[Federal Register Volume 62, Number 29 (Wednesday, February 12, 1997)]
[Rules and Regulations]
[Pages 6622-6657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3218]
[[Page 6621]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 260, et al.
Military Munitions Rule: Hazardous Waste Identification and Management;
Explosives Emergencies; Manifest Exemption for Transport of Hazardous
Waste on Right-of-Ways on Contiguous Properties; Final Rule
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 /
Rules and Regulations
[[Page 6622]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 262, 263, 264, 265, 266, and 270
[EPA 530-Z-95-013; FRL-5686-4]
RIN 2050-AD90
Military Munitions Rule: Hazardous Waste Identification and
Management; Explosives Emergencies; Manifest Exemption for Transport of
Hazardous Waste on Right-of-Ways on Contiguous Properties
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: In response to section 107 of the Federal Facility Compliance
Act (FFCA) of 1992, EPA is today finalizing a rule that identifies when
conventional and chemical military munitions become a hazardous waste
under the Resource Conservation and Recovery Act (RCRA), and that
provides for the safe storage and transport of such waste. Today's
final rule also amends existing regulations regarding emergency
responses involving both military and non-military munitions and
explosives. This rule also exempts all generators and transporters of
hazardous waste, not just the military, from the RCRA manifest for the
transportation of hazardous waste on public or private right-of-ways on
or along the border of contiguous properties, under the control of the
same person, regardless of whether the contiguous properties are
divided by right-of-ways. This revision is expected to reduce the
paperwork burden, for hazardous waste generators whose property is
divided by right-of-ways without loss in protection of public health.
EFFECTIVE DATE: This rule is effective on August 12, 1997.
ADDRESSES: The public docket for this rulemaking is available for
public inspection at EPA's RCRA Docket, located at Crystal Gateway,
First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The
regulatory docket for this final rule contains a number of background
materials. To obtain a list of these items, contact the RCRA Docket at
703-603-9230 and request the list of references in EPA Docket #F-97-
MMF-FFFFF.
FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9:00a.m.-6:00
p.m. EST, toll-free, at 800-424-9346; 703-412-9810 from Government
phones or if in the Washington, D.C. local calling area; or 800-553-
7672 for the hearing impaired. For more detailed information on
specific aspects of the rulemaking, contact Ken Shuster by calling 703-
308-8759 or by writing, to U.S. Environmental Protection Agency, Office
of Solid Waste, Permits and State Programs Division, 401 M St., S.W.
(Mailcode 5303W), Washington, D.C. 20460.
SUPPLEMENTARY INFORMATION: This rule is available on the Internet.
Please follow these instructions to access the rule electronically:
From the World Wide Web (WWW), type http://www.epa.gov/epaoswer,
then select option for Rules and Regulations.
This report can also be accessed from the main EPA Gopher menu in
the directory: EPA Offices and Regions/Office of Solid Waste and
Emergency Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste
Gopher: gopher.epa.gov
Dial-up: 919-558-0335
FTP: ftp.epa.gov
Login: name
Password: Your Internet address
Files are located in /pub/gopher/OSWRCRA/hazwaste
The official record for this action is kept in a paper format.
Accordingly, EPA has transferred all comments received into paper form
and placed them into the official record, with all the comments
received in writing. The official record is maintained at the address
in the ``ADDRESSES'' section at the beginning of this document.
EPA's responses to comments have been incorporated in a ``Response
to Comments'' document, which has been placed into the official record
for this rulemaking. The major comments and responses are discussed in
the Response to Comment sections of this preamble.
Preamble Outline
I. Legal Authority
II. Background
III. Summary of Significant Changes From Proposed Rule
IV. Description of the Final Rule and Responses to Comments
A. Description of Major Affected Parties
B. Scope, Applicability, and Definition of Military Munitions
C. Separate CFR Part for Military Munitions
D. Uniform National Standards
E. When Military Munitions Become a Solid Waste
F. When Unused Military Munitions Become a Solid Waste
1. Section 266.202(b)(1)--Munitions That Have Been or are
Abandoned by Being Disposed of, Burned, or Otherwise Treated Prior
to Disposal
2. Section 266.202(b)(2)--Munitions Removed From Storage for the
Purposes of Treatment or Disposal
3. Section 266.202(b)(3)--Leaking or Deteriorated Munitions
4. Section 266.202(b)(4)--Munitions Determined by an Authorized
Military Official to be a Solid Waste
G. When Military Munitions Are Not a Solid Waste
1. Intended Use
a. Section 266.202(a)(1)(i)--Military training exercises.
b. Section 266.202(a)(1)(ii)--Weapons testing.
c. Section 266.202(a)(1)(iii)--Range clearance operations.
2. Section 266.202(a)(2)-- Disassembly operations.
H. Military Munitions On Closed and Transferred Ranges
I. When Used or Fired Military Munitions Become Solid Waste,
including Military Munitions That Land Off-Range
J. Waste Materials Derived from Munitions Manufacture
K. Chemical Munitions
L. Generator and Transporter Standards
M. Storage Standards
1. Conditional Exemption for Waste Military Munitions in Storage
a. Conditional Exemption for Waste Non-chemical Munitions
(1) Legal Basis for Conditional Exemption Approach
(2) Implementation and Enforcement Issues
(3) Amendments to DDESB Standards
b. Waste Chemical Munitions
(1) Applicability of RCRA Requirements to Waste Chemical
Munitions
(2) Inapplicability of Conditional Exemption
(3) Inapplicability of RCRA Storage Prohibition
2. Subpart EE
N. Permit Modifications to Receive Off-Site Waste Munitions
O. Environmental Justice
P. Emergency Responses
Q. Manifest Exemption For Transport of Hazardous Waste In Lieu
of ``On-Site'' Redefinition
V. State Authority
VI. Administrative Requirements/Compliance with Executive Order
A. Regulatory Impact Analysis Under Executive Order 12866
1. Cost Analysis
2. Benefits Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates
VII. Submission to Congress and the General Accounting Office
I. Legal Authority
These regulations are being finalized under the authority of
sections 2002, 3001-3007 (including 3004(y)), 3010, 7003, and 7004 of
the Solid Waste Disposal Act of 1965, as amended, including amendments
by RCRA and the FFCA (42 U.S.C. 6912, 6921-7, 6930, and 6973-4).
II. Background
Section 107 of the Federal Facility Compliance Act (FFCA) of 1992
[[Page 6623]]
amended the Resource Conservation and Recovery Act (RCRA) by adding a
new section 3004(y) that requires the U.S. Environmental Protection
Agency (EPA) to propose, after consulting with the Department of
Defense (DOD) and appropriate State officials, and then to finalize
regulations that identify when conventional and chemical military
munitions become hazardous waste subject to Subtitle C of RCRA, and
that provide for the safe storage and transportation of such waste.
Such regulations are to assure the protection of human health and the
environment. This final rule responds to this Congressional mandate.
The Agency consulted with DOD and appropriate State representatives
prior to the promulgation of this rule, as the statute requires.
Records of these meetings and information provided to EPA have been
included in the official docket of this final action.
EPA proposed the rule on November 8, 1995 (60 FR 56468). The public
comment period ended on February 2, 1996. As mentioned in the proposal,
the Agency focused on several key issues that have arisen in the
application of RCRA to military munitions, or that have been raised by
DOD, States, or citizen groups. The six major issues raised during the
development of the proposed rule and addressed in today's final rule
are the following: (1) At what point does an unused munition become a
RCRA ``hazardous waste,'' potentially subject to RCRA permitting and
technical management standards? Specifically, at what point in the
process do unused munitions slated for destruction first become subject
to RCRA? (2) Should RCRA hazardous waste management standards apply to
the use of munitions in weapons testing or military training exercises?
(3) How do RCRA hazardous waste regulations apply to emergencies
involving military munitions and explosives and non-military
explosives? (4) In what way (if any) do RCRA requirements apply to
unexploded ordnance and environmental contamination at military ranges,
especially ranges that are closed or transferred? (5) Once it has been
determined that a munition is a hazardous waste for regulatory
purposes, what management standards are needed to ensure safe
transportation and storage, while protecting human health and the
environment? (6) Should the definition of ``on-site'' be revised to
simplify compliance with RCRA manifest standards at contiguous
facilities cut by right-of-ways?
In developing the final rule, EPA reviewed the comments received
from 124 organizations and individuals on the proposed rule, including
DOD, other Federal agencies, States, universities, associations,
corporations, and citizen groups. These comments can be found in the
official docket for this final rule. Responses to significant comments
can be found in the preamble of today's rule.
In addressing each of the above six issues, EPA proposed (in the
November 8, 1995 Federal Register) an option followed in some cases by
a discussion of ``alternative options'' on which the Agency requested
comment. Because of the length and complexity of the issues and options
proposed, the Agency is not revisiting or summarizing these in this
final rule preamble to any great extent. The reader may refer to the
proposed notice for a detailed account of the original proposal.
Instead, this final rule preamble expands on the discussion of the
selected alternative, which appeared in the proposal, in order to
provide additional discussion of the finally selected option. Following
that discussion is a response to comments section for each topic.
Together, the purpose of these discussions is to explain and clarify
the Agency's final direction.
III. Summary of Significant Changes From Proposed Rule
Following is a summary of the significant changes to the proposed
rule in today's final rule. Where the Agency proposed multiple options,
this summary identifies those alternatives that EPA has incorporated
into today's final rule.
The final rule consolidates the requirements applicable solely to
military munitions in a new subpart M under 40 CFR Part 266.
The applicability of proposed 40 CFR 264 and 265 subparts EE for
storage of waste munitions and explosives is being expanded to be
available to owners and operators of all units storing such wastes, not
just the military. In addition, EPA has decided to finalize the second
alternative discussed in the storage section of the proposed preamble.
This is the conditional exemption alternative, under which non-chemical
waste military munitions that otherwise meet the definition of
``hazardous waste'' are not regulated under RCRA as a hazardous waste
so long as they meet all of the conditions set forth in Sec. 266.205.
Today's rule also finalizes the conditional exemption approach for
transportation of waste munitions when shipped between military
installations in accordance with DOD standards.
The Agency is today postponing final action on the status of
military munitions left on closed or transferred ranges. This will
enable the Agency to thoroughly evaluate the numerous public comments
as well as the DOD Range Rule which is currently under development.
Instead of modifying the definition of ``on-site,'' as proposed,
the final rule revises 40 CFR Part 262 to exempt from the RCRA manifest
requirements shipments on right-of-ways on (or bordering) contiguous
properties under the control of the same person, where the property is
cut by right-of-ways. The title for today's rule also reflects this
change.
IV. Description of the Final Rule and Responses to Comments
This rule finalizes the proposed ``Military Munitions Rule:
Hazardous Waste Identification and Management; Explosive Emergencies;
Redefinition of On-Site'' (60 FR 56468, November 8, 1995). This section
explains the Agency's final action, based on the rationale presented in
the proposal and the Agency's review of the public comments and further
examination of the proposed options.
To facilitate the reader's review of this final rule and to
streamline the overall structure, this section also contains the
Agency's responses to the most significant comments after each of the
topics discussed. If a particular section does not contain a response
to comment section, then either the Agency did not receive comment on
this topic or it has chosen to place its response in the background
document entitled Military Munitions Rule Response to Comments
Background Document. This background document contains a complete
discussion of the Agency's responses to comments and can be found in
the docket for this rulemaking. This document provides a complete
record of the public comments followed by the Agency's responses. To
obtain a copy, please refer to the ``ADDRESSES'' section of this
preamble.
A. Description of Major Affected Parties
Since the primary focus of this final rule is military munitions,
the major regulated parties are the U.S. Departments of Defense,
Energy, and Transportation (U.S. Coast Guard) and the National Guard
(the inclusion of these is discussed below in section B). Even so,
various sections of the rule are expected to impact a number of other
groups, as well. The emergency response portions of this rule apply to
non-military munitions and explosives and non-military personnel as
well as military. In addition, the 40 CFR 264 and 265 subpart EE
standards for waste munitions and explosives are also available for use
by non-military
[[Page 6624]]
entities. The exemption from manifest requirements for transportation
along public roads on contiguous properties owned by the same person
that are divided by a public right-of-way, applies to non-military as
well as military wastes and properties. The rest of the proposed rule
was developed primarily for the military, based, in part, on the EPA's
review of RCRA and current military munitions management standards and
practices.
Response to Comments
In response to commenter inquiries and suggestions regarding the
applicability of the proposed provisions (primarily storage standards
and range standards), EPA is clarifying and modifying certain
provisions to accommodate some non-military situations. For example,
one commenter suggested that munitions or explosives controlled by
other government agencies, e.g., NASA, should be included within the
scope of the rulemaking if those agencies have comparable storage
standards. Other commenters suggested that EPA clarify that the final
rule applies to military contractors to the extent that they comply
with the appropriate DOD requirements. Further, for military
contractors, where the distinction between military munitions and
munitions produced for the private sector or other public sector
organizations is unclear (e.g., the same production lines and storage
units are used), the final rule should clarify that it also applies to
waste materials associated with munitions produced for the private or
public sector to the extent the management of these wastes also
complies with the appropriate DOD requirements. Several commenters
suggested that subpart EE should be made available for non-military and
private concerns.
In response to these comments, EPA has retained the subpart EE
standards in 40 CFR Parts 264 and 265, and has expanded their
availability to all munitions and explosives, not just military, in
order to make subpart EE available to facilities that store non-
military munitions or explosives and facilities that are not subject to
Department of Defense Explosive Safety Board (DDESB) jurisdiction.
Thus, commercial/private ventures that operate in compliance with DDESB
storage requirements and that also produce munitions for the private
sector that are stored in the same manner, as well as all commercial
and private ventures that store non-military munitions or explosives,
regardless of compliance with the DDESB standards, may avail themselves
of subpart EE for all such munitions/explosives wastes. Similarly,
other Federal agencies (e.g., National Aeronautical and Space
Administration (NASA), Federal Bureau of Investigations (FBI), and the
Bureau of Alcohol, Tobacco, and Firearms (BATF)) that store waste
munitions and explosives may also apply for a storage permit under
subpart EE. In those cases where the owner/operator's practices are
comparable or identical to the DDESB-prescribed practices, they could
expect to satisfy the subpart EE standards.
B. Scope, Applicability, and Definition of Military Munitions
The definition of ``military munitions,'' finalized in 40 CFR
260.10, establishes the scope for much of today's rule. In 40 CFR part
266, subpart M, today's rule establishes special procedures and
management standards for waste military munitions. The term ``military
munitions'' is defined to include all types of both conventional and
chemical ammunition products and their components, produced by or for
the military for national defense and security (including munitions
produced by other parties under contract to or acting as an agent for
DOD--in the case of Government Owned/Contractor Operated [GOCO]
operations). This definition clarifies, as it did in the proposal, that
military munitions may be under the control of the Department of Energy
(DOE), even though DOE is not usually considered to be within the
``military.'' DOE maintains the nation's nuclear arsenal for the
military, and maintains munitions and personnel to protect the arsenal.
The definition clarifies that military munitions may also be under the
control of the U.S. Coast Guard (Department of Transportation), and the
National Guard (which includes the State National Guard), as well as
the Department of Defense and its various components. The U.S. Coast
Guard and National Guard are generally considered to be within the
military. Chemical agents and munitions are given the same definition
as in 50 U.S.C. section 1521(j)(1).
For purposes of today's rule, the term ``military'' is also meant
to include DOE and the other organizations listed above, as well as
other parties under contract or acting as an agent for DOD, as long as
they are managing ``military munitions.'' Because the term ``military''
appears in the rule without the term ``munition,'' the term
``military'' has been defined in section 266.201 to make it clear that
these parties are included with the other organizations listed above in
the scope of the various provisions of today's rule.
The definition of ``military munitions'' lists a number of examples
of military munitions components, including propellants, explosives,
pyrotechnics, bulk chemical warfare and riot control agents, smokes,
incendiaries, warheads, cluster munitions and dispensers, and depth and
demolition charges; and product examples, including rockets, guided and
ballistic missiles, bombs, mines, grenades, mortar rounds, artillery
and small arms ammunition, torpedoes, and chemical munitions. The
definition excludes wholly inert items and improvised explosive
devices, for example, home made bombs (which are non-military) 1.
The definition also excludes nuclear weapons, nuclear devices, and non-
nuclear components thereof (including subparts of components) managed
under DOE's nuclear weapons program, which still must have necessary
sanitization 2 operations completed thereon under the requirements
of the Atomic Energy Act (AEA) of 1954. The phrase regarding
``sanitization'' has been added to the definition of ``military
munitions'' to make it clear that any non-nuclear components of nuclear
weapons or devices that do not require sanitization under the AEA are
``military munitions'' under today's rule. A phrase has also been added
to the end of the definition of ``military munitions'' to clarify that
upon completion of the sanitization of non-nuclear components (or
component subparts) of nuclear weapons or devices, the remaining
materials are considered ``military munitions'' that, thereafter, are
covered by subpart M of Part 266 of today's rule. Any component of a
nuclear weapon or device that is source, special nuclear, or by product
material as defined by the Atomic Energy Act of 1954, as amended, would
not be included in this definition, nor would they otherwise be subject
to RCRA requirements, since these materials are excluded from the
statutory definition of solid waste under section 1004(27).
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\1\ Improvised explosive devices, or IEDs, are non-standard
explosive devices made from either military or non-military
materials by non-military personnel.
\2\ Sanitization means the irreversible modification or
destruction of a component or part of a component of a nuclear
weapon, device, trainer, or test assembly as necessary to prevent
revealing classified or otherwise controlled information (e.g.,
unclassified information that is restricted from the standpoint of
export control because of its significance for nuclear explosive's
research, development, fabrication, or proliferation purposes) as
required by the Atomic Energy Act of 1954, as amended.
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EPA considered including in this rule all of the non-nuclear
components of
[[Page 6625]]
nuclear weapons which are managed by DOE under its responsibilities for
the Nation's nuclear weapons program as provided in the AEA of 1954
(U.S.C. section 2011 et seq.). As the Agency stated in its proposal, an
analysis of the legislative history associated with section 107
resulted in the conclusion that the FFCA does not contemplate the
inclusion of nuclear weapons within the scope of this rule. The
statutory language and legislative history of section 107 clearly
demonstrate the intent of Congress that EPA develop regulations that
address conventional and chemical munitions with no mention being made
of nuclear weapons or their components. Furthermore, EPA recognizes
that DOE's practices and procedures for the management of nuclear
weapons under the AEA, as well as the potential impacts on DOE
operations, are significantly different from those of DOD pertaining to
conventional and chemical munitions that are addressed in this rule. As
a consequence, EPA has concluded that non-nuclear components of nuclear
weapons are excluded from the definition of ``military munition'' until
all necessary AEA required sanitization has been completed. After
sanitization, EPA believes these materials are no different from other
munitions managed for national defense, and, therefore, are included
within the scope of this rule. Under today's rule, however,
conventional or chemical munitions that DOE produces or manages for the
military, or maintains and uses (including for training purposes) to
protect the nuclear arsenal, are ``military munitions'' under this
final rule.
Response to Comments
The Agency received a number of comments regarding the extent to
which this rule should or should not apply to other government agencies
and to the private sector, as well as the military. In addition to
military munitions under the control of DOD, DOE, the U.S. Coast Guard,
and the National Guard, the rule also applies to other parties (e.g., a
private company) producing or managing military munitions under
contract to, or as an agent for, DOD or these other agencies. Since it
is clear in the definition of ``military munitions'' that the
definition applies to all military munitions regardless of who is
managing them, no change has been made to the rule.
