited by current technological limitations on the
cleanup of UXO on ranges.
(d) If there is disagreement over the reasonably anticipated future
land uses, the dispute resolution provisions in Sec. 178.15 will be
utilized. Technology limitations may restrict current uses or cleanup
of the property. Reasonably anticipated future land uses for the
property will not necessarily be limited by current technological
limitations on the cleanup of unexploded ordnance on ranges.
(e) The Department of Defense will conduct and fund additional
response actions where:
(1) The remedy fails (e.g., the remedy fails to meet previously
identified remediation goals or response objectives; restrictions on
access or other institutional controls fail not due to the acts or
omissions of the Federal land manager but due to changes in the use of
or access to surrounding parcels of property, such as those relating to
population growth and migration; or through other developments out of
the control of the Federal land manager); or
(2) Contamination (i.e., other constituents) caused by the
Department of Defense of a previously unknown nature, location,
magnitude, or extent creates conditions inconsistent with the
reasonably anticipated land use that had been agreed upon or otherwise
established; or
(3) Additional UXO is found that creates conditions inconsistent
with the established reasonably anticipated land use; or
(4) Changes in applicable laws or regulations concerning cleanup
standards necessitate reassessment of a previous response; or
(5) UXO technology limited the range response, with the result that
the use of the land is more restricted than the established reasonably
anticipated future land use, but later improvements in technology that
are cost effective allow for removal of such a restriction and there is
a current need for the removal of such restriction; or
(6) A statute, a final and binding court order, or a final and
binding administrative order necessitates additional response actions
to address UXO attributable to Department of Defense activities on the
property, provided that the order is not occasioned by Federal land
manager activities that are inconsistent with the reasonably
anticipated future land use; or
(7) The remedy fails to protect previously unidentified significant
environmental or cultural resources that would have been protected
consistent with the established reasonably anticipated future land use
and this part, had their existence been known at the time of the
previous range response.
Dated: September 18, 1997.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-25269 Filed 9-25-97; 8:45 am]
BILLING CODE 5000-04-P