Comments were also received on specific terms in the definition or
the need for further clarifications to the proposed definition of
``military munitions.'' Some of these comments are reflected in the
final definition of ``military munitions'' at 40 CFR part 260.10. For
example, the final definition reflects the comments that ``mortar
rounds'' and ``artillery ammunition'' are more accurate than ``mortar''
and ``artillery,'' which are the weapons, not the ammunition. On the
other hand, ``napalm'' was not added to the definition because it is
covered by the term ``incendiaries.''
C. Separate CFR Part for Military Munitions
In the proposed preamble, EPA solicited comment on DOD's request
that EPA create a separate part or subpart for military munitions in
order to consolidate and simplify the regulations for the military,
based on the argument that this would increase understanding and
thereby enhance compliance. In today's rule, EPA has consolidated all
the requirements solely applicable to military munitions in 40 CFR Part
266 subpart M, with appropriate cross references. Requirements
applicable but not unique to military munitions (e.g., treatment and
disposal standards) are retained elsewhere and referenced in
Sec. 266.200(b) of subpart M. EPA recognizes that some of the cross-
references in subpart M are redundant with Sec. 266.200(b), but has
included them for clarity.
Response to Comments
The creation of a separate part for military munitions was
supported by several commenters, in addition to DOD. EPA agrees with
the commenters that there is a benefit to placing all requirements
pertaining to military munitions in the same CFR part, given DOD's
nationwide presence, and logistical and operational needs. The Agency
also agrees that consolidation of the standards for waste military
munitions could simplify integration by DOD of these rules with the
DDESB and the Service-specific requirements for the management of all
military munitions (including waste munitions). This consolidation
should facilitate DOD's compliance as well as State implementation and
oversight activities. In proposing this option, DOD recommended that
the standards be placed in 40 CFR Part 269 (which has already been
taken by another rulemaking proposal). In supporting this option, EPA
has decided to place it in 40 CFR Part 266, which is being used to
address special types of waste and waste management facilities.
D. Uniform National Standards
In the proposed preamble, EPA asked for comment on an alternative
that would have prohibited States from enforcing broader or more
stringent requirements with respect to military munitions. EPA has not
adopted this approach in today's rule.
Response to Comments
The Agency received an overwhelming response to this proposed
alternative. While EPA recognizes DOD's need for national consistency
in managing its munitions, including waste munitions, given DOD's
national defense mission, nation-wide presence, and logistical and
operational needs, the Agency has decided not to depart from the
standard RCRA approach in today's rulemaking. Therefore, today's rule
maintains the standard Federal-State relationship embodied in other
parts of the RCRA program. While EPA strongly encourages States to
adopt the terms of today's rule, it acknowledges that States may adopt
requirements with respect to military munitions that are more stringent
or broader in scope than the Federal requirements. See RCRA section
3006 and 3009.
E. When Military Munitions Become a Solid Waste
RCRA section 3004(y) requires EPA to identify when military
munitions become hazardous waste for purposes of Subtitle C of RCRA.
Under the RCRA regulations, materials are considered to be ``hazardous
waste,'' for regulatory purposes, if the following criteria are met:
(1) the material is a ``solid waste,'' as defined in 40 CFR 261.2, and
(2) the material meets the definition of ``hazardous waste'' in 40 CFR
261.3. Today's final action, in keeping with the original proposal,
focuses on the first point--clarifying when munitions become a solid
waste.
Under the existing provisions of 40 CFR 261.2 of the RCRA
regulations, ``solid waste'' is defined as ``discarded material.''
Section 261.2 (a) through (f) provides a detailed regulatory definition
of this term. In particular, Sec. 261.2(b) defines ``discarded
material'' as materials that are abandoned by being disposed of; burned
or incinerated; or accumulated, stored, or treated (but not recycled)
before or in lieu of being disposed of, burned or incinerated. Section
261.2(c) then describes under which circumstances recycled materials
are solid wastes (e.g.,used in a manner constituting disposal or
accumulated speculatively). Today's final action adds a new provision
in Sec. 261.2(a)(2) for military munitions that refers to Sec. 266.202,
which specifies how the regulatory term ``discarded material'' applies
to unused and used military munitions. The following sections of the
[[Page 6626]]
preamble discuss the regulatory definition of solid waste in the
context of three specific categories of military munitions: (l) unused
munitions, (2) munitions being used for their intended purpose, and (3)
used or fired munitions.
F. When Unused Military Munitions Become a Solid Waste
This rule finalizes proposed 40 CFR 261.2(g)(1)(i)-(iv) in 40 CFR
Part 266, subpart M, Sec. 266.202(b)(1)-(4). These paragraphs identify
the specific circumstances under which an unused munition is considered
to be solid waste for regulatory purposes. An unused military munition
becomes a solid waste when: (1) the unused munition is ``abandoned by
being disposed of, burned, or incinerated, or treated prior to
disposal''; (2) the unused munition is removed from storage for
purposes of disposal or treatment prior to disposal; (3) the unused
munition is deteriorated, leaking, or damaged to the point that it can
no longer be returned to serviceable condition, and cannot be
reasonably recycled or used for other purposes (except, of course,
recycling that is like ``discard,'' i.e., placement on the ground,
unless such placement is the result of use as a munition, or burning
for energy recovery); or (4) the munition has been determined by an
authorized military official to be a solid waste.
1. Section 266.202(b)(1)--Munitions That Have Been or Are Abandoned by
Being Disposed of, Burned, or Otherwise Treated Prior to Disposal
Section 266.202(b)(1), proposed as Sec. 261.2(g)(1)(i), specifies
that an unused munition becomes discarded, and, therefore, a solid
waste for regulatory purposes when it is or has been abandoned by being
disposed of (e.g., buried or landfilled), burned or incinerated, or
otherwise treated prior to disposal. Thus, open burning/open detonation
or incineration of unused munitions (except when done during an
emergency response or during training in use of a product) is regulated
under the RCRA Subtitle C standards for hazardous waste, including the
40 CFR Part 270 permit requirements (assuming the waste munitions meet
the Sec. 26l.3 definition of ``hazardous waste''). Similarly, unused
munitions that were buried or landfilled in the past are considered
abandoned, and, therefore, are solid waste, and, if hazardous, they
would become subject to applicable Subtitle C regulation when unearthed
and further managed. EPA emphasizes, as it did in the proposed rule,
that this provision will not bring use of military munitions for their
intended purposes--e.g., the firing of military rounds--within the
regulatory scope of RCRA. The use of a product for its intended purpose
(in this case a military munition), in EPA's view, is not a waste
management activity and does not constitute abandonment or disposal for
the purposes of Sec. 266.202(b)(1).
2. Section 266.202(b)(2)--Munitions Removed From Storage for the
Purposes of Treatment or Disposal
Section 266.202(b)(2), proposed as Sec. 261.2(g)(1)(ii), specifies
that a military munition becomes a solid waste for regulatory purposes
when it is removed from storage in a military magazine or other storage
area 3 for the purposes of disposal, burning, incineration, or
other treatment prior to disposal. Unused military munitions, in EPA's
view, are unused ``products'' comparable to unused commercial products
stored by manufacturers or their customers. Under RCRA, unused products
do not become ``waste'' until they become ``discarded material.'' EPA
believes that an unused product becomes ``discarded'' when an intent to
discard the material is demonstrated. However, ``intent,'' in many
cases, is difficult to discern; therefore, in this rule, EPA has
identified a clear test to determine the military's ``intent'' in the
case of unused munitions. Indeed, this issue is at the heart of the
purpose behind RCRA section 3004(y). Congress instructed EPA to develop
a ``fair and coherent approach'' to identify when military munitions
become a solid waste for Subtitle C purposes, in order to avoid
creating a situation where the courts must constantly interpret unclear
rules. [H.R. Conf. Rep. No. 886, 102d Cong., 2d Sess. 29 (1992)]. The
Agency believes it has chosen a clear, simple, enforceable test that is
similar to the approach the Agency has taken toward commercial chemical
products and fits the unique context of military munitions.
---------------------------------------------------------------------------
\3\ The term ``military magazine or other storage area'' refers
to all types of military munitions storage units allowed under the
DOD Explosives Safety Board (DDESB) standards (DOD 6055.9-STD),
which are mandatory for use by all DOD components, including outdoor
or open storage areas, sheds, bunkers, and earth-covered and above-
ground magazines.
---------------------------------------------------------------------------
DOD's complex system of accounting and management controls and the
numerous options available to DOD for reconditioning, reuse, and sale,
etc., make it difficult to determine at what point there is an ``intent
to discard'' a particular unused munition. DOD's classification of a
munition in one of the various DOD ``demilitarization'' accounts does
not, in EPA's view, constitute a decision to discard the material
because, pursuant to DOD's practices, such a classification does not
necessarily evidence an intent to discard that munition. Ammunition
classified as ``Condition Code H'' or as ``unserviceable,'' or in a
demilitarization account (such as the Army's Resource Recovery and
Disposition Account) for example, may be either returned to service
after further review, or in some cases after reprocessing; sold for
non-military purposes or to nations that maintain weapons that utilize
these munitions; or otherwise reused, reclaimed, or recycled. Even
usable munitions scheduled for disposal may be called back into
service, if needed, and thus may still also serve a deterrent purpose.
Therefore, in EPA's view, inclusion of a munition in a
``demilitarization'' account or a military determination that a
munition is ``unusable'' for its intended purpose does not, by itself,
constitute an intent to discard that munition.
For these reasons, today's rule does not define stored, unused
military munitions as ``solid waste'' subject to Subtitle C, except as
provided in paragraphs 266.202(b) (3) and (4). In EPA's view, the
appropriate point at which to consider most unused military munitions
to be a solid waste is when the material is finally removed from
storage for the purpose of disposal or treatment prior to disposal. In
practical terms, this provision means that storage of unused munitions
is, for the most part, not subject to RCRA regulation; however, once a
munition is removed from a magazine for the purpose of disposal or
treatment prior to disposal, it is a solid waste and is potentially
regulated under Subtitle C of RCRA.
EPA emphasizes that this provision will trigger RCRA coverage only
where a decision to treat or dispose of the munition has clearly been
made. In many cases, munitions classified as ``unserviceable'' are
removed from storage and sent to central arsenals for evaluation to
determine whether they are, in fact, unusable; whether they can be sold
for use; whether they can be reconditioned for use; whether they can be
recycled or processed for other uses; or whether they should be
disposed of. In these cases, the munition is not being shipped for the
purposes of treatment or disposal, but rather for evaluation. The
munition is to be handled as a waste only if no further evaluation
would take place and the decision to destroy has already been
made.4 Similarly, a
[[Page 6627]]
munition may be removed from storage for the purpose of reconditioning,
recycling or materials recovery without triggering RCRA.
---------------------------------------------------------------------------
\4\ EPA has taken a similar position in the case of
pharmaceuticals returned to the manufacturer. See letter from Sylvia
K. Lowrance, Director, EPA Office of Solid Waste, to Mark J. Schulz,
Pharmaceutical Services, Inc., Browning-Ferris Industries, May 16,
l991.
---------------------------------------------------------------------------
EPA's approach, as supported by many of the public comments, is
also based on the recognition that DOD has in place extensive storage
and transportation standards that, in providing for explosives safety
and security, are also protective of human health and the environment;
and that the military Services' safety record in storing and
transporting all munitions, including waste munitions, has been good.
EPA further believes that there is no compelling environmental or legal
reason to establish an earlier point at which unused munitions are a
solid waste, except in the case of the following: munitions that are
abandoned or disposed of in the past; munitions that are leaking,
deteriorated or damaged to the point they cannot be put into
serviceable condition, recycled, or put to other uses; or that have
been declared a waste by an authorized military official. Also, it is
clearer and, therefore, easier to implement an intent-based test where
a component of the determinant of DOD's intent is when the munition is
physically removed from storage for treatment or disposal rather than
solely trying to figure out when a decision by an appropriate authority
has been made. Even so, Sec. 266.202(b)(4), discussed in section 4
below, retains the more intent-based test for situations where a
decision by an authorized DOD official has clearly been made. More
importantly, however, to move away from the proposed point (when a
munition leaves storage) would significantly, and needlessly, increase
the regulatory burden not only on DOD, but also on regulators (for
enforcement and for permitting), and it could potentially disrupt DOD's
program for the management of military munitions. The Agency has
selected this final approach, in part, because it involves a minimum of
interference with the military's established and proven system for
managing unused munitions, and it will not conflict with the Services'
logistical needs or constraints. Munitions in the active,
demilitarization, and waste accounts are all managed under the same
storage and transportation standards, and they are often stored
together in the same magazines. Thus, the hazards posed by a stored
munition do not change when it is classified as ``unserviceable'' or
placed into a demilitarization account, or when it is scheduled for
treatment or disposal.
EPA has determined that the military's storage standards and
practices for munitions provide a degree of protection that is
comparable to, or better than, what RCRA regulation would provide. The
storage of military munitions is regulated under standards developed
and overseen by the Department of Defense Explosives Safety Board
(DDESB), as well as Service-specific standards, which must be at least
as stringent as the DDESB standards. As mentioned in the proposal, EPA
has reviewed the DDESB standards in detail and concluded that the
technical design and operating standards of the DDESB meet or exceed
RCRA standards in virtually all significant respects. A more detailed
discussion on the differences between the RCRA and DDESB standards may
be found in the preamble of the proposed rule (60 FR 56474), and in the
docket for this rule (A Comparison of RCRA Storage Requirements With
DOD Requirements for Storage of Military Munitions, EPA, October 31,
1995). Again, the DOD safety record for the management of all military
munitions, including waste munitions, has been good.
3. Section 266.202(b)(3)--Leaking or Deteriorated Munitions
Section 266.202(b)(2), discussed above, defines the most common
circumstances under which an unused military munition becomes a solid
waste--that is, when a decision has been made to dispose of or treat it
and it is removed from storage for transportation to a disposal site,
to a treatment unit, or to a storage unit at another facility prior to
treatment or disposal. EPA, however, recognizes (and States and
citizen's groups have pointed out) that under certain circumstances
military munitions in storage may deteriorate to a point where they are
no longer ``products'' in any meaningful sense and indeed may present a
potential safety hazard or environmental threat. To address these
circumstances, Sec. 266.202(b)(3), which finalizes proposed
Sec. 261.2(g)(1)(iii), defines an unused military munition as a solid
waste if it is ``deteriorated or damaged (e.g., the integrity of the
munition is compromised by cracks, leaks, or other damage) to the point
that it cannot be put into serviceable condition, and cannot reasonably
be recycled or used for other purposes.'' For example, if the
stabilizers in a propellant have deteriorated to the point at which
there is such a significant hazard of auto-ignition that the only
options available to DOD are treatment or disposal, that propellant
would be a solid waste. If, however, the propellant had not
deteriorated to this point and could reasonably be reclaimed, it would
not be a solid waste.
Similarly, leaking chemical munitions that cannot be put into
serviceable condition, and that cannot be reasonably recycled or used
for other purposes would also be a solid waste. A leaking chemical
munition that has been overpacked is so unlikely to ever be used,
repaired, or recycled, that EPA views such a munition as a solid waste
unless DOD already has in place an established repair or recycling
plan. Munitions in these situations are defined in today's rule as
solid waste. A leaking chemical munition or agent container (e.g., a
one ton chemical container), however, may be repaired and the material
still considered to be a product, not a solid waste, unless DOD
determines it is a solid waste under Sec. 266.202(b)(4).
4. Section 266.202(b)(4)--Munitions Determined by an Authorized
Military Official To Be a Solid Waste
Finally, proposed Sec. 261.2(g)(1)(iv) is finalized in
Sec. 266.202(b)(4) to make it clear that an authorized military
official may identify an unused military munition as a RCRA ``solid
waste.'' In this case, the designated waste munition (if ``hazardous''
or if designated by the generator as hazardous under Sec. 262.11) would
be subject to the hazardous waste regulations unless it is a non-
chemical munition that meets the terms of the conditional exemptions in
Sec. 266.203 or Sec. 266.205. For example, in 1984, the Department of
the Army determined that M55 rockets are hazardous waste. DOD made this
decision because the rockets' delivery system no longer existed, and
because DOD decided, for operational reasons, that the rockets would
not be used in military operations, and that they would not be sold or
reclaimed. These rockets are now being regulated as hazardous waste
under RCRA interim status or permit requirements. This final action
does not affect the waste status of these materials previously declared
``solid waste,'' and provides for similar future classification of
military munitions as solid or hazardous waste.
EPA emphasizes that Sec. 266.202(b)(4) requires a specific
declaration by an authorized military official that a munition is a
solid or hazardous waste. EPA expects that the declaration would be in
writing. As explained earlier, a decision under DOD's classification
systems that a munition is ``unserviceable,'' or the transfer of a
[[Page 6628]]
munition into a ``demilitarization'' account would not, by itself,
constitute a decision that a munition is a solid waste.
Response to Comments
DOD commented that EPA should designate unused military munitions
as solid wastes when certified for treatment or disposal and received
at the treatment or disposal unit. This would avoid the need for
compliance with RCRA storage and transportation requirements, and
permit modifications for off-site wastes (discussed below in section
M). For the reasons stated in the preamble for the proposed rule, EPA
continues to believe unused military munitions slated for treatment or
disposal should be classified as solid waste when they leave storage.
Some commenters suggested that munitions identified as
``unserviceable'' or ``Condition Code H'' or placed in a
``demilitarization account'' should be included as solid waste,
because, in the commenter's view, the designations express an intent to
discard these munitions. Other commenters took the opposite view, that
such designations do not express an intent to discard. Some commenters
further stated that EPA should develop a scheme, including possibly a
schedule, that would force DOD to evaluate and make determinations in a
timely manner that materials in the various ``unserviceable,''
``Condition Code H,'' ``demilitarization,'' or ``resource recovery and
disposition'' accounts are or are not ``solid waste,'' arguing that
there are tremendous volumes of materials in these accounts that DOD
should be compelled to act upon to reduce the amount in storage and,
thereby, reduce storage risks.
For the reasons discussed above and in the preamble to the proposed
rule, EPA does not agree that such materials should be classified as
solid waste (except those that are leaking, damaged, or deteriorated as
addressed in Sec. 266.202(b)(3)) nor that EPA should develop a scheme
to force DOD to make such determinations, especially given the DOD
storage standards, practices and record.
G. When Military Munitions Are Not a Solid Waste
Military munitions, under today's final rule, are not a solid waste
for regulatory purposes: (1) when a munition is used for its intended
purpose, which includes when a munition is used for the training of
military personnel and of explosives and emergency response
specialists; when a munition is used for research, development,
testing, and evaluation; and when a munition is destroyed during
certain range clearance operations; and (2) when an unused munition,
including components thereof, is repaired, reused, recycled, reclaimed,
disassembled, reconfigured, or otherwise subjected to materials
recovery activities.
1. Intended Use
Under RCRA, the use of products for their intended purpose, even
when the use of the product results in deposit on the land, does not
necessarily constitute ``discard,'' is not waste management, and is not
subject to regulation. For example, RCRA does not regulate the use of
pesticides by farmers, even though pesticides are discharged to the
environment during use (see 40 CFR 262.10(d) and 262.70). By the same
logic, RCRA does not regulate the use of dynamite or other explosives
during quarrying or construction activities. Similarly, EPA has
consistently held that the use of munitions (military or otherwise) for
their intended purpose does not constitute ``discard,'' and therefore
is not a waste management activity. Section 266.202(a)(1)(i)-(iii), in
finalizing proposed Sec. 261.2 (g)(3)(i)-(iii), clarifies this point
and provides specific examples of military activities that are excluded
from RCRA regulation.
a. Section 266.202(a)(1)(i)--Military training exercises. Section
266.202(a)(1)(i) clarifies that munitions used in the training of
military personnel and explosive ordnance disposal (EOD) personnel are
not regulated under RCRA. As discussed in the proposal (60 FR 56475),
EPA views such training, which could include training military
personnel in the destruction of unused propellant and other munitions,
to constitute the normal use of a product, rather than waste disposal.
For example, to ensure that military personnel can safely and
efficiently destroy propellant during wartime, military training
exercises involving artillery and mortar rounds typically include
training in the safe burning of unused propellant. In EPA's view, the
training of military personnel in the wartime use of munitions is a
legitimate use that lies outside the scope of RCRA. Such training
exercises typically follow detailed protocols for training military
personnel in the handling and burning of unused propellants.
b. Section 266.202(a)(1)(ii)--Weapons testing. Today's final rule
also clarifies that munitions used in weapons research, development,
testing, and evaluation programs are not regulated under RCRA. Testing
munitions, or using munitions to test a weapon system, to determine
their performance capabilities, clearly falls within the definition of
use of a material/product for its intended purposes. EPA also considers
the removal of a used or fired munition from a testing or training
firing range for further testing and evaluation to be within the
definition of use of a material for its intended purpose.
c. Section 266.202(a)(1)(iii)--Range clearance operations. The
military Services often conduct range clearance exercises as a result
of weapons testing or training at firing ranges. During these
exercises, military Explosive Ordnance Disposal (EOD) specialists clear
ranges of debris and unexploded ordnance, which are generally destroyed
on-site but may also be shipped off-range for treatment or disposal.
The frequency of these range clearance activities differs according to
the nature of the area within the range. For example, range areas known
as maneuver zones, where tanks, other vehicles, and personnel are
present are generally cleared more frequently than range impact areas.
EPA considers range management to be a necessary part of the safe use
of munitions for their intended purpose; thus, the range clearance
activity is an intrinsic part of training or testing. EPA also
considers this provision to be consistent with Congress' intent that
EPA take DOD safety requirements into account in developing regulations
under RCRA section 3004(y). [H. R. Conf. Rep. No. 886, 102d Cong., 2d
Sess. 29 (1992)]. Furthermore, from an environmental perspective, it
makes no difference whether ordnance explodes on impact or is
subsequently detonated by an EOD specialist. Therefore, this final rule
excludes range clearance exercises (i.e., the recovery, collection, and
on-range treatment or destruction of unexploded ordnance) at active or
inactive ranges from RCRA Subtitle C regulation.
Under today's rule, any debris or unexploded ordnance (UXO) shipped
off-range for treatment or disposal is a solid waste, and if a
hazardous waste, it would potentially be subject to the RCRA Subtitle C
requirements. However, it would not be a solid waste if shipped off-
range for further evaluation, unless the evaluation is related to
treatment and disposal.
Finally, today's rule clarifies that on-range disposal (e.g., the
recovery, collection, and subsequent burial or placement in a landfill)
of UXO is a RCRA-regulated activity under Subtitle C.
[[Page 6629]]
2. Section 266.202(a)(2)--Disassembly Operations
Proposed Sec. 261.2(g)(5) is being finalized in Sec. 266.202(a)(2).
Unused military munitions that are being repaired, reused, recycled,
reclaimed, disassembled, reconfigured, or otherwise subjected to
materials recovery activities are not solid waste. Therefore these
activities are not subject to RCRA, ``unless such activities involve
use constituting disposal, as defined in Sec. 261.2(c)(1) or burning
for energy recovery as defined in Sec. 261.2(c)(2)'' [these exceptions
have been added to today's rule for consistency with the proposed
preamble at 60 FR 56472 and 56477 and existing section 261.2(c)]. Of
course, the subtitle C regulations do apply if the munition is already
classified as a waste and the disassembly is carried out to prepare for
waste disposal. Materials recovery operations constitute a large part
of DOD's Resource Recovery and Recycling Program, which EPA strongly
supports and encourages. As discussed in the proposal preamble (60 FR
56472), this section is analogous to Secs. 261.2 (c) and (e) and 261.33
for ``commercial chemical products.'' Thus, the position EPA is taking
in today's rule on military munitions recycling or materials recovery
operations is similar to the position the Agency has taken with regard
to the management of commercial chemical products. Examples of
munitions recycling activities performed by DOD that would not be
regulated under RCRA can be found in the proposed notice to this final
action.
In the proposed rule, the Agency requested comment on one
particular type of munitions recycling activity: the processing of an
unused propellant or explosive for use as fertilizer. In the preamble
to the proposed rule, the Agency noted that this form of recycling
involves application of propellant or explosives to the land in lieu of
its originally intended use. This use as a fertilizer is regulated as a
waste management activity unless it meets the terms of an exemption. In
reviewing this issue, the Agency has determined the recycling of
propellants or explosives into fertilizer may be a permissible activity
under RCRA.
Specifically, the Agency notes that in this scenario, the unused
propellant or explosive would become a solid waste because it is being
recycled by being used in a manner constituting disposal. See 40 CFR
261.2(c)(1). Use constituting disposal is defined as application or
placement on the land in a manner that constitutes disposal, or use in
production of products that are applied to or placed on the land or are
otherwise contained in products that are applied to or placed on the
land. In the specific case in point, the propellant or explosive is
recycled by being used to produce a product (i.e., fertilizer) that is
applied to the land.
Since explosives or propellants exhibit the hazardous waste
characteristic of reactivity (see 40 CFR 261.23), those that become
solid wastes when recycled would also be a reactive hazardous waste
(hazardous waste code D003). In some limited cases, a propellant might
also exhibit the characteristic of toxicity (see 40 CFR 261.24),
primarily due to the presence of metals such as lead. In either case,
since the propellant or explosive is a ``recyclable material,'' the
recycling would be subject to 40 CFR 261.6--Requirements for recyclable
materials. See 40 CFR 261.6(a)(1). Under 40 CFR 261.6(a)(2)(i),
recyclable materials used in a manner constituting disposal are subject
to the requirements of 40 CFR Part 266, subpart C--Recyclable Materials
Used in a Manner Constituting Disposal.
Under 40 CFR 266.20(b) commercial fertilizers that are produced for
the general public's use that contain recyclable materials are not
presently subject to regulation provided they meet the treatment
standard under 40 CFR Part 268, subpart D, for each recyclable material
that they contain. In the case of propellants or explosives that
exhibit the characteristic of reactivity (i.e., D003 wastes), the
treatment standard under 40 CFR 268.40(e), as set forth in the table,
``Treatment Standards for Hazardous Wastes,'' is deactivation (i.e.,
rendering the propellant no longer reactive as defined under 40 CFR
261.23), plus treatment of all underlying hazardous constituents (as
defined in 40 CFR 268.2(i)) to meet the universal treatment standards
(UTS), found in 40 CFR 268.48. In the case of a propellant or explosive
that also exhibits the toxicity characteristic (TC), in addition to
meeting the requirements for the D003 waste code, the waste would also
have to meet the appropriate treatment standard for the TC waste code
as set out in 40 CFR Part 268, subpart D.
Thus, the use of an unused explosive or propellant as an ingredient
to produce commercial fertilizer would be exempt from regulation under
RCRA, provided that the fertilizer: no longer exhibits the
characteristic of reactivity; has had all underlying hazardous
constituents treated to meet the UTS; and has met the treatment
standards for other applicable hazardous waste codes.
EPA notes that Sec. 266.202(a)(2) codifies EPA's interpretation of
how its current recycling requirements apply to disassembly and
recycling of unused military munitions. The same principles apply to
the recycling of commercial ammunition.
It is important to note, however, that once the materials recovery
activities are completed, any remaining residuals requiring disposal or
treatment prior to disposal are solid wastes which, if hazardous, would
be subject to the subtitle C regulations.
Response to Comments
The Agency received numerous comments regarding the proposed rule
provisions identifying when unused munitions are not a solid waste. The
major comments focused on the following topics: munitions used for
their intended purpose, in particular, munitions that remain on the
ground at firing ranges and munitions used for training in the
destruction of munitions; the scope of military personnel training
regarding minimization of the quantity of unused propellant resulting
from military training; potential health effects of open burning;
minimum open burning standards; the potential for ``sham'' training
exercises for purposes of disposal; regulation of residue/ash from open
burning/open detonation (OB/OD) activities; regulation of the
destruction and cleanup of munitions during range clearance activities;
disassembly of rockets, missiles, or torpedoes (which carry the
munitions as propellant or warhead) as it pertains to treatment;
applicability of scrap metal exemptions to munitions; and reuse of
explosives as fertilizers (discussed above).
Intended Use. With respect to the use of munitions ``for their
intended purpose,'' the Agency received comments that disagreed with
various aspects of the Agency's interpretation; in particular, that the
use of munitions at firing ranges and training in the destruction of
unused propellants are ``intended use'' activities. Commenters stated
that munitions that impact the ground have ceased to be used for their
intended purpose, and that their use cannot be compared to the use of
pesticides since these products continue their intended purpose after
they are applied to the ground.
Commenters also suggested that, because of the potential impact of
munitions on the environment, EPA should consider designating munitions
on the ground as solid waste. But even the proponents of this view felt
the full current RCRA regulatory scheme (i.e., normal RCRA permitting)
is
[[Page 6630]]
inappropriate for military ranges, suggesting that EPA could use a
streamlined permit-by-rule approach with limited provisions, especially
at active ranges. Commenters suggested the following limited standards
for ranges (at least for active ranges) so as not to interrupt range
activities related to the military mission: location standards (i.e.,
for wetlands, surface waters, and proximity to populations); off-range
monitoring (at least surface and ground waters), remedial responses to
off-range migration, and range closure plans.
Several commenters stated that field sampling had indicated
contamination on ranges. The bulk of the reports that EPA has reviewed,
including those cited by commenters, do not provide enough information
to conclude that ground or surface water contamination does or does not
result from fired munitions on ranges. This is partly because the
studies or reports do not adequately document, for example, increases
in contaminant concentrations over ambient concentrations (i.e.,
background); or that the source was, indeed, fired munitions; or
whether it might be some other source on or off range, such as spills
or landfills. There are two exceptions: lead and white phosphorous from
fired munitions on ranges have been adequately documented to conclude
that these materials may contaminate surface water and affect fish and
fowl. Although the lead contamination cases involved non-military
ranges, the potential for contamination at military ranges where lead
munitions are fired clearly exists. The white phosphorous case was a
military range.
In response to these comments, EPA continues to interpret the RCRA
Subtitle C regulations as not extending to products whose use involves
application to the land, or where use necessarily entails land
application, when those products are used in their normal manner. In
EPA's opinion, the use of munitions does not constitute a waste
management activity because the munitions are not ``discarded.''
Rather, the firing of munitions is within the normal and expected use
of the product. This is the same position EPA took regarding the
discharge of ammunition and expended cartridges in an interpretive
letter by Sylvia Lowrance, Director of EPA's Office of Solid Waste, to
Jane Magee, Assistant Commissioner for Solid and Hazardous Waste
Management, Indiana Department of Environmental Management, Sept. 6,
1988, addressing the issue of the ``applicability of * * * RCRA * * *
regulations to shooting ranges.'' This position was also repeated in
the proposed rule for Corrective Action for Solid Waste Management
Units at Hazardous Waste Management Facilities, 55 Fed. Reg. 30798,
30809 (1990). At the request of the United States Court of Appeals for
the Second Circuit, EPA filed a brief as Amicus Curiae in Connecticut
Coastal Fishermen's Assoc. v. Remington Arms Co., et al, (August 28,
1992) discussing the Agency's views on whether lead shot and clay
target debris deposited on land and in water in the normal course of
skeet and trap shooting is ``solid waste'' under RCRA. In that brief,
EPA repeated its position that regulatory jurisdiction does not apply
to products that are deposited onto the land in their ordinary manner
of use.
EPA sees no compelling reason to alter this longstanding
interpretation of its regulatory definition of the term ``solid
waste.'' Nothing in the language or legislative history of RCRA section
3004(y) suggests that Congress intended or desired that EPA adopt a
different interpretation of ``solid waste'' with respect to military
munitions.
Moreover, EPA disagrees with one commenter's proposition that
munitions are a ``solid waste'' when they hit the ground because they
have no further function, unlike pesticides, which continue to have a
function on the ground. EPA's interpretation focuses on whether a
product was used as it was intended to be used, not on whether the
purpose of the product is to perform some function once on the ground.
For example, the use of explosives (e.g., dynamite) for road clearing,
construction, or mining does not trigger RCRA regulation, even though
any residuals on the ground serve no further function.
Therefore, the Agency is maintaining its position that munitions
that are fired are products used for their intended purpose, even when
they hit the ground since hitting the ground is a normal expectation
for their use. However, today's rule specifies that fired military
munitions that land off-range become a statutory solid waste at a
certain point, potentially subject to RCRA remedial authorities. This
point is discussed further in section H which addresses military
munitions at ranges.
Training. The Agency received a number of comments regarding EPA's
view that military munitions used in the training of military personnel
are not a solid waste. A number of commenters raised concerns regarding
the training of military personnel in the burning of unused propellant
increments resulting from artillery and mortar training. Commenters
pointed out that the amount of unused propellant destroyed may equal or
exceed the propellant actually used in firing the weapons, and that
this is contrary to the Agency's and RCRA's waste minimization goals.
EPA agrees that the quantities of unused propellant that is burned may
equal or be more than that used in firing weapons since such
propellants are generally packaged in either five or seven bags per
canister, and often the size of a training ranges prohibits the use of
all the bags. EPA has concluded, however, that there is merit to DOD's
argument that to minimize the chances for confusion and error, military
training should duplicate to the maximum extent possible the conditions
encountered by military personnel in combat. Using the actual canisters
and bags (which are of different sizes) that would be used in time of
war, and training the personnel in the safe management and expedient
destruction of unused propellant is a legitimate part of training in
the use of munitions.
Commenters also raised concerns regarding the RCRA status of sites
used for training in the burning of unused propellant bags.
Specifically, the commenters cited elevated incidences of lung and
other cancers that they argued were possibly due, in part, to military
burning practices. The Agency has included in the docket for this rule
a number of studies and reports on the potential impacts from open
burning emissions. A number of commenters expressed concern that open
burning of unused propellant, as it pertains to military personnel
training, contaminates the environment. Concerns of the public
particularly focused on air emissions, although they also mentioned the
burning of propellant directly on the ground could lead to soil (and
possibly groundwater) contamination. On the other hand, studies and
reports provided to the Agency offer contradictory conclusions. These
reports are included in the Docket.
In any case, as a precaution, and in response to these concerns,
the Services often conduct the burning in lined trenches. Also, in some
cases, this precaution has been required by State regulators. In other
cases, local opposition to burning of unused propellant has led
individual installations to abandon the practice (and in at least one
case to abandon training altogether), or to reduce the number of
increments taken into the field. Commenters suggested that EPA require
such lined units and perhaps monitoring and closure plans for these
training units to ensure environmental
[[Page 6631]]
protection, perhaps through a permit-by-rule. Because EPA has
determined that these are product use activities, EPA does not believe
that RCRA should be used to restrict unit locations or compel unit
designs.
Some States and citizens groups argued that such burning could lead
to ``sham'' training, when the primary purpose is really waste
disposal. Commenters suggested that EPA establish criteria for training
in the destruction of unused propellant bags to assure against ``sham''
training exercises, including documentation of the training exercises
and a minimum three year record retention time for all such training
documentation. The Agency has retained the proposed approach regarding
the training of military personnel in the safe burning of unused
propellants because, as mentioned above, EPA has determined that (given
the unique military activities and the need for training) this is an
aspect of product usage and, therefore, should not be regulated under
RCRA. On the other hand, the Agency reaffirms here what was said in the
preamble of the proposed rule and earlier in today's rule, that, to
assure against sham training, regulators may look for the existence and
use of training manuals, the presence of military trainees, and
documentation of training activities as evidence of legitimate
training. Records showing evidence of training could include, for
example, the number of personnel trained, the date and time of
training, military personnel attendance lists, and the amount of
propellant used in training. EPA believes that, should activities in a
specific training exercise be suspect, such procedures and
documentation would provide evidence that the activity is for training
purposes rather than waste disposal.
One commenter requested that the Agency provide a definition of
``troop'' to include DOE security personnel, and DOE and DOD
contractors. The Agency has decided not to add a definition of
``troop,'' but to clarify that the terms ``troop'' and ``personnel'' as
used in today's rule refer not only to DOD personnel, but also to DOE,
Coast Guard, National Guard, and contractor personnel who are being
trained in the use of munitions or explosives. In response, the Agency
has deleted reference to ``troops'' in preference to the term
``military personnel,'' and has added a definition for ``military'' to
the Sec. 266.201 definitions.
Other comments received regarding unused propellant bag training
expressed concern over the lack of a regulatory regime over the ash or
residue left behind after the training, and that this ash could present
an environmental hazard. These commenters asserted that this ash would
not be listed as hazardous waste, but might exhibit a characteristic or
contain hazardous constituents, although no data were submitted. As
mentioned previously, the military often conducts these propellant
burning exercises within a structure that would contain residual ash,
which is then disposed of according to RCRA requirements, if hazardous.
The Agency emphasizes that RCRA 7003 authority could be applied to this
ash when the OB/OD training site or area is closed or at any time that
it might present an imminent and substantial endangerment.
A commenter suggested that these OB/OD training areas be regulated
under the same guidelines as fire fighting training pits that require
permits to operate. The Agency wants to make clear that the use of fuel
in fire training does not require a RCRA permit, unless the fire
training were to use waste fuel. Then the burning would be considered
RCRA disposal rather than the use of a product for its intended
purpose. The training of military personnel in the use of military
munitions, such as training in the proper techniques to burn
propellant, uses standard, unused propellant. The Agency believes it is
a reasonable interpretation in the context of military training to view
training in how to burn unused propellant safely as not training in
waste disposal, but rather as part of necessary training in product
usage.
Range Clearance. With respect to on-range clearance exercises, the
Agency received a broad range of comments. Some commenters requested a
clarification of certain range management activities. In response, the
Agency has reviewed a host of activities. In particular, the collection
of fired bullets, including those that contain lead, at indoor firing
ranges, is considered by EPA to be range maintenance and not hazardous
waste management activities within the scope of today's rule. EPA
cautions, however, that although on-range collection may not be a waste
management activity, the removal of such materials from the range may
result in the generation of a solid waste, and the off-range storage
and subsequent treatment or disposal of such waste may be subject to
RCRA regulation. EPA notes, however, that lead may be recycled under
the scrap metal exemption of 40 CFR 261.6(a)(3)(ii).
Commenters asked if range clearance activities at transferring,
closed, or transferred ranges were also considered within the scope of
proposed Sec. 261.2(g)(3)(iii) since only active, inactive, and closing
ranges were listed. EPA did not generally intend to include these range
clearance activities within the scope of this proposed section. Under
the proposal, such range clearance activities would not be considered
within the scope of ``intended use.'' EPA has modified the proposal
slightly in the final rule, at the request of one State, by dropping
the term ``closing.'' EPA made this change because, in its view, ranges
fall into one of three categories: active, inactive, and closed. A
closing range is merely an ``inactive'' range in the process of
becoming a ``closed'' range. Similarly, the rule does not include
references to ``transferring'' or ``transferred'' range since these are
all either ``active,'' ``inactive,'' or ``closed.'' To help clarify
this provision, EPA has defined, in Sec. 266.201, the terms ``military
range,'' ``active range,'' and ``inactive range.'
A commenter raised the concern that the inclusion of the word
``contaminants'' with UXO in the context of ``intended use'' in range
clearance operations in the proposed rule could lead to a broadening of
scope to cover many remediation activities not directly associated with
unexploded ordnance and munitions debris. The commenter requested that
the Agency clarify whether range clearance activities may encompass a
variety of range remediation activities related to munitions
contamination and media cleanup (not limited to UXO and debris). It was
not, and is not, the Agency's intention to broaden the interpretation
of the term ``intended use'' as it applies to range clearance or
management activities by the inclusion of the term ``contaminants'' in
the regulatory language. In fact, the proposed preamble clarified the
original intent by using the terms ``UXO'' and ``debris'' when
discussing the range clearance activity. However, in today's rule, the
Agency has used the term ``munitions fragments'' instead of either
``contaminants'' or ``debris'' to more closely reflect the Agency's
intent to limit this provision to the recovery of munitions fragments
(in addition to the recovery and treatment of UXO). This provision does
not apply to the remediation of other contaminants (besides munitions
fragments or debris), including non-munitions related contaminants, or
media (e.g., soil, surface water, or ground water). Also, the rule
clarifies that this range clearance provision does not apply to the
management of UXO or munitions that were buried on a range when the
[[Page 6632]]
burial was not a result of product use, nor to the burial (i.e.,
landfill) of recovered UXO or debris/fragments on a range.
Disassembly. A few commenters requested the Agency clarify the
distinction between the terms ``destruction'' and ``disassembly,''
especially in the context of RCRA permitting and ``rendering a munition
safe.'' The term destruction in the military munitions context
generally means thermal treatment processes such as incineration, open
burning, and open detonation, but could also include chemical treatment
processes. Such destructive processes usually require a RCRA permit,
unless exempted under the emergency response, range clearance, or
intended use provisions in today's rule. The term ``disassembly,'' in
the context of military munitions, generally refers to a mechanical or
physical process associated with dismantling unused munitions (i.e.,
products). The Agency generally does not consider disassembly to be a
waste treatment process requiring a RCRA permit, especially when the
disassembly is used in materials recovery activities, which is often
the case. EPA views both ``destruction'' and ``disassembly'' as ways to
``render a munition safe,'' making both eligible for exemption from
RCRA permitting in the emergency response context.
A commenter questioned whether the Department of Energy disassembly
procedures are covered by Sec. 266.202(b)(5). Since this section
applies to military munitions, it also applies to DOE when DOE manages
military munitions.
H. Military Munitions on Closed and Transferred Ranges
EPA has decided to postpone final action on proposed 40 CFR
261.2(g)(4)(i). This proposed provision would have identified a
military munition left on a closed range or a range transferred from
military control as meeting the statutory definition of solid waste in
RCRA section 1004(27), potentially subject to RCRA corrective action or
section 7003 authorities, until DOD regulations were promulgated
governing the cleanup of munitions on closed or transferred ranges.
EPA's decision to postpone action on this section of the proposal
is based in part on comments the Agency received on this issue and in
part on the fact that DOD has not yet issued the range cleanup rule
currently under development (the ``DOD Range Rule''). Many commenters
questioned EPA's legal authority to defer RCRA coverage in favor of DOD
regulations governing the cleanup of closed and transferred ranges. EPA
will conduct further analyses of the comments and of the final DOD
regulation governing the cleanup of munitions on closed and transferred
ranges (including an assessment of whether the DOD Range Rule is
adequately protective); based on these analyses, the Agency will reach
a final decision on this issue. If either DOD fails to proceed with the
range rule or EPA finds that the range rule does not adequately protect
human health and the environment, EPA will be prepared to address this
issue under Federal environmental laws.
EPA believes that this interpretative provision identifying when a
discharged munition on a range becomes a solid waste under RCRA section
1004(27) is not a required part of the rulemaking mandated in RCRA
section 3004(y) and, therefore, is not subject to that section's
statutory deadlines. EPA interprets RCRA 3004(y) as only requiring the
Agency to identify the circumstances under which military munitions
become subject to the regulatory scheme for identified or listed
hazardous waste promulgated under Subtitle C. The language of RCRA
section 3004(y) fully supports EPA's interpretation. Section 3004(y)
specifically requires EPA to identify ``when military munitions become
hazardous waste for purposes of this Subtitle.'' Proposed
Sec. 261.2(g)(4)(i) would have identified when a discharged munition
becomes a statutory solid waste, but would not identify when that
discharged munition becomes subject to Subtitle C regulation.
Response to Comments
EPA received numerous comments on the proposed regulations for
closed and transferred ranges. Since this part of the rule is not being
finalized in today's rule, these comments will be addressed at the time
EPA takes final action.
I. When Used or Fired Military Munitions Become Solid Waste, Including
Military Munitions That Land Off-Range
Proposed Sec. 261.2(g)(2) has been revised and finalized in
Sec. 266.202(c). This section clarifies that used or fired munitions
are solid wastes when they are removed from their landing spot and then
either (1) managed off-range--i.e., when transported off-range and
stored, reclaimed, treated, or disposed of, or (2) disposed of (i.e.,
buried or landfilled) on-range. In both cases, once the used or fired
munition is a solid waste, it is potentially subject to regulation as a
hazardous waste. For example, former defense installations no longer
under military control (i.e., Formerly Used Defense Sites or FUDS)
sometimes contain unexploded ordnance or munitions fragments. Used or
fired munitions removed from their landing spot and transported off-
range would have to be handled under RCRA Subtitle C (if they are
``hazardous''), except in emergency situations. Similarly, used or
fired munitions resulting from military research or training exercises
at locations other than ranges (e.g., in testing laboratories) would be
considered solid waste when removed from the site of use and sent to
treatment or disposal. Section 266.202(c) does not finalize one aspect
contained in proposed Sec. 261.2(g)(2): that used or fired munitions
that are recovered and then treated on range at a closed or transferred
range (unless the transferred range is still in active use as a range)
would be a solid waste potentially subject to RCRA subtitle C
regulations. This aspect of the rule is being postponed along with the
closed and transferred range aspect discussed in section H of this
preamble, because these aspects are so inter-related and they are both
being addressed under DOD's range rule.
Today's rule finalizes proposed Sec. 261.2(g)(4)(ii) in
Sec. 266.202(d), which provides that munitions that land off range that
are not promptly rendered safe (if necessary) and/or retrieved, are
statutory solid wastes under RCRA section 1004(27), potentially subject
to RCRA corrective action or section 7003 authorities. Today's final
action is based on the view that a failure to render safe and retrieve
a munition that lands off range would be evidence of an intent to
discard the munition, just as the failure to respond to a spill of a
hazardous material could be evidence of an intent to discard.
``Rendering safe'' might include disarming action to prevent an
explosion as well as destruction of the ordnance. If remedial action
were infeasible--for example, the off-range munition wastes could not
be removed because the munition was deeply buried, located in
inaccessible terrain or could not be located--the operator of the range
would be required to maintain a record of the event, including the type
of munition that was fired off range and its location (if known), for
as long as any threat remains.
Response to Comments
Munitions Landing Off-Range. Several commenters expressed concern
over the relative merits of not addressing munitions on an active range
while addressing munitions that land off a range. The Agency views
these as distinctly different situations. As discussed previously, the
Agency views
[[Page 6633]]
the firing of munitions that land on active ranges as product use. On
the other hand, munitions that land off range that are not promptly
rendered safe and/or retrieved, are more like a spill that is not
promptly remediated. EPA would consider these munitions to be discarded
or abandoned, or disposed of (i.e., statutory solid waste potentially
subject to RCRA corrective action or section 7003 authorities, and if
removed for subsequent management, potentially subject to the Subtitle
C regulatory requirements). A munition on an active range is where it
is intended and expected to be, and it is in a controlled environment.
As such, it is more effectively controlled or managed than a munition
that has landed off-range where it normally wouldn't be expected to be.
J. Waste Materials Derived From Munitions Manufacture
As stated in the proposed preamble, EPA does not believe that
military munitions manufacture raises any new special regulatory issues
that need to be addressed by this final rule. One issue was raised in
the public comments pertaining to recycling of secondary materials, but
this issue is not unique to the military. As a result, the Agency has
decided that any rule changes to facilitate recycling of secondary
materials will be considered in the context of a broader, separate
rulemaking. Therefore, this final rule makes no changes to the existing
rules regarding waste materials derived from munitions manufacture.
K. Chemical Munitions
In the proposal, EPA solicited comment on whether munitions
scheduled for destruction by international treaty or Congressional
action should be classified as solid waste. The Agency continues to
believe, for reasons discussed in the proposal (60 CFR 56485), that
these actions should not, as a general matter, be interpreted as a
decision to discard a munition. Among other considerations, the
proposed disarmament conventions and Congressional directives do not
declare these items to be waste, nor do they totally prohibit their use
or require their total destruction.
Response to Comments
Regarding chemical agents and munitions, some commenters supported
the proposal stating that any action that would delay the destruction
of chemical agents and munitions is contrary to the protection of human
health and the environment, and that in their view the proposal would
not cause such a delay. These commenters stated they would oppose
alternatives that would cause delays. Other commenters, however,
suggested that EPA should complete a thorough review of alternative
treatment/destruction technologies before allowing DOD to proceed with
the current incineration approach. EPA notes that Congress has
addressed the issue of developing alternative treatment or destruction
technologies through legislation. For a more detailed discussion of
this issue, see section M.2.b below. A few commenters supported the
proposed position that chemical agents and munitions do not become
solid waste solely by being slated for destruction by an Act of
Congress or treaty. Some commenters took the opposite view.
In developing today's rule, EPA continues to believe the position
discussed in the proposed rule. Disarmament conventions and
Congressional directives to demilitarize a weapons system should not be
interpreted as a decision to discard a munition. In many cases, the
provisions in the treaties or conventions do not equate to a decision
to discard a specific munition in that they allow, for example, for
implementation schedules, retaliatory use, and very specific
verification procedures that do not equate to the process established
under RCRA.
In the context of chemical agents and munitions, some commenters
objected to any alternative that would prohibit States from being more
stringent. As discussed elsewhere in this preamble, EPA agrees and has
not adopted this State pre-emption approach.
A few commenters identified the need for listing chemical agents as
hazardous waste, stating that these are some of the most lethal
materials in existence, yet they are not listed nor (in the commenter's
view) are they characteristic hazardous wastes under EPA's RCRA
regulations. One commenter stated that the Army has taken the position
that the explosives (e.g., the explosive component of the M55 rockets)
are a hazardous waste, but the agent itself is not. This becomes a
potential regulatory problem (1) when in the demilitarization process
the agent is separated from the explosives, or (2) for any bulk agents.
In response, EPA notes that five of the eight chemical stockpile
States have listed the various chemical agents as hazardous, and a
sixth has done so through a consent order with DOD regarding the
stockpile facility in that State. Moreover, based on EPA's technical
review associated with this rule, the Agency believes that the chemical
agents and munitions in the military stockpile subject to the
requirement for destruction contained in 50 U.S.C. 1521 exhibit at
least one of the characteristics identified in 40 CFR Part 261, subpart
C. In addition, DOD has publicly committed to the destruction of these
chemical munitions and their agents at RCRA permitted facilities, and
is seeking RCRA permits for all their chemical demilitarization
facilities. Based on these facts, it is not the Agency's current intent
to list, as hazardous waste, these chemical agents when they become a
solid waste.
A few commenters felt that emergency responses involving chemical
munitions, especially those involving non-stockpiled chemical
munitions, should not be exempted from the RCRA emergency permit
requirements. The Agency agrees that chemical munitions should receive
close oversight. EPA has evaluated DOD's statutory requirements and
standard operating procedures (SOPs) and has determined that the
emergency response procedures spelled out in today's final rule, in
conjunction with the DOD statutory requirements and SOPs, are
sufficiently protective for chemical munitions responses. For example,
the transport and destruction of a lethal chemical agent are regulated
by 50 U.S.C. 1512 and 1512a, requiring special approvals by the
Secretary of Defense and the Secretary of Health and Human Services
prior to either transport or destruction. Further, Congress and
affected State governors must be notified prior to any such destruction
or transportation. Thus, the standards for emergency responses in
today's rule--including the exemption for immediate responses and the
requirements for emergency permits--would apply in the same way to
conventional and chemical munitions. (See discussion in section P,
emergency responses.)
Regarding comments received on the storage of chemical munitions,
see the Response to Comments portion of section M of this preamble.
L. Generator and Transporter Standards
This final action makes two changes to the RCRA generator and
transportation requirements as they pertain to emergency responses to
munitions or explosives emergencies and to waste military munitions.
First, Secs. 262.10(i) and 263.10(e) clarify that persons
responding to emergencies (immediate threats from explosives and
munitions) are not subject to RCRA generator and transportation
requirements. This provision codifies a long standing EPA policy that
applies to all explosives and munitions emergency responses
[[Page 6634]]
(military and non-military) as well as to all conventional and chemical
military munitions emergency responses. This is discussed further in
section P entitled ``Emergency Responses.''
Second, proposed Secs. 262.10(i) and 263.10(d) are being finalized
in Sec. 266.203 to conditionally exempt from RCRA hazardous waste
generator and transporter requirements (including RCRA manifest
requirements and the container marking requirements of Sec. 262.32(b))
waste non-chemical military munitions that are shipped from a military-
owned or -operated facility to a military-owned or operated TSDF in
accordance with the DOD shipping controls for military munitions (i.e.,
tracking procedures). This provision applies to waste munitions that
are not chemical munitions or chemical agents and that are transported
by commercial carriers who are under contract with the military and
have signed a contractual compliance agreement with the Military
Traffic Management Command, and who operate under the DOD system of
shipping controls for military munitions. EPA is not extending the
conditional exemption in Sec. 266.203 to persons transporting
``military munitions'' who are not required to comply with the DOD
military munitions shipping controls (e.g., DOE or other non-DOD
Federal agencies or their contractors). This provision also does not
apply to the transport of waste military munitions to a commercial
treatment, storage, or disposal facility. Finally, this provision would
not apply to waste munitions shipped by the military but not under
DOD's shipping controls designed for its munitions inventory.
This aspect of the conditional exemption does not apply to
treatment, storage or disposal regulation, and is available only so
long as all conditions in Sec. 266.203(a)(1) are met. EPA's decision to
adopt the conditional exemption approach for identifying when waste
military munitions that are transported become subject to RCRA's
transportation requirements for hazardous waste is based on EPA's
conclusion that it is not necessary to regulate a waste as hazardous
where the wastes are already adequately regulated, and reasonable
mismanagement scenarios have thereby been controlled.
The conditional exemption approach and the legal basis supporting
it is explained in greater detail below in section M.1, entitled
Conditional Exemption For Waste Military Munitions In Storage.
In deciding to finalize the conditional exemption approach for the
transportation of waste military munitions, EPA primarily considered
the existing DOD shipping controls as well as DOD's munitions
transportation safety record. The DOD shipping standards and controls
provide a ``closed-loop'' system similar to the RCRA manifest. These
controls include the following forms: Government Bill of Lading (GBL)
(GSA Standard Form 1109); requisition tracking form DD Form 1348; the
Signature and Talley Record (DD Form 1907); Special Instructions for
Motor Vehicle Drivers (DD Form 836); and the Motor Vehicle Inspection
Report (DD Form 626). The DOD Standards, giving instructions on the use
of these forms are DOD Regulation 4500.9-R--Defense Transportation
Regulation, Part II, Cargo Movement and DOD Directive 6055.13--
Transportation Accident Prevention and Emergency Response Involving
Conventional DOD Munitions and Explosives. ``A Report to Congress On
the Adequacy of Department of Defense Safety Standards for
Transportation of Hazardous Materials'' (1989) provides a summary of
these controls. These documents are available in the public docket for
today's rule.
Features of the DOD transportation system include pre-trip routing
plans, safe havens and secure holding areas for vehicles experiencing
difficulties or for overnight storage, safe haven hotline, satellite
motor surveillance and tracking, shipper seals, dual driver protective
and escort services, firefighting instructions, and electronic
notifications/communications between shipper, carrier, and receiver.
DOD munitions shipments also comply with the DOT hazardous
materials transportation standards, which address packaging, labeling,
marking, placarding, emergency response, training, and shipping
documentation [49 CFR 100-179, 350-399]. DOD has made the DOT standards
mandatory for the transportation of military munitions (e.g., DOD
4500.9-R Defense Transportation Regulation Part II, Cargo Movement,
April 1996). EPA has reviewed these DOD documents and concludes that
the resulting procedures, in conjunction with the applicable DOT
standards, provide an equivalent level of protection of human health
and the environment as the requirements of the RCRA manifest system.
As a result of these and other controls, DOD's munitions
transportation safety record is good. DOD makes approximately 45,000
shipments of military munitions and explosives annually, including
shipments for demilitarization (of these shipments, only a very small
percentage would involve waste munitions, as defined in today's rule).
According to the U.S. Army Technical Center for Explosives Safety's
Explosives Safety Information Database and the DDESB's Historical
Accident Database, in the past 20 years, there have been 18 mishaps
involving commercial carriers of military munitions in the continental
U.S. Of these, only six accidents resulted in fires or detonations that
affected all or part of the munitions cargo itself. In each case, the
accident was attributed to a vehicular malfunction or accident, and not
to the munitions cargo.
The DOD shipping controls that make up the Sec. 266.203 conditions
are those adopted by DOD as of November 8, 1995. EPA understands that
DOD may change its shipping controls from time to time based on new
information. However, in light of the fact that DOD has a statutory
obligation to ensure proper transportation of munitions, and to prevent
hazardous conditions from arising that would endanger life and property
(see 10 U.S.C. Sec. 172), EPA does not believe that DOD would pursue
any amendments that would lessen protection of human health and the
environment. In fact, DOD continues to develop stricter shipping
controls to assure their weapons and components thereof do not come
under the control of unauthorized individuals. For example, DOD is
developing a new satellite tracking system due to be fully operational,
worldwide, in the next several years. Moreover, DOD also has long had
experience regulating explosive safety hazards, which directly affect
DOD's own personnel. Further, today's rule provides that DOD will
publish notice of any amendments to the DOD shipping controls in the
Federal Register. DOD will also provide EPA with DOD's determination of
whether the amended shipping controls are less protective than the
current standards. If EPA in its discretion determines that revisions
to the conditional exemption in today's rule are necessary to protect
human health and the environment, the Agency will propose such
revisions. Citizens may also petition for rulemaking under RCRA section
7004, 42 U.S.C. section 6974, using the procedures set forth in 40 CFR
Part 260, subpart C, to request EPA to revise the RCRA conditional
exemption in light of any amendments to the DOD shipping controls.
Under today's final rule, DOD amendments to its shipping controls rules
become effective for purposes of the conditional exemption only when
DOD publishes a notice in the Federal Register that its shipping
controls have been amended.
[[Page 6635]]
In summary, given the protective nature of the DOD shipping
controls, and the Services' record in providing for the safe
transportation of military munitions, the Agency concludes that RCRA
hazardous waste regulation is unnecessary when waste military munitions
are transported in compliance with DOD shipping controls. The
regulatory oversight created by today's rule provides further assurance
that the DOD shipping controls are followed and protectiveness is
maintained.
In enacting RCRA section 3004(y), Congress instructed EPA to
identify when military munitions become hazardous waste subject to
Subtitle C regulation. Congress also instructed EPA, after consultation
with the Department of Defense and the States, to develop storage and
transportation requirements for such waste military munitions that are
both protective of human health and the environment and ensure that
they are safely managed. Following EPA's consultation with DOD and the
States, EPA concludes that the most reasonable manner of accomplishing
Congress' goal is to allow DOD to continue to transport waste military
munitions under DOD shipping controls, which--when followed--provide
adequate protection, rather than impose a second regulatory scheme that
adds little in the way of protectiveness. Thus, RCRA section 3004(y)
further supports the approach taken in this rulemaking.
EPA also concludes that specifically identifying the conditions
under which waste military munitions become subject to RCRA Subtitle C
and providing for independent regulatory oversight of those conditions
adds significantly to the reliability and protectiveness of the system
of DOD shipping controls.
EPA emphasizes, however, that if a transporter of waste military
munitions claims the exemption, but fails to transport waste military
munitions in compliance with the provisions of the conditional
exemption, the non-compliant waste would no longer be exempt, so the
transporter would be subject to additional regulatory requirements and
could be subject to enforcement action (or citizen suit) for violations
of hazardous waste requirements. For example, where waste military
munitions lose their conditional exemption due to a violation of a
condition, the transporter of the waste could face penalties for
transportation of hazardous waste without a manifest. As a mechanism to
assist in the determination of whether the transportation of waste
military munitions is compliant with the terms of the exemption, the
Agency is imposing (in Sec. 266.203(a)(iv)) a self-reporting
requirement. Under this self-reporting requirement, the transporter
must provide oral notice to EPA within 24 hours, when becoming aware
of: (a) any theft or loss of the waste military munitions, or (b) any
failure to meet a condition of Sec. 266.203(a)(1) that may endanger
human health or the environment. The transporter must also provide a
written report describing the conditions of the violation or theft
within 5 days of learning of it. In addition, if any waste military
munitions shipped under subsection (a)(1) are not received by the
receiving facility within 45 days of the day the waste was shipped, the
owner or operator of the receiving facility must report this non-
receipt to the EPA within 5 days.
Under Sec. 266.203(c), where the conditional exemption has been
lost, the transporter may apply to EPA to reestablish the conditional
exemption. Once the waste returns to compliance with all conditions of
the exemption, an application for reinstatement of the conditional
exemption with respect to such waste may be filed with EPA. If EPA
finds that reinstating the conditional exemption for that waste is
appropriate, based on factors like those described in Sec. 266.203(c),
EPA may reinstate the exemption. Reinstatement is not automatic, but if
EPA does not respond to an application within 60 days, the conditional
exemption would be deemed reinstated. However EPA may terminate the
reinstatement at any time--even after the 60 period--if it finds that
the reinstatement is inappropriate based on factors like those
described in Sec. 266.203(c).
EPA emphasizes, however, that the generator of waste military
munitions or explosives must still make the determinations identified
in 40 CFR 262.11 in order to comply with the provisions of
Secs. 266.203 and 266.205 (discussed below), notably in order to know
which materials are subject to exception reporting and notification
requirements.
Response to Comments
The Agency received numerous comments on the proposed exemptions
from transporter standards for shipments between military facilities
under the DOD materials transportation standards. Some commenters
objected to the Agency's reliance on the current DOD standards for the
transport of unused military munitions as environmentally protective.
The Agency is convinced that exempting DOD from the manifesting
requirements is protective based primarily on the existing and
comprehensive internal controls that exist and are used within the
Services to track shipments of waste munitions. In addition, DOD's
safety record provides evidence of the effectiveness of the DOD
shipping requirements and DOD's commitment to safe transportation and
management. Thus, the Agency feels confident that reliance on these DOD
safeguards and practices is protective. Given this, the Agency feels
the additional burden of RCRA manifesting is duplicative and
unnecessary. Some commenters expressed concern that the usual RCRA
protections implied in the ``cradle to grave'' tracking of hazardous
waste would not be applicable under this approach since manifests
(which provide this link from cradle to grave) are not required. Again,
EPA is confident that the DOD tracking and security system is at least
as effective as the RCRA manifest in assuring that waste munitions are
tracked from ``cradle to grave.''
Some commenters requested clarification as to the applicability of
these exemptions to DOE, Coast Guard, and to commercial transportation
of military munitions. As discussed above, the Agency has decided to
provide the manifest exemption, as proposed, to DOD, DOE, the Coast
Guard, the National Guard, commercial transporters and other parties
under contract to or acting as an agent for DOD, who are obligated to
operate under the DOD shipping requirements. The Agency has not
provided a similar exemption to commercial or other Federal
transporters who are not subject to the DOD transportation standards,
even if they voluntarily follow the DOD standards.
M. Storage Standards
1. Conditional Exemption for Waste Military Munitions in Storage
a. Conditional Exemption for Waste Non-chemical Munitions. In
addition to promulgating RCRA storage standards for munitions that
become regulated hazardous waste, EPA is also finalizing a
``conditional exemption'' approach to identify when waste non-chemical
military munitions become subject to RCRA subtitle C storage
regulation. Through today's rulemaking, EPA is endeavoring to ensure
the safe storage of waste munitions while at the same time, not
unnecessarily duplicating or impeding existing regulation and handling
of such wastes. While the Agency believes that the subpart EE controls,
discussed below, are necessary
[[Page 6636]]
for the storage of waste munitions that are not already regulated and
for waste military munitions that are not managed in compliance with
existing controls, EPA does not believe that subpart EE regulations are
needed where waste military munitions are being properly handled in
compliance with the extensive DDESB standards (and other conditions set
out in today's rule).
Accordingly, today's rule provides that waste non-chemical military
munitions that exhibit a hazardous characteristic or are listed as a
hazardous waste are subject to hazardous waste storage regulation at
the point they become solid waste under 266.202, except when they meet
all of the conditions set forth in 40 C.F.R. 266.205(a)(1).
The conditional exemption in Sec. 266.205 applies only to waste
military non-chemical munitions that are subject to the jurisdiction of
DDESB (which could include military-owned munitions at contractor-
operated facilities), including products that DoD determines are solid
wastes under today's Sec. 266.202(b)(4) and unexploded ordnance
recovered from ranges and moved into storage prior to treatment or
disposal. EPA is not extending the conditional exemption option in
today's rule to owners or operators of storage facilities storing non-
military waste munitions and explosives, nor to persons storing
``military munitions'' who are not subject to the jurisdiction of the
DDESB (e.g., DOE or other non-DOD Federal agencies or contractor
facilities not directly or by contract subject to DDESB controls). EPA
has provided an exemption for ``military'' waste munitions based
largely upon the fact that DDESB standards apply to and are binding on
the military, and there is an institutional oversight process within
the military. A similar structure of management controls is not present
for non-military munitions.
The conditional exemption from RCRA storage requirements does not
apply to transportation, treatment, and disposal regulation, and is
available only so long as all conditions in Sec. 266.205(a)(1) are met.
1. Legal Basis for Conditional Exemption Approach. EPA's approach
is based on its view that RCRA Sec. 3001(a) provides the Agency with
flexibility, in deciding whether to list or identify a waste as
hazardous, to consider the need for regulation. Specifically, RCRA
Sec. 3001 requires that EPA, in determining whether to list a waste as
hazardous waste, or to otherwise identify a waste as hazardous waste,
decide whether a waste ``should be subject to the requirements of
Subtitle C.'' Hence, RCRA Sec. 3001 authorizes EPA to determine when
Subtitle C regulation is appropriate. The statute directs EPA to
regulate hazardous waste generators (section 3002(a)), hazardous waste
transporters (section 3003(a)), and hazardous waste treatment, storage
and disposal facilities (section 3004(a)) ``as necessary to protect
human health and the environment.'' By extension, the decision of when
a waste should be subject to the regulatory requirements of Subtitle C
is essentially a question of whether regulatory controls promulgated
under sections 3002-3004 are necessary to protect human health and the
environment.
EPA has consistently interpreted section 3001 to give it broad
flexibility in fashioning criteria for hazardous wastes to enter or
exit the Subtitle C regulatory system. EPA's longstanding regulatory
criteria for determining whether wastes pose hazards that require
regulatory control incorporate the idea that a waste that is otherwise
hazardous may not present a hazard if already subject to adequate
regulation. (See, e.g., 40 CFR 261.11(a)(3)(x), which requires EPA to
consider action taken by other governmental agencies or regulatory
programs based on the health or environmental hazard posed by the
waste.) Thus, where a waste might pose a hazard only under limited
management scenarios, and other regulatory programs already address
such scenarios, EPA is not required to classify a waste as hazardous
waste subject to regulation under Subtitle C.
At least two decisions by the U.S. Court of Appeals for the D.C.
Circuit provide support for this approach to regulating wastes as
hazardous waste only where necessary to protect human health and the
environment. In Edison Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir.
1993), the court upheld a temporary exemption from Subtitle C for
petroleum-contaminated media based on the fact that the potential
hazards of such materials are already controlled under the underground
storage tank regulations under RCRA Subtitle I. In reaching its
decision, the court considered the fact that the Subtitle I standards
could prevent threats to human health and the environment to be an
important factor supporting the exemption. Id. at 466. Similarly, in
NRDC v. EPA, 25 F.3d 1063 (D.C. Cir. 1994), the court upheld EPA's
finding that alternative management standards for used oil promulgated
under RCRA section 3014 reduced the risks of mismanagement and
eliminated the need to list as a hazardous waste used oil destined for
recycling.
This approach is fully consistent with RCRA section 3004(y), which
directs EPA to identify when military munitions become hazardous waste
subject to Subtitle C regulation. The section specifically calls upon
EPA--in consultation with the Department of Defense and the States--to
develop storage and transportation requirements for waste military
munitions that are both protective of human health and the environment
and ensure that they are safely managed. Following EPA's consultation
with DOD and the States, EPA concludes today that the most reasonable
manner of accomplishing Congress'' goal is to allow DOD to continue to
store waste military munitions under DDESB standards, which--when
followed--provide adequate protection, rather than impose a second
regulatory scheme.
Thus, RCRA section 3004(y) further supports the approach taken in
this rulemaking.
EPA's belief that RCRA section 3001(a) provides the Agency with the
flexibility to consider good management practice in determining the
need to regulate waste as hazardous, is also informed by the statutory
definition of hazardous waste (section 1004(5)(B), see also 40 CFR
261.10(a)). EPA has interpreted the statutory definition as
incorporating the idea that a waste that is otherwise hazardous does
not require regulation (if properly managed). For example, EPA's
regulatory standards for listing hazardous wastes allow consideration
of a waste's potential for mismanagement (see 40 CFR 261.11(a)(3),
which incorporates the language of RCRA section 1004(5)(B), and 40 CFR
261.11(c)(3)(vii), which requires EPA to consider plausible types of
mismanagement).
The legislative history of RCRA Subtitle C supports this
interpretation, stating that ``the basic thrust of this hazardous waste
title is to identify what wastes are hazardous in what quantities,
qualities, and concentrations, and the methods of disposal which may
make such wastes hazardous.'' H. Rep. No. 94-1491, 94th Cong., 2d
Sess.6 (1976), reprinted in A Legislative History of the Solid Waste
Disposal Act, as Amended, Congressional Research Service, Vol.1, 567
(1991)(emphasis added). This approach also finds support in the D.C.
Circuit's decision in Edison Electric Institute v. EPA, 2 F.3d 438
(D.C. Cir. 1993). In that case, the court remanded EPA's RCRA Toxicity
Characteristic (``TC'') as applied to certain mineral processing wastes
because the TC was based on modeling the mismanagement scenario of
disposal in a municipal solid waste landfill, yet EPA provided
[[Page 6637]]
inadequate evidence that such wastes were ever placed in municipal
landfills or similar units. Accordingly, if EPA were to find that the
mismanagement scenarios of concern for a particular waste were
implausible, the Agency may find that it is not necessary to subject
that waste to Subtitle C regulation.
EPA recognizes that in the early 1980's its interpretation of
RCRA's definition of hazardous waste focused on the inherent chemical
composition of the waste, and assumed that mismanagement of such waste
would occur and would result in threats to human health or the
environment (see 45 FR 33113, May 19, 1980). However, after more than
15 years of experience with the management of hazardous wastes, EPA
believes that it is no longer required--nor is it accurate and fair--to
assume that all inherently hazardous wastes will be mismanaged, thus
creating the necessity to regulate them under subtitle C.
Indeed, in several recent hazardous waste listing decisions, EPA
identified potential ``mismanagement'' scenarios for both wastewater
and non-wastewater sources, and then looked at available data to
determine if these mismanagement scenarios were plausible given
available information about current waste management practices.
In deciding to finalize the conditional exemption from RCRA
regulation for the storage of waste military munitions, EPA considered
several factors. First, and primarily, EPA relies on the fact that the
storage of all military munitions (including waste munitions) by the
military services is subject to the specific requirements of existing
DDESB standards for the management of military munitions. While these
standards have safety as the primary concern, EPA and one interested
party, representing certain members of the waste treatment industry,
have reviewed the DDESB standards in detail. Both concluded that the
technical design and operating standards of the DDESB meet or exceed
RCRA standards in virtually all respects, though there were gaps in
certain procedural requirements and in areas unrelated to risks from
explosive materials (e.g., in requirements to coordinate with local
authorities or in unit closure requirements). Based on its review
(which has been placed in the docket), EPA does not believe these gaps
undermine protection of human health and the environment in any
significant way, or that the superimposition of RCRA specific standards
would significantly increase protection. The DDESB standards (``DOD
Ammunition and Explosives Safety Standards,'' DOD 6055.9-STD) are in
the docket for today's rulemaking, and may also be obtained by
contacting the DOD Explosives Safety Board, 2461 Eisenhower Ave, Room
856-C, Alexandria, VA 22331-0600. These DDESB standards provide design
and operating standards that, in part, minimize the potential for
explosions and minimize the impact should an explosion occur, based on
four factors that relate to the physical and chemical characteristics
of these materials: (1) compatibility groupings, (2) hazardous class,
(3) net explosive weight (NEW), and (4) quantity distance formulae. The
EPA analysis ``A Comparison of RCRA Storage Requirements with DOD
Requirements for Storage of Military Munitions,'' EPA, October 31,
1995, is in the docket for this rulemaking (and was available for
public comment during the comment period for this rule).
The applicability of these standards to waste military munitions in
storage is the major reason for EPA's belief that--in specified
circumstances--it is not necessary to subject these wastes to RCRA
storage regulation.
Second, EPA believes that specifically identifying the conditions
under which waste military munitions become subject to RCRA Subtitle C,
and providing for independent regulatory oversight of those conditions,
adds significantly to the reliability and protectiveness of the system
of DDESB standards.
Third, EPA believes that the fact that the DDESB standards
generally apply to military munitions and, if violated, can have
significant consequences, provides further assurance that the
conditions for exemption will be met. For instance, if a member of the
military is found to have violated the DDESB standards, that person is
subject to military disciplinary actions. Safety Standards for Storage
of Explosives and Ammunition, 41 Op. Att'y Gen. 38 (1949).
Finally, EPA has reviewed documentation concerning incidents
involving the handling of DOD munitions, and continues to believe that
DOD has a good safety record in storing all military munitions
(including ``waste'' munitions, which constitute a tiny fraction of the
overall quantity of munitions managed by DOD). Certainly, there have
been incidents over the years that involved munitions detonation, in
some cases leading to injury or property damage. However, few if any of
these incidents involved waste munitions. Moreover, given the vast
quantity of munitions managed by DOD and the dangerous nature of the
material, EPA concludes that the safety record has been good, and
furthermore, that regulation under RCRA subtitle C is unlikely to
significantly improve that record.
In summary, given the protective nature of the DDESB standards, and
the Services' record in providing for the safe storage of military
munitions, the Agency believes that RCRA subtitle C regulation is not
necessary for waste military munitions managed in compliance with these
standards. The regulatory oversight created by today's rule provides
further assurance that the standards are followed and protectiveness is
maintained.
2. Implementation and Enforcement Issues. It is important to
emphasize that if a military facility claims the conditional exemption
in Sec. 266.205(a)(1), but fails to store waste military munitions in
compliance with the provisions of that exemption, that facility's
mismanaged waste, and any unit in which that waste was mismanaged,
would no longer be exempt. Accordingly, the facility would be subject
to additional regulatory requirements (e.g., a RCRA storage permit) and
could be subject to enforcement action (or citizen suit) for violations
of hazardous waste requirements.
As a mechanism to determine if the units used to store waste
munitions are in compliance with the terms of the exemption, the Agency
is imposing (in Sec. 266.205(c)) as a condition for the exemption a
self-reporting requirement. Under this self-reporting requirement, the
owner or operator must provide oral notice to EPA within 24 hours, when
the owner or operator becomes aware of: (a) any loss or theft of the
waste military munitions, or (b) any failure to meet a condition of
Sec. 266.205(a)(1) that may endanger human health or the environment.
The owner/operator must also provide a written report describing any
failure to comply with any condition for the exemption, or a loss or
theft, within 5 days of learning of it.
When a violation of 266.205(a) occurs, the waste in question
automatically loses its exemption. Under 266.205(c), the owner or
operator may apply to EPA to reestablish the conditional exemption once
the waste returns to compliance with all conditions of the exemption.
Depending on the circumstances, EPA may, in its discretion and
considering factors such as those described in Sec. 266.205(c),
reinstate the exemption. Reinstatement is not automatic, but if EPA
does not act on an application within 60 days, the conditional
exemption would be deemed to be granted. However, EPA may, after
[[Page 6638]]
considering appropriate factors such as those provided in
Sec. 266.205(c), revoke an exemption reinstated by default at any time,
even after the 60 period. Reinstatement decisions will be made by the
Director (as defined in 40 CFR 270.2). Any owner or operator who claims
that EPA reinstated the owner/operator's conditional exemption must be
able to demonstrate that the reinstatement has been approved by the
Director.
Further, as a mechanism to enable the regulatory agency to know
which wastes and which storage units are subject to oversight under
this approach, EPA has established a requirement for a notification
within 90 days of when a storage unit is first used to store waste
military munitions for which the conditional exemption is claimed.
In order for the regulatory agency to know when a storage unit will
no longer be used to store waste military munitions subject to
Sec. 266.205(a), Sec. 266.205(b) requires DoD to notify the appropriate
regulatory authority of that fact.
3. Amendments to DDESB Standards. The DDESB storage standards that
make up the Sec. 266.205(a)(1) conditions are those adopted by the
DDESB as of November 8, 1995. EPA understands that the DDESB may change
its storage standards from time to time. However, in light of the fact
that DDESB has a statutory obligation to ensure proper storage of
munitions, and to prevent hazardous conditions arising from storage of
munitions that would endanger life and property (see 10 U.S.C.
Sec. 172), EPA does not consider it likely that DDESB would pursue any
amendments that would lessen protection of human health and the
environment. DDESB also has a long experience regulating explosive
safety hazards, which directly affect DOD's own personnel. Further,
today's rule provides that DOD will publish notice of any amendments to
the DDESB storage standards in the Federal Register. DOD will also
provide EPA a preliminary determination of whether the amended
standards are less protective than the current standards. If EPA in its
discretion determines that revisions to the conditional exemption in
today's rule are necessary to protect human health and the environment,
the Agency will propose such revisions. Citizens may also petition for
rulemaking to request EPA to revise the RCRA conditional exemption in
light of any amendments to the DDESB standards (see RCRA section
7004(a), and 40 CFR 260.20).
EPA understands that DOD officials have authority, in some
circumstances, to grant waivers or exemptions from DDESB standards for
military munitions, where necessitated by strategic or other compelling
reasons. However, EPA believes that a waiver for waste military
munitions could be inconsistent with the basis for the conditional
exemption established by today's rule. Therefore, a waiver from
otherwise applicable DDESB storage standards will terminate the
eligibility of affected waste munitions for the conditional exemption,
subject to reinstatement by EPA pursuant to Sec. 266.205(c). The
existence of a waiver will not preclude the owner or operator from
storing waste military munitions in compliance with the requirements of
40 CFR Parts 264 or 265, subpart EE.
b. Waste Chemical Munitions 1. Applicability of RCRA Requirements
to Waste Chemical Munitions. ``Chemical agents and munitions'' are
defined as in the Department of Defense Authorization Act of 1986, 50
U.S.C. 1521(j)(1); this statute is the comprehensive congressional
scheme for the management and ultimate destruction of chemical agents
and munitions.
Under the original 1980 RCRA regulations, and under today's federal
RCRA regulations, a waste is hazardous if it is specifically listed as
a hazardous waste, or if it exhibits a hazardous characteristic such as
reactivity. See 40 CFR Part 261, subparts B and C. Chemical agents and
munitions become hazardous wastes if (a) they become a solid waste
under 40 CFR 266.202, and (b) they are listed as a hazardous waste or
exhibit a hazardous waste characteristic; chemical agents and munitions
that are hazardous wastes must be managed in accordance with all
applicable requirements of RCRA.
Based on EPA's technical review associated with this rule, the
Agency believes that the waste chemical agents and munitions in the
military stockpile exhibit at least one of the characteristics
identified in 40 CFR 261 subpart C. These chemical waste agents and
munitions would be hazardous wastes, required to comply with RCRA
requirements. (Note that even though the characteristic nature of waste
chemical agents and munitions may not have been well understood in the
past, the Department of Defense has, as a matter of policy and/or State
law, been managing these waste chemical agents and munitions in
compliance with RCRA requirements, and subject to RCRA permits.)
2. Inapplicability of Conditional Exemption. EPA is not extending
the conditional exemption in Sec. 266.205(a)(1) to waste chemical
agents and munitions. This decision should not be construed as a
negative assessment of DOD's standards or management of chemical agents
and munitions. Indeed, DOD has a sound record for the safe storage of
chemical munitions and agents. This decision is based on the Agency's
belief that chemical agents and munitions are more akin to other types
of chemical waste that RCRA typically regulates than are waste
conventional weapons. In addition, as noted above, waste chemical
agents and munitions are, either because of State law or DOD policy,
already stored in RCRA regulated units and the public has come to
expect that. EPA sees no reason to disrupt the current situation.
3. Inapplicability of RCRA Storage Prohibition. EPA is today
codifying its interpretation that RCRA section 3004(j) does not apply
to waste chemical agents and munitions. (See Sec. 266.205(d)(2) of
today's rule.)
By way of background, RCRA section 3004(j) prohibits the storage of
hazardous waste for which one or more methods of land disposal are
prohibited, unless such storage is for the sole purpose of accumulating
quantities needed for proper recovery, treatment, or disposal. Edison
Electric Institute v. EPA, 996 F.2d 326 (D.C. Cir. 1993). Land disposal
restrictions have been set for waste exhibiting any of the hazardous
waste characteristics, and thus the storage prohibition would, on its
face, appear to apply to waste chemical agents and munitions that
exhibit a characteristic. Congress enacted section 3004(j) in 1984
because it ``believed that permitting storage of large quantities of
waste as a means of forestalling required treatment would involve
health threats equally serious to those posed by land disposal, and
therefore, opted in large part for a `treat as you go' regulatory
regime.'' Id. at 329 (quoting Hazardous Waste Treatment Council v. EPA,
886 F.2d. 355, 357 (D.C. Cir. 1989). The fact that treatment or
disposal capacity for a waste does not exist or is inadequate is not
enough, by itself, to overcome the storage prohibition. Id. at 336.
However, in the case of chemical agents and munitions, Congress
has--subsequent to enactment of section 3004(j)--statutorily limited
DOD's ability to move waste chemical agents and munitions from storage
to treatment and disposal; EPA believes that this demonstrates
Congress' intention that the storage prohibition should not apply to
waste chemical agents and munitions.
Specifically, in 1985, one year after enacting RCRA section
3004(j), Congress established a comprehensive scheme for the management
and ultimate
[[Page 6639]]
destruction of waste chemical agents and munitions. See 50 U.S.C.
section 1521. That scheme, which Congress has updated and amended
repeatedly in intervening years, requires detailed study of destruction
options for the chemical agents and munitions, and provides for
destruction of the chemical agents and munitions to be completed by a
set date. See, e.g., 50 U.S.C. section 1521 (a), (b), and (d). As
originally enacted, Congress required destruction of the chemical
agents and munitions by September 30, 1994, but Congress has extended
that deadline recently to December 31, 2004. 50 U.S.C. section
1521(b)(5). Congress has further required that certain studies be
completed prior to destruction (see, e.g., 50 U.S.C. section 1521(d));
Pub. L. No. 180, 100th Cong., 1st Sess., section 125(b), (c), (d) (Dec.
4, 1987), 101 Stat. 1019, 1043, 1044). During this mandated study
phase, during construction of the destruction facilities (see 50 U.S.C.
section 1521(c)(1)(B),(2)), and while destruction is ongoing, Congress
necessarily envisioned that these waste chemical agents and munitions
would be stored. Indeed, Congress specifically required DOD annually to
assess and report ``how much longer the stockpile can continue to be
stored safely.'' 50 U.S.C. section 1521(g)(3)(C)(1).
Highlighting that Congress did not intend these agents and
munitions to be destroyed until completion of a process to ensure
environmentally safe destruction, Congress last year specifically
prohibited construction of chemical weapons incinerators at two of
eight storage sites, pending study of other destruction alternatives.
See Omnibus Consolidated Appropriations for 1997, Pub. L. 208, 104th
Cong., 2d Sess., section 8065, reprinted in 9A U.S.C.C.A.N. 396, 397
(Nov. 1996). Congress also has restricted transportation of chemical
agents and munitions, so that chemical agents and munitions cannot be
transported from a storage facility that lacks disposal capacity to a
storage facility that might have such capacity. See id. at 397-98; see
also 50 U.S.C. section 1512, 1521a.
In light of the detailed Congressional plan for destruction of the
chemical agents and munitions, and their necessary storage pending
destruction, EPA believes that Congress could not intend the
prohibition on storage in RCRA section 3004(j) to apply to chemical
agents and munitions. EPA believes that the issuance of this
interpretation is necessary to reconcile the otherwise conflicting
provisions of two federal statutes, and is within EPA's mandate under
RCRA section 3004(y) to issue regulations that provide for safe storage
of waste chemical agents and munitions.
This interpretation is an interpretative rule that reconciles
specific, existing statutory provisions; under 5 U.S.C. section
553(b)(3)(A), it is not subject to formal public notice and comment
rulemaking procedures.
2. Subpart EE. As noted above, EPA believes that RCRA regulatory
controls are necessary for waste munitions not already regulated, and
for waste military munitions that are not being managed in compliance
with the comprehensive DDESB standards. At the same time, however (and
as discussed in the proposed rule on waste munitions), EPA's view is
that the specific RCRA regulations currently applicable to hazardous
waste storage units (e.g., the container and tank standards) are not
the best fit for waste munitions and explosives. Rather, the Agency has
developed a tailored version of the RCRA storage standards to better
reflect the nature of waste munitions and explosives, and to ensure
that the regulatory requirements do not interfere with the safe
handling of these materials. See 60 FR 56479 (November 8, 1995).
The Agency has clear authority under section 3004(a) to establish
storage standards ``as necessary to protect human health and the
environment''; the storage standards presently in 40 CFR Part 264 were
designed to cover conventional waste management units such as tanks and
containers; today's subpart EE standards are focused on the storage of
hazardous waste munitions and explosives in magazines designed for
explosive materials. Accordingly, EPA is finalizing proposed subpart EE
in 40 CFR Parts 264 and 265 for waste military munitions and commercial
munitions and explosives that have become hazardous waste subject to
subtitle C.
EPA has modified proposed subpart EE in one substantive respect. In
response to suggestions by some commenters, the Agency is extending
subpart EE applicability to hazardous waste non-military munitions and
explosives, as well as to hazardous waste military munitions and
explosives. EPA believes this change is reasonable because the subpart
EE performance standards are equally appropriate for non-military
munitions and explosives, which closely resemble certain military
munitions (e.g., small arms ammunition). As noted in the proposed rule,
this subpart combines the environmental features of the existing RCRA
storage unit standards with performance standards based on the DOD
Explosives Safety Board (DDESB) munitions storage standards (which are
contained in DOD 6055.9-STD--DOD Ammunition and Explosives Safety
Standards) to minimize potential inconsistencies or conflicts between
RCRA regulatory requirements and DOD's explosives safety standards.
(This is consistent with the mandate in RCRA section 3004(y) to address
both protectiveness and safety.) It is equally important to ensure that
owners and operators of storage facilities for non-military waste
munitions and explosives have a unit standard that considers both the
traditional RCRA concerns and the need to assure explosives safety.
Subpart EE is not the exclusive manner for storing hazardous waste
munitions or explosives, but rather, provides an alternative for the
storage of hazardous waste munitions and explosives under RCRA.
Depending on the explosive hazards, a facility owner or operator may
still seek a storage permit for waste munitions and explosives under
the already existing 40 CFR parts 264 and 265 standards for other types
of storage units, including containers (subpart I), tanks (subpart J),
and containment buildings (subpart DD). An owner or operator would
apply for a permit under the most appropriate of these standards.
In developing the subpart EE standards, the Agency carefully
examined the DDESB standards, which have been developed to protect
against explosions and to minimize the impact if one should occur, and
in doing so EPA concluded that the DDESB standards are generally
protective of human health and the environment. The subpart EE
standards include the three basic designs of magazines that are found
in the DDESB storage standards: (1) earth-covered magazines (ECMs)
(which are frequently used for shock sensitive and other munitions),
(2) above ground magazines (AGMs) (which might be used for munitions
that do not pose a mass detonation or fragment producing hazards), and
(3) outdoor or open storage areas (typically for munitions that do not
pose a significant potential for explosion).
Today's rule also establishes design, operation, monitoring,
inspection, closure, and post-closure care standards consistent with
the standards for other RCRA storage units. These standards set
containment and control performance standards to prevent contamination
of soil, ground-water, surface waters, and the air. The standards
require a primary barrier or containment system, which may be a bomb
shell, a protective casing, a storage container, or a tank. For non-
liquid wastes stored outdoors or in open storage areas, the unit design
[[Page 6640]]
and operation must provide that the waste will not be in standing
precipitation. This may be accomplished by a number of design and
operating features, including a sloped impervious base, a pervious
base, and/or waste elevation.
For those few waste munitions that are liquids, in addition to the
primary barrier or container, the subpart EE rules require units to be
equipped with a secondary containment or vapor detection system. The
secondary containment or vapor detection system design, operation,
controls, and monitoring features may include a combination of sumps,
pumps, drains, slope, double-walled containers or tanks, overpacks,
and/or elevated waste or other features that provide that any released
liquids are contained or promptly detected so that an appropriate
response may be taken (e.g., additional containment, such as a
container overpack, or removal from the waste area). For liquid and
liquid-filled waste munitions (e.g., the stored waste chemical
munitions), the Agency considers the storage of the munition inside a
sealed storage casing as a means of achieving secondary containment.
Monitoring and inspections are required to assure that the
containment systems and controls are working as designed, that the
wastes are stable, and that no contaminants that might adversely affect
human health or the environment are being released from the magazine.
In addition, all hazardous waste munitions under subpart EE would have
to be inventoried at least annually, which is consistent with current
DOD requirements.
The closure standards mirror the other RCRA storage unit closure
standards, requiring waste and contaminant removal and containment
system decontamination (where practicable). When ``clean closure''
cannot be accomplished, the landfill closure and post-closure standards
apply.
Response to Comments
EPA received numerous comments on proposed subpart EE and the three
alternatives that EPA proposed in the preamble to the proposed rule.
Regarding subpart EE, some commenters said it is too general to be
effective, whereas others supported it, some saying it should be
expanded to be available for all munitions and explosives storage, not
just military and not just munitions since the other existing storage
standards under RCRA are not as tailored or specific to explosives.
Regarding the former comments, EPA believes the advantage of general
performance standards is that they allow flexibility in establishing
site specific design and operating standards. 40 CFR part 264, subpart
X, is an example of a RCRA Subtitle C performance standard. The
disadvantage of performance standards as pointed out by the commenters
is the lack of specificity. In the case of subpart EE, however, EPA has
included some specificity (e.g., secondary containment). Also, the
DDESB standards or other applicable standards (e.g., DOE, Coast Guard,
NASA, BATF) and Standard Operating Procedures (SOPs) may be
incorporated as appropriate to add specificity in the development of
permit standards. Since there are so many standards and SOPs for
munitions and explosives, both in the private and public sectors, this
approach provides the flexibility to incorporate these without having
restrictive or conflicting RCRA standards. Commenters asked if military
or other SOPs would be subject to regulator review. To the extent that
they are used in the subpart EE permit, they would be subject to
regulator and public review during the permitting process, and when
incorporated into a RCRA permit, they become regulatory requirements.
Regarding the comments supporting expanding the coverage of the
proposed subpart EE, EPA concurs and has expanded the applicability of
subpart EE in the final rule to make it an available option for the
storage of all waste munitions and explosives. For this reason, subpart
EE has been retained in parts 264 and 265 rather than in the new part
266, subpart M.
Several commenters felt that EPA should require storage permits for
all chemical munitions, not only because they felt these should be
classified as wastes (this comment was discussed in section K of this
preamble), but because extra precautions are needed for these
particularly hazardous chemicals. In response, EPA has decided not to
allow the storage of waste chemical agents and munitions to be eligible
for the conditional exemption from storage permits under today's rule.
Instead, a subpart EE or other waste management permit is required for
these wastes. EPA notes, however, that DOD has in place strict
procedures for the storage of all chemical munitions, including waste
chemical munitions. For example, all chemical munitions and bulk agent
storage is currently maintained within a special high security area at
each installation. Extensive precautions are used to control entry to
these storage areas. Munitions containing explosives are stored in
earth-covered magazines (ECMs) designed to protect their contents from
blast and shrapnel effects of the potential detonation of a neighboring
magazine. Most munitions without explosive components, and bulk
containers containing isopropyl methylphosphonoflouridate (referred to
as GB) and phosphonothioic acid, methyl-S-(2-(bis(1-methylethyl))-
amino)ethyl-O-ethyl ester (referred to as VX), are also stored in ECMs.
The exceptions include VX ton containers and spray tanks, both of which
are stored in above ground magazines (AGMs). One ton containers of
mustard agent are stored in either ECMs, AGMs, or outdoor storage
areas. Chemical munitions other than 1-ton containers are stored in
configurations generally suitable for transport during wartime. These
configurations include boxes, protective tubes, or metal overpacks, and
all are on pallets. The stacking arrangements and aisles inside the
storage facilities are generally designed and maintained so that units
in each stack can be inspected, inventoried, and removed for shipment
or maintenance, as necessary. Periodic surveillance monitoring, safety
inspections, indoor air monitoring, maintenance of munitions for
safety-in-storage, and inventory activities are routinely carried out
on these stored munitions.
Also, there have been no catastrophic accidents associated with the
storage of chemical munitions, and the risk of release to the public
has been reduced due to the 1969 cessation of live firing and the
implementation of close restrictions on the disposal and movement of
chemical munitions. There are, however, cases where deterioration of
the containers has resulted in leaking of agent from a munition. When
this occurs, the munitions are over packed in hermetically sealed
containers and placed in specially designated and monitored magazines.
Even with such incidents, in the past 40 years there have been no known
cases of exposure to personnel not directly engaged in agent
operations.
Some commenters suggested that subpart EE be expanded for waste
gaseous chemical warfare agents to require secondary containment and to
prohibit outdoor storage. EPA notes that chemical warfare agents are
stored as liquids, not gases, and therefore the secondary containment
or vapor detection system requirements in today's rule apply.
EPA does not see the need to prohibit outdoor storage of any waste
munitions in subpart EE so long as those waste munitions will not be
left in standing precipitation, and, if liquid, have secondary
containment or vapor
[[Page 6641]]
detection system, as is required by subpart EE.
DOD commented that EPA should allow a vapor detection and response
system as an alternative to secondary containment for liquid waste
chemical munitions and agents since these materials leak as vapors
before they leak as liquids and such early detection and response
provides for protection that is comparable to secondary containment.
EPA agrees, and as discussed in the section on subpart EE above, EPA
has provided for the use of a vapor detection and response system in
finalizing subpart EE. In addition to the subpart EE standards,
chemical waste military munitions are also subject to additional
procedures and requirements regarding monitoring or secondary
containment. At facilities that manage chemical weapons, DOD has both a
monitoring and a visual inspection protocol that is designed to allow
early detection of any leakage from a chemical munition. The monitoring
includes both regularly scheduled sampling of the air in all units
storing chemical munitions, as well as monitoring of the air within the
storage unit whenever personnel are to enter the unit. Should there be
a release of agent, these monitoring protocols will detect minute
amounts of vapor release (which typically occurs before any liquids are
released). Should a release be detected, the munitions within the
storage units are inspected to locate the leak and the release is
contained. If the source cannot be located immediately, the ammunition
storage unit is sealed and the air filtered and monitored until the
source is located. Once a leaking chemical munition is isolated, it is
overpacked in a specially designed container that re-establishes an
intact barrier between the agent and the environment. If a container
with liquids (e.g., an M55 rocket) leaks inside its sealed shipping
tube, and if the primary barrier (e.g., the rocket casing) has been
permanently compromised, but the shipping tube is intact, DOD typically
overpacks the rocket in order to place two intact barriers between the
liquid and the environment, an action consistent with the secondary
containment requirements found in other unit standards under RCRA. Upon
completion of the overpacking activities and associated decontamination
procedures, the storage area is monitored to assure complete
decontamination.
Commenters sought further clarification of the status of shipping
containers and overpacks as secondary containment for liquid-filled
waste munitions. It is EPA's view that the secondary containment
requirement for waste munitions may be met by a shipping or storage
container or overpack around a non-leaking munition or container since
it places a second barrier between the liquid and the environment.
Multiple overpacks (a current DOD practice) are permissible to meet
this requirement.
Some commenters (mostly the regulated community) favored the first
proposed alternative or the ``deferral'' option under which munitions
would not under any circumstances be considered a RCRA hazardous waste
based on the current storage practices of DOD, which are protective of
human health and the environment. Other commenters questioned this
alternative's legal basis and opposed this approach because it would
remove all non-DOD oversight. EPA agrees with the latter commenters on
both counts and has not adopted this approach.
The Agency received comments raising concerns about a contingent
management approach. The Agency's thinking on this issue is set out in
today's preamble and a detailed response can be found in the docket.
N. Permit Modifications to Receive Off-Site Waste Munitions
Some RCRA permits at military installations have conditions
prohibiting the receipt of ``off-site'' waste. Under these permit
restrictions, if the point of generation of a waste munition is any
place other than the permitted installation, then the waste munition
could not be accepted at the facility for treatment, storage, or
disposal without the installation first having received a RCRA permit
modification.
Under today's rule, a number of formerly unregulated munitions
might now be deemed to be wastes, and thus potentially subject to these
off-site permit restrictions (see discussion in the preamble to
proposed rule). Under the existing regulations (40 CFR 270.42(d)(1)),
this modification would arguably have to follow the procedures for a
Class 3 modification, requiring approval before implementation.
Alternatively, the permittee might request that the modification be
reviewed by the regulatory agency as a Class 1 or Class 2 modification.
DOD maintains that this situation would cause a serious disruption of
its munitions management program.
To address this concern, this final rule allows permitted
facilities with off-site prohibitions to continue to receive from off-
site sources munitions that have been newly defined as solid waste,
provided there is timely notification to the permitting authority (in
the form of a Class 1 permit modification request), followed by a Class
2 permit modification request. Under this procedure, the facility may
continue to accept waste munitions from off-site sources until the
permitting authority makes a final decision on the Class 2 permit
modification request. This approach is consistent with the permit
modification rules for newly regulated wastes(40 CFR 270.42(g)).
There are three specific requirements that are attached to this
provision and are codified today at 40 CFR 270.42(h). First, to be
covered under this provision, the facility must be in existence on the
date today's rule goes into effect and must already have a permit to
handle the waste munitions. Second, the facility must submit a request
for a Class 1 permit modification that seeks an amendment or removal of
the permit restriction on off-site waste. The Class 1 permit
modification request must be submitted on or before the date when the
waste munitions become subject to hazardous waste regulatory
requirements. (Today's rule becomes effective in unauthorized States
six months from the date of publication; in authorized States, State
law would determine the effective date.) This timely Class 1 submittal
would allow the facility to continue to receive off-site waste
munitions after the effective date without the need for prior approval
by the permitting authority. Third, following submission of a Class 1
permit modification request, the facility would have an additional six
months following the effective date of this rule to submit a Class 2
permit modification request for the removal of the off-site waste
prohibition. Following submission of the Class 2 modification, the
facility would be allowed to continue to accept waste munitions from
off-site sources until such time as a final decision to grant or deny
the modification is made.
EPA's two-step approach recognizes that military munitions that
were previously handled at certain stages as non-waste might, under
today's rule, be considered waste. This two-step process allows DOD to
continue managing its munitions with a minimum of disruption, while
recognizing the need for the modification of those permits that
restrict the acceptance of waste munitions from off-site sources.
The proposed rule provided an opportunity for DOD, before the 180-
day deadline to submit a Class 2 permit modification application, to
request the permitting agency to allow an extension for a specified
period. In today's final rule, EPA has decided not to provide for such
an opportunity for two reasons. First, this is inconsistent with
[[Page 6642]]
Sec. 270.42(g) which addresses permit modifications for all newly
regulated wastes and units to which this situation is analogous.
Second, this Class 2 permit modification request is, perhaps, the
simplest and most straightforward of all types of requests likely to be
submitted under this section, so to provide an opportunity for
extension is unnecessary.
Today's final action does not affect activities at interim status
facilities. In some cases, however, the facility's part B permit
application might include an off-site waste prohibition. In this case,
the facility owner should amend the permit application.
Response To Comments
A number of commenters said it would be inappropriate for EPA to
adopt DOD's alternative approach as described in the proposed notice
(whereby a material is not deemed to be a waste until received at the
treatment/destruction unit) because this approach would undo by
national rule provisions that currently exist in a number of permits
that prohibit the receipt of off-site waste, and because this would
ignore or circumvent the right and duty of State regulatory agencies to
issue site-specific permits based on public participation. Furthermore,
a number of commenters maintained that the modification of a permit
restriction regarding off-site wastes should be processed as a Class 3
modification requiring full public participation rather than as a Class
1 or 2 permit modification. These commenters argued that permit
modifications to remove off-site waste restrictions could create the
need for additional modifications regarding changes in waste streams or
quantity limitations. Commenters specifically expressed concern that no
waste should be allowed to be received from off-site unless the
receiving facility is ``prepared and equipped'' to comply with the
standards for off-site facilities.
In adopting the approach in today's rule, the Agency's main concern
is that any modification of existing permit conditions restricting off-
site waste be done in a way that provides for public participation.
Thus, the Agency concurs with the comments opposing the ``alternative
proposal'' of declaring the transported material as a waste when it
reaches the ``front door'' of the treatment or disposal unit.
In response to commenters recommending the Class 3 permit
modification procedures, expressing concern that other permit
conditions might change, or that facilities might not be prepared to
receive the ``new'' waste munitions, EPA is clarifying the
applicability of the off-site permit modification provisions in today's
rule. The procedures of new Sec. 270.42(h), allowing a Class 1
modification submittal followed by a Class 2 modification request,
apply only to changing a permit condition that prohibits receipt of
off-site wastes. Section 270.42(h) of today's rule does not allow
facilities to receive munitions that they were not already receiving at
the time of the rule's effective date. It only allows facilities to
continue to receive munitions newly classified as hazardous waste.
Today's rule also does not affect the classification of, or process
for, other types of permit modifications (such as acceptance of
different wastes or changes in permitted quantity limits) that might
occur at a facility. Those other types of modifications will continue
to be evaluated in accordance with 40 CFR Sec. 270.42 and Appendix I to
40 CFR Sec. 270.42.--i.e., the facility must follow the appropriate
procedures for whichever class of modification--Class 1, 2, or 3--
applies.
In conclusion, given the very narrow scope of the changes allowed
under Sec. 270.42(h), EPA believes that it is not necessary to require
Class 3 permit modifications in this rule. In situations of high public
concern, Class 2 procedures already allow the regulating agency to
elevate the process to a Class 3.
O. Environmental Justice
Today's rule addresses environmental justice concerns by providing
standards, while not specific to environmental justice, that are
protective of human health and the environment regardless of the
population potentially impacted. In addition, DOD as well as all
Federal agencies, is subject to the President's Executive Order No.
12898 on Environmental Justice.
Response To Comments
Several commenters raised environmental justice concerns. The
comments focused primarily on military contamination caused by ordnance
landing on ranges formerly owned by Native Americans or Hawaiians, or
landing off-range on Native American or Hawaiian lands. The commenters
stated that these lands should be cleaned up and, as appropriate,
returned, citing cultural, economic, safety, justice, and social
reasons, observing that indigenous peoples have a special relationship
to their land and that relocation is not an option. Seven environmental
justice examples were mentioned in the public comments. These examples
are located in Alaska, California (2), Hawaii, Nevada, Oregon, and
South Dakota. A brief description of each of these was provided in the
comments.
In response, EPA has prepared a report summarizing these comments
and cases, and referred it to DOD. A copy of this report is available
in the Docket for this rule-making. DOD has created an environmental
justice program to evaluate and respond to these concerns and has
appropriated $8 million in each of the past three fiscal years to
support this effort.
In addition, in developing this final rule and in helping DOD
develop its range cleanup rule, EPA feels the environmental justice
concerns raised by the commenters for munitions and contaminants
landing or migrating off-range, and on closed and transferred ranges,
will now be addressed, resulting in an increased protection of human
health and the environment. For example, some commenters referred
specifically to munitions that land off range. Today's rule retains, in
Sec. 266.202(c)(3), the ``off-range'' response provision of the
proposed rule. This is expected to help communities, including Native
American communities, which are located adjacent to ranges. In
addition, EPA is working with DOD in the development of DOD's Range
Rule, which will establish a process for taking inventory, accessing,
and cleaning up closed, transferring, and transferred ranges.
P. Emergency Responses
Today's final rule also clarifies that RCRA generator, transporter,
and permit requirements do not apply to immediate responses to threats
involving munitions or other explosives. EPA is now codifying a long
standing Agency policy to address concerns of DOD and other emergency
response officials that RCRA requirements may impede emergency
responses, especially by causing delays or confusion. As stated in the
preamble to the proposed rule, the current RCRA rules exempt emergency
responses from full permit requirements in two ways. First, permits
(including emergency permits) are not required for immediate responses
to a discharge of hazardous waste or to an imminent and substantial
threat of a discharge (Secs. 264.1(g)(8), 265.1(c)(11), and
270.1(c)(3)). After the emergency is determined to be over, however,
any additional waste management may be subject to RCRA regulation.
Second, in cases of imminent and substantial endangerment to human
health or the environment, a temporary emergency permit may be issued
to a facility to treat, store, or dispose of hazardous
[[Page 6643]]
waste. This permit may be issued orally, if followed by a written
emergency permit within five days, and may not exceed 90 days in
duration. See 40 CFR 270.61.
Today's rule clarifies that EPA considers immediate or time-
critical responses to explosives or munitions emergency responses to be
an immediate response to a discharge or imminent and substantial threat
of a discharge of a hazardous waste under 40 CFR 264.1(g)(8),
265.1(c)(11), and 270.1(c)(3). Such responses are, therefore, exempt
from RCRA permitting, and other substantive requirements, including
emergency permits, conducting risk assessments for OB/OD permits under
40 CFR part 264, subpart X, and interim status requirements under 40
CFR part 265, subpart P. If an immediate response, however, is clearly
not necessary to address the situation, and a response can be delayed
without compromising safety or increasing the risks posed to life,
property, health, or the environment, the responding personnel, if time
permits, should consult with the regulatory agency regarding the
appropriate course of action (e.g., whether or not to seek a RCRA
emergency permit under Sec. 270.6l, or regular facility permit under 40
CFR Part 270). Situations where an immediate response is needed would
include instances where the public or property is potentially
threatened by an explosion. Situations where an immediate response is
clearly not necessary would include instances where the public or
property are not threatened by a potential explosion (e.g., in remote
areas such as some former ranges or where immediate action is not
necessary to prevent explosion or exposure). In these cases, there is
time to consult with the EPA or State regulatory agency on how to
proceed.
Sections 264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D), 266.204, and
270.1(c)(3)(i)(D) make it clear that explosives or munitions
emergencies, including those involving military munitions, are exempt
from RCRA permitting (including emergency permitting). This final
action also clarifies, in Secs. 262.10(i) and 263.l0(e), that, if an
emergency response specialist at the site determines it to be
appropriate, the explosive material may be removed and transported to a
safer location to be defused, detonated, or otherwise rendered safe
without a RCRA manifest, and the transporter is not required to have a
RCRA identification number. Such transport could be to an open space or
an EOD range at a military installation. Transportation onto a military
base is, however, subject to the requirements of 10 USC section 2692.
Transporters shall consult with appropriate military authorities
regarding 10 USC section 2692 requirements. This final action, which
EPA believes is necessary to allow prompt response to explosives
emergencies, is consistent with current EPA policy.5
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\5\ Interpretive letter from EPA (Director, Office of Solid
Waste) to the Bureau of Alcohol, Tobacco, and Firearms, August 11,
1988, p.4.
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Today's rule also finalizes three new definitions in Sec. 260.10 to
help clarify the scope of this exemption. The definition of
``explosives or munitions emergency'' describes in detail what
constitutes an emergency, and clarifies that an emergency situation
includes suspect situations with significant uncertainties, including
improvised explosive devices (IEDs, e.g., home made bombs). The
definition of explosives or munitions emergency also states that the
``explosives or munitions emergency response specialist'' is
responsible for determining whether an emergency exists.
An ``explosives or munitions emergency response specialist'' is
defined to include all military and non-military personnel trained in
the identification, handling, treatment, transport, and destruction of
explosives or conventional and chemical military munitions. Explosives
and munitions emergency response specialists include DOD Explosives
Ordnance Disposal (EOD) personnel, who are trained to respond to
emergency situations involving military munitions and explosives, DOD
Technical Escort Unit (TEU) personnel, who are trained to respond to
chemical munitions emergencies, and DOE, National Guard, and Coast
Guard specialists who are trained to respond to emergency situations
involving chemical munitions. EOD and TEU personnel respond to on-
installation and off-installation incidents involving military
munitions. They also respond to requests by other Federal agencies or
local civil authorities for assistance with incidents involving non-
military explosives. Non-military explosives or munitions emergency
response specialists include trained personnel in the Bureau of
Alcohol, Tobacco, and Firearms (BATF), Federal Bureau of Investigation
(FBI), Central Intelligence Agency (CIA), Drug Enforcement
Administration (DEA), U.S. Postal Service (USPS), Federal Aviation
Administration (FAA), other parts of the Department of Transportation
(DOT), and the Department of Interior (DOI). State and local
enforcement and emergency response personnel and private sector
explosive specialists also qualify.
Finally, an ``explosives or munitions emergency response'' is
defined as all immediate response activities identified and carried out
by the emergency response specialist to eliminate the threat, including
all handling, render-safe (e.g., methods to defuse or separate the
initiator from the explosive), transportation, treatment (e.g., by
placing the explosive in water), and destruction activities. These
emergency actions might involve defusing, detonation, or other
treatment of ordnance ``in-place,'' or transportation to a safer
location, including to an EOD range, to defuse, detonate, or otherwise
to abate the immediate threat.
Response to Comments
DOD requested that EPA exempt the object of an explosive or
munitions emergency response from the regulatory definition of solid
waste. EPA disagrees since such material is often clearly a RCRA solid
waste (e.g., a buried munition). DOD questioned whether temporary
storage for extenuating circumstances (e.g., adverse weather,
nightfall, or safety considerations) would be allowed under the
emergency response. EPA concurs that temporary storage for such
extenuating circumstances are within the emergency response exemption
from a RCRA permit.
A number of commenters questioned the status of any residuals in
the soil from emergency responses. EPA believes the responsibility for
any hazardous residuals is a factual determination dependent upon the
circumstances surrounding the emergency event. Responsibility could
rest with the person who left or abandoned the munition or explosive,
the landowner, or, possibly, the local authorities. For purposes of
this regulation, EPA does not consider emergency response personnel to
be generators of residuals resulting from immediate responses, and,
therefore, emergency response personnel are not subject to the
regulations governing such generators, unless they are also the owner
of the object. In the case of an EOD unit responding to an incident
involving a military munition, the EOD units are not typically the
``owner'' of the munition nor are they typically the responsible
organization for a military installation. Thus, in those cases that
involve military munitions, the EOD unit would not be responsible for
addressing any residual contamination; however, DOD, the military
Service, or
[[Page 6644]]
other organization (e.g., DOE) would be potentially liable for any
remediation of residual contamination. In EPA's view, it would be
counterproductive to the public safety and the compelling need for
immediate action to require that emergency response personnel
contemplate the environmental liability that might result from their
response to an explosives or munitions emergency. However, after the
emergency response is concluded, any residuals are subject to 40 CFR
262.11 (hazardous waste determination), and if hazardous, to the rest
of 40 CFR parts 260 through 270. The owner of the object of an
emergency response; the owner of the property on which the object of an
emergency response rests or where the emergency response initiates; or
the requestor for an emergency response is responsible for addressing
any residual contamination that results from an emergency response. For
example, if the residuals are hazardous and resulted from an emergency
response involving a military munition, then the military would be
responsible for such residuals. Also, it is not the intent of today's
regulation to impose liability on response personnel to clean up
residuals associated with donor explosives used to destroy the object
in an emergency response.
On a broader scale, DOD raised three concerns regarding the
regulation of emergency responses involving munitions or explosives
under RCRA: (1) the effect of the RCRA land disposal restrictions on
response actions; (2) possible RCRA corrective action liabilities; and
(3) the possibility that treatment permits would be required for areas
``routinely'' used to handle emergencies. To the extent that any of
these issues would delay or complicate responses to emergencies
involving explosive material, EPA shares DOD's concerns. EPA's
objective in issuing today's rule, and in clarifying the applicability
of RCRA to emergency responses, is to remove regulatory impediments to
emergency responses and to promote the safe and prompt management of
explosives and munitions emergencies. EPA agrees with DOD that any
regulatory impediments to prompt responses should be removed. DOD's
three concerns are specifically discussed below.
Concerning the first issue--the application of the RCRA land
disposal restrictions (LDRs) to explosives emergencies--EPA has limited
the applicability of LDR treatment standards for reactive wastes with
respect to unexploded ordnance and other explosive devices that are the
object of an emergency response. While the reactive waste must be
deactivated, treatment of underlying constituents is not required. (See
the table, Treatment Standards for Hazardous Wastes, 40 CFR part 268,
subpart D, which identifies deactivation as the sole treatment
requirement for ``unexploded ordnance and other explosive devices which
have been the subject of an emergency response.'') Thus, an emergency
response specialist does not need to be concerned with the LDR
requirements requiring treatment of underlying hazardous constituents
when determining the course of action in an emergency response. EPA
notes, however, that emergency responses present issues that are
different from routine management of reactive wastes, where there is no
competing consideration of need for immediate action to prevent an
imminent threat. Thus, in non-emergency response situations, the LDRs
do apply. See 61 FR 15568-15569, April 8, 1996. EPA also notes,
however, that DOD is still responsible for any residues that remain
after an emergency response that involves military munitions.
EPA continues to regard open burning/open detonation as treatment,
not constituting land disposal. See 51 FR 40580 (November 7, 1986) and
52 FR 21011 (June 4, 1987). With regard to emergency responses to
explosives involving deactivation or destruction methods other than
open burn/open detonation, EPA notes that the treatment standard for
reactive wastes is deactivation (i.e., removal of the hazardous waste
characteristic of reactivity). See 40 CFR 268.42, Table 1. These
standards are consistent with typical responses of an EOD team to an
explosives emergency, and therefore the RCRA treatment requirements
would not present a problem.
The responding agencies' primary concern on the second issue--the
applicability of RCRA corrective action requirements--is the
possibility that they might incur an obligation to clean up unrelated
contamination elsewhere within the facility boundaries when they
conduct an emergency response. In response to this concern, EPA
emphasizes that emergency response actions are exempt from RCRA
permitting regulations, and, therefore, do not trigger RCRA corrective
action requirements. The RCRA corrective action authorities in sections
3004(u), 3004(v), and 3008(h) apply only to RCRA permitted or interim
status facilities. Thus, these requirements would apply only if the
emergency response took place at a RCRA permitted or interim status
treatment, storage, or disposal facility, and in this case, any
responsibilities for corrective action would fall on the facility
owner, rather than on the responding authority. Furthermore, RCRA
corrective action requirements do not apply to actions taken under the
immediate response provisions of 40 CFR 264.1(g)(8), 265.1(c)(11), and
270.1(c)(3). Finally, in the case of a response conducted under a RCRA
emergency permit (40 CFR 270.61), RCRA corrective action requirements
would be excluded under 40 CFR 270.61(b)(6). This provision requires
that emergency permits exclude conditions that would be inconsistent
with the emergency situation that the permit was addressing. EPA
discussed this point in its RCRA corrective action proposal of July 27,
1990, 55 FR 30806. Finally, if a response action is taken under CERCLA
authority, CERCLA section 107(d)(1) provides that no person ``shall be
liable under this title for costs or damages as a result of actions
taken or omitted in the course of rendering care, assistance, or advice
in accordance with the National Contingency Plan (`NCP') or at the
direction of an onscene coordinator appointed under such plan, with
respect to an incident creating a danger to public health or welfare or
the environment as a result of any releases of a hazardous substance or
the threat thereof.''
DOD's concern on the third issue is that, if the responding agency
repetitively transported explosive devices to a particular off-site
treatment area, a regulator might decide that such a routinely used
area should be subject to RCRA permitting requirements. In emergency
situations, DOD EOD teams and other responding agencies often find it
safer to move explosive material away from the site where it was
found--where it may threaten people or property--and transport it to an
EOD range. In such cases, the fact that the material can be transported
to another location does not necessarily mean that the dangerous
situation is under control or that the emergency is over. Rather, it
indicates a need to find an area where site access is controlled and
the site conditions are known (e.g., the distance to nearby structures
is adequate and there are no subsurface utilities), so that the
material can be disarmed, defused, deactivated, or destroyed with
confidence that an explosion will not cause injury or collateral
damage. In previous guidance, EPA has stated that off-site treatment of
explosives during emergency responses is not subject to permit
requirements, as long as the
[[Page 6645]]
treatment is legitimately part of the emergency response.
Because of this need for safe treatment sites, some EOD ranges may
be regularly used to destroy explosives during emergency responses. The
issue has been raised (and previous EPA guidance suggests) that some
level of ``routine'' use of a particular range should trigger RCRA
permit requirements. In EPA's view, however, the question of whether a
permit is necessary hinges on the nature of each individual response
(i.e., whether or not it involves an emergency), rather than on the
number of times a given area is used for emergency responses. As long
as the response to each individual incident was an emergency response,
a RCRA permit would not be required.
Q. Manifest Exemption for Transport of Hazardous Waste in Lieu of ``On-
Site'' Redefinition
In the November 8, 1995 proposal, EPA proposed to reduce the burden
on generators and TSDFs situated on contiguous properties that are
split by public or private right-of-ways (e.g., roads) by proposing
that the definition of ``on-site'' found at 40 CFR 260.10 be
modified.6 Based on the comments received and the complex issues
raised related to the definition of ``on-site,'' the Agency has
determined that an alternative approach is warranted to reduce the
burden associated with shipments of hazardous waste to contiguous
properties under the same ownership.
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\6\ The current definition is: ``On-site'' means the same or
geographically contiguous property which may be divided by public or
private right-of-way, provided the entrance and exit between the
properties is at a cross-roads intersection, and access is by
crossing as opposed to going along, the right-of-way. Non-contiguous
properties owned by the same person but connected by a right-of-way
which he controls and to which the public does not have access, is
also considered on-site property.''
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Under the current RCRA Subtitle C regulations, if a waste movement
remains ``on-site,'' the waste is not required to be accompanied by a
manifest during transportation, and the 40 CFR part 263 transporter
requirements do not apply to the waste. See 40 CFR 262.20(a), and
263.10 (a) and (b). However, under the current regulations, waste
generated at one location and transported along a publicly accessible
road for temporary consolidated storage or treatment on a contiguous
property also owned by the same person is not considered ``on-site''
transport and would require a Uniform Hazardous Waste Manifest (form
8700-22A) and must be transported by a transporter with an EPA
Identification number. These requirements for manifesting and
transporting hazardous waste do not apply if the wastes are transported
directly across, rather than along, the public road. The proposed
modifications would have expanded the definition of ``on-site'' to
include contiguous properties divided by public or private right-of-
ways even if access to the properties is by traveling along (as opposed
to across) the right-of-way to gain entry.
The proposed change to the definition of ``on-site'' arose in the
context of military munitions because many military installations are
on properties that are, under the DOD ``open'' base policy, split by
``public'' roads. Because many other facilities (e.g., universities or
industrial complexes) are also located on large parcels of land divided
by public or private right-of-ways, the proposed change was extended to
hazardous waste generators and TSDFs in general.
EPA received extensive comment on the proposed modification to the
definition of ``on-site.'' These comments are discussed in more detail
in the response to comments section below. While almost all commenters
were supportive of the concept of allowing transportation without a
manifest between contiguous properties controlled by the same person, a
number of commenters raised questions related to the effect changing
the definition of ``on-site'' would have on other issues such as the
assigning of EPA Identification Numbers to generators, generator
status, and other RCRA regulations and definitions. As stated in the
proposal, the Agency did not intend to affect requirements other than
those directly related to the manifest and transportation. See 60 FR
56483-56484 (November 8, 1995). In considering the original purpose of
the proposed change to the definition of ``on-site'' and the complexity
of the questions that were raised by commenters, the Agency has
identified an alternative method of finalizing the requirements for
transportation without a manifest between contiguous properties
controlled by the same person, that avoids the concerns raised by
commenters.
Therefore, the Agency is not finalizing the proposed modification
of the definition of ``on-site.'' Instead, the Agency is adding new
Sec. 262.20(f) to 40 CFR Part 262, subpart B to exempt from the
manifest requirements shipments of hazardous waste on right-of-ways on
or between contiguous properties and along the perimeter of contiguous
properties controlled by the same person. This manifest exemption is
applicable to all generators, both military and non-military. Section
262.20(f) also restates the exemption found in the current definition
of ``on-site,'' i.e., manifests are also not required for transport
between non-contiguous property when the properties are owned and
controlled by the same person, and connected by a right-of-way to which
the public does not have access. The Agency is not changing regulations
regarding transport on public roads between non-contiguous properties.
40 CFR Part 262, subpart B lays out the general manifesting
requirements that apply to generators who transport, or offer for
transportation, hazardous waste for off-site treatment, storage, or
disposal. (Subpart B also contains an exemption for generators of 100-
1000 kilograms of hazardous waste per month from all of the
requirements of subpart B of Part 262 with respect to the Uniform
Hazardous Waste Manifest, provided the waste is reclaimed under certain
conditions. See 40 CFR 262.20(e).
New 40 CFR Sec. 262.20(f) adds another exemption from the
manifesting requirements, for the movement of hazardous waste on public
roads within or along the border of contiguous property that is divided
by a public or private right-of-way. Additionally, under 40 CFR
263.10(a), use of a transporter with a Hazardous Waste Identification
number is not required for the movement of hazardous waste because of
this manifest exemption. At the same time, the Agency recognizes that
generators and TSDFs taking advantage of this exemption must be able to
respond to an emergency should one occur during the movement of
hazardous waste on public roads within, between, or bordering
contiguous properties. As a result, under Sec. 262.20(f), the Agency is
specifying that the transporter requirements found at Sec. 263.30 and
Sec. 263.31 concerning responding to discharges of hazardous waste on a
public right-of-way will continue to apply to any discharge of
hazardous waste on a public right-of-way.
Further, the Agency has established contingency and emergency
response protocols that require facilities to be prepared for
emergencies that occur on-site. 40 CFR 262.34(a)(4) requires large
quantity generators to comply with the requirements for owners or
operators found at 40 CFR part 265 subparts C (Preparedness and
Prevention) and D (Contingency Plan and Emergency Procedures), with the
requirements at Sec. 265.16 for personnel training, and with the waste
analysis plan requirements at 40 CFR 268.7(a)(4).
[[Page 6646]]
Similarly, small quantity generators are subject to reduced emergency
preparedness, response, and reporting requirements that are laid out in
Sec. 262.34(d)(5) and are also subject to the preparedness and
prevention requirements found at 40 CFR part 265, subpart C.
These contingency and emergency response protocols include measures
that are designed to ensure that emergencies that take place are
handled efficiently and effectively. They include the designation of an
emergency coordinator who is accessible and who is knowledgeable about
the operations and activities at the location and who can coordinate
emergency response measures. These provisions also require that all
employees at a site are familiar with the proper waste handling and
emergency response procedures relevant to their responsibilities during
normal facility operations and emergencies. Large quantity generators
are responsible for developing a contingency plan that, among other
things, must contain a description of emergency arrangements agreed to
by local police departments, fire departments, hospitals, contractors,
and State and local emergency response teams to coordinate emergency
services. This plan must be reviewed and immediately amended under
certain circumstances as specified in 40 CFR 265.54, including when the
applicable regulations are revised and when the facility changes in a
way that materially increases the potential for fires, explosions, or
releases of hazardous waste or changes the response necessary in an
emergency. Additionally, should an emergency occur, the emergency
coordinator must be able to assess any hazards from the release, and
help appropriate officials decide whether local areas should be
evacuated.
Generators taking advantage of the manifest exemption being
finalized today must, therefore, consider how the emergency coordinator
is to be kept informed of waste movement activities under the new
circumstances involving shipments on public roads without a manifest,
and how an emergency on a public road within, between, or on the
perimeter of contiguous properties is to be managed so that it
minimizes exposure to local areas surrounding the property.
Whether waste no longer subject to the manifest and transportation
requirements described above is subject to Department of Transportation
(DOT) hazardous material shipping requirements will depend on whether
that material is regulated under any DOT hazard class other than
materials classified by DOT as ``hazardous waste.'' As mentioned in the
proposed rule, the Hazardous Materials Regulations (HMR, 49 CFR parts
171-180) define a hazardous waste as any material that is subject to
the Uniform Hazardous Waste Manifest Requirements of the EPA specified
in 40 CFR part 262 [49 CFR 171.8]. If a material is not subject to
EPA's RCRA manifest requirements, it is not considered a ``hazardous
waste'' by DOT. However, such material is still regulated as a
``hazardous material'' and is subject to the HMR if it meets the
defining criteria for one or more of the DOT hazard classes. Therefore,
for these shipments on public right-of-ways, generators and/or TSDFs
must decide if the waste falls under any of the other DOT hazard
classes in order to determine if compliance with the DOT requirements
under CFR parts 171-180 is required.
EPA believes that this exemption from the Uniform Hazardous Waste
Manifest will result, on balance, in an increase in protection of human
health and the environment. EPA believes that the current requirement
that a manifest be completed and that a hazardous waste transporter be
used to transport shipments between contiguous properties may be
discouraging consolidation within a generator's or TSDF's site,
resulting in more locations where potential exposure to hazardous waste
exists and more expense by the generator or TSDF. Removing barriers to
consolidation of waste in one central area should reduce the
possibility that the public and the environment could come into contact
with hazardous waste because one area is easier to control and can be
better located than numerous smaller areas.
EPA also believes that facilitating central consolidation will
allow generators and TSDFs to locate such consolidation sites in more
remotely located areas or in areas allowing faster emergency response
than they would if confined to the boundaries within right-of-ways,
thereby increasing public safety should an accident occur. The new
exemption at 40 CFR 262.20(f) gives generators and TSDFs such as
military bases and universities more flexibility to determine where
consolidation areas are situated. In addition, EPA believes, along with
numerous commenters, that this exemption will have the added benefit of
facilitating the building of safer accumulation areas because
generators and TSDFs may be more likely with limited resources to
exceed regulatory requirements for consolidation areas if they are
responsible for fewer consolidation sites overall.
Since 40 CFR part 263, under Sec. 263.10(a), only applies to
transporters subject to a manifest under part 262, the persons
transporting wastes under today's Sec. 262.20(f) are exempt from part
263 (most notably from the Sec. 263.11 requirement for a transporter
identification number), except as discussed above, Sec. 262.20(f)
requires compliance with Secs. 263.30 and 263.31 for immediate action
in response to a discharge.
Today's rule also exempts the generator from Sec. 262.32(b) for
certain container marking requirements, but not from the DOT packaging,
labeling, marking, or placarding requirements of Secs. 262.30, 262.31,
262.32, and 262.33 because these public roads are still considered by
EPA to be ``off-site''; nor from the Sec. 262.34(a)(2) and (3),
(c)(1)(ii) and (2), (d)(4), and (e) container and tank labeling
requirements. Section 262.34 regarding accumulation time is not
affected by today's rule because the definition of ``on-site'' is not
being changed. Section 262.40 regarding requirements to keep copies of
manifests is not included in the rule because it is not applicable
since the manifest is not required. The biennial report requirements in
Sec. 262.41 are likewise unchanged by today's rule.
EPA believes the totality of these changes regarding the
applicability of the ``manifest system'' (when considered with the
existing emergency prevention and response, etc. requirements, the
continued applicability of Secs. 263.30 and 263.31, the facilitated
storage consolidations, the marking requirements in Sec. 262.34, the
continued applicability of the DOT hazardous materials standards, in
most cases, and the fact that this transportation is on or along
contiguous property controlled by the same person, as discussed above),
are consistent with the directives in RCRA sections 3002(a) and 3003(a)
that EPA establish regulations ``as may be necessary'' to protect human
health and the environment.
Response to Comments
The Agency received numerous comments on the proposed redefinition
of ``on-site'' in two main areas: (1) The proposed change to the basic
definition of ``on-site'' and its impact on current hazardous waste
management practices and (2) issues associated with Department of
Transportation (DOT) and CERCLA protectiveness on public access roads
separating a larger facility. EPA also requested comments on whether
other requirements of the RCRA program would be affected by a
redefinition of ``on-site.''
[[Page 6647]]
With respect to the proposed changes to the definition of ``on-
site,'' almost all the commenters supported the concept behind the
proposed redefinition--the manifest exemption. (Many of these, however,
suggested simplified language for redefining ``on-site.'') Only one
commenter (associated with the transporters) opposed the proposal,
although three commenters suggested postponing the final rule until a
more thorough analysis could be done. Even so, the Agency received many
comments raising issues about other requirements unrelated to the
manifest that might be affected by changing the definition of ``on-
site.'' For example, many of the commenters who supported the idea of
changing the definition of ``on-site'' raised questions about how the
change would affect EPA Identification Numbers, Land Disposal
Restrictions paper work requirements, corrective action, and generator
status. One of the most common questions was whether the proposed
change to the definition of ``on-site'' would cause a change in
generator status due to the merging of several individual locations
into one larger location under the new definition.
One commenter who questioned the proposed change to the definition
of ``on-site'' expressed concerns about the redesignation of sites
based on the new definition and specifically asked whether adjacent
military facilities (e.g., Army and Air Force) would be considered
``on-site'' under the new definition. The commenter also expressed
concern over the effect such a redefinition would have on sites
currently on the National Priorities List (NPL) that are contiguous to
properties not on the NPL. Another commenter who questioned the
proposed change argued that some universities wanting a permit to store
hazardous waste for more than 90 days may find that the entire campus
is subject to corrective action because of a change in the definition
of ``on-site.'' Several commenters argued for a more thorough
evaluation of the impacts on the related terms ``site'' and ``off-
site,'' the effects of the proposed definitional change on definitions
such as ``facility,'' the relationship to the term ``designated
facility'' found at Sec. 260.10, the impact on accumulation provisions
found at Sec. 262.34 and the impact on the current definition of
``transfer facility'' found at Sec. 260.10.
The Agency agrees with these commenters that a change to the
definition of ``on-site'' could cause a great deal of confusion in many
areas of RCRA and CERCLA that are based on the concept of ``site'' and
``facility.'' In addition to causing confusion, such a change might
also inadvertently make substantive changes to a number of parts of the
RCRA program other than manifesting and transportation. As stated in
the proposal, EPA did not intend to affect requirements other than the
requirement that a manifest accompany hazardous waste shipments and
whether part 263 transportation requirements apply. Therefore, after
reviewing the comments received on this issue, EPA has decided to avoid
the potential for unforeseen, adverse consequences and is not changing
the definition of ``on-site.''
The Agency does, however, continue to believe that it is
appropriate to revise the regulations to allow transport along public
and private right-of-ways that divide contiguous properties without
manifests and the need to use hazardous waste transporters. Thus, the
Agency has identified an alternative way to make this change to the
regulations without causing potentially unintended consequences of
changing the definition of ``on-site.'' This alternative modifies 40
CFR Part 262, subpart B, to exempt shipments of hazardous waste on and
along the perimeter of contiguous properties controlled by the same
person from the manifest requirements. This change avoids any revision
to the definition of ``on-site.'' The Agency reiterates that this
revision is a change only to the applicability of manifesting and 40
CFR 263 requirements and does not make any changes to the existing
concepts of ``on-site,'' ``site,'' ``facility'' or related terms for
any other purpose in the RCRA or CERCLA programs. Also, it does not
affect the definition of ``contiguous'' or EPA's interpretations as to
whether ``contiguous properties'' are owned or under the control of the
same person. For example, EPA considers different agencies within the
Federal government and different services to be different ``persons.''
Therefore, in the example cited by one commenter, wastes could not be
transported between adjacent Army and Air Force bases without a
manifest.
EPA received numerous comments requesting clarification on how
generator identification numbers would be affected and the related
effect on generator status a change in the definition of on-site would
create. The Agency understands that the policy regarding issuing
generator identification numbers is not explicit in Federal
regulations, and thus flexibility exercised by authorized States may
result in differing interpretations of this policy by State
implementers. However, the Agency only intended to address the
applicability of the manifest and related transportation requirements
and did not intend to address the issue of generator identification
numbers as part of this rulemaking. Eliminating State flexibility could
have significant impacts on particular facilities, and those impacts
could be viewed as either positive or negative. Examples of all kinds
were cited by commenters. Though EPA acknowledges the potential for
confusion and different application of identification number
assignments, the Agency has not analyzed the potential impacts fully
and is not changing either Federal regulation or policy on this issue.
The definition of ``on-site'' historically has been used in many
States to determine when a manifest should accompany a shipment of
hazardous waste and when part 263 transporter requirements apply. While
the Agency establishes this relationship in several preamble
discussions (see 45 FR 12723, February, 26, 1980 and 45 FR 33069, May
19, 1980), no similar preamble discussion exists on the nature of the
relationship of the term ``on-site'' to generator identification
numbers.
EPA's past policy interpretations have tended to associate
generator identification numbers with sites for which an effective
connecting right-of-way exists. In many cases the Agency has used the
definition of ``on-site'' as the delimiting tool for determining when
an identification number is needed. However, exceptions exist where
there may be, for example, more than one independent business operating
on a contiguous property and where a cogenerator relationship exists.
EPA has relied on each State implementing agency to establish its
own method of issuing generator identification numbers and to make site
specific determinations where appropriate. The Agency understands that
variations may exist in the method used to issue generator
identification numbers and therefore recommends that a generator
contact the state in which the site is located when obtaining an
identification number and with any questions regarding an individual
location.
Some commenters requested more detailed information on travel
distances. For example, a commenter questioned what was meant by a
``short'' stretch of road (public right-of-way) in the proposed
preamble discussion, contrasting the benefits of consolidation to the
transportation without a manifest along a short stretch of road to
which the public has access. Another argued that a limit should be
placed on how far a shipment could travel along a road,
[[Page 6648]]
and suggested that waste be allowed to be moved only two miles. The
Agency sees no reason to limit the length of movement along roads on
(or on the boundary of) property owned by the same person since many
generators taking advantage of the new exemptions are located on very
large properties that routinely require them to travel for more than
two miles. One purpose of the manifest requirement is to assure receipt
of the waste, an object that is independent of shipping distance, but
enhanced in this case because the shipper and the receiver are the
same, and the material remains within, or on the border of, the
properties owned or operated by the shipper/receiver.
Commenters asked for clarification about the transportation routes
allowed under the proposed rule. Five commenters suggested that EPA
clarify that waste can be transported along the perimeter of the
property. The Agency is finalizing this exemption for movement on roads
along the perimeter as well as within the contiguous properties
because, as discussed above, it is persuaded that there are adequate
safeguards related to emergency response and cleanup provided by
today's final rule. Further, if a discharge of hazardous waste should
occur on a perimeter public road, the generator and/or TSDF property
still borders the right-of-way, which would lead to better control of
the remediation process. Also, the purpose of the manifest is to assure
that waste gets to the receiving unit, an object that is independent of
whether the road is on the perimeter or within the property, and that
is enhanced when the contiguous property is controlled by the same
person.
Three commenters suggested EPA specifically include contiguous
properties ``touching corners'' or ``diagonally across'' from each
other. EPA considers such examples to be contiguous properties
separated by a right-of-way and, therefore, included in today's rule.
Also, access would generally be gained by travel along the perimeter of
the properties so the inclusion of the ``along the border'' language
enables the diagonal corners situation to benefit by today's rule.
Four commenters expressed a desire for the Agency to expand the
scope of ``on-site'' to include nearby non-contiguous areas owned or
under the control of the same person, suggesting that EPA limit the
distance to two miles, several miles, or some other distance. The
Agency did not intend to change the regulations regarding the
transportation of hazardous waste along public roads to non-contiguous
properties. The current definition of ``on-site'' already allows for
the movement of waste to non-contiguous areas without a manifest as
long as the public does not have access to the right-of-way that joins
the two properties. Beyond this, the Agency does not agree that
movement of wastes between non-contiguous properties along right-of-
ways to which the public has access is warranted given the increased
possibility that the public could come in contact with the waste should
a discharge occur under this scenario and the generator would no longer
have control over bordering property.
The proposal also requested comment on whether or not the
authorities under CERCLA and/or DOT are sufficient to protect human
health and the environment as they relate to the management of
potential spills of waste that, as a result of this new exemption,
would not be manifested under RCRA as previously required and would not
be subject to the requirements of Part 263. The Agency requested
comments on whether or not the RCRA requirements in 40 CFR 263.30 and
263.31 should continue to apply to any discharge of hazardous waste
during transportation of hazardous waste on a public right-of-way when
the waste is transported within a contiguous property without a
manifest. Sections 263.30 and 263.31 require that immediate action be
taken in the event of a discharge including notifying local authorities
and the National Response Center and cleaning up the discharge. Most of
the commenters believed that the alternate authorities of CERCLA and
DOT are protective enough and that the pressure of public awareness and
corporate liability concerning spills would help ensure that spills are
prevented, and if they occur are contained and cleaned up quickly.
However, the Agency also received comments supporting the suggested
alternative approach of requiring the ``on-site'' hauler using a public
right-of-way to follow 40 CFR 263.30 and 263.31. One commenter cited
that response times for cleanup actions under CERCLA do not promote an
expeditious cleanup and that DOT regulations are inadequate. DOT and
CERCLA reporting requirements would apply to such releases, but those
authorities do not necessarily require an actual cleanup of the
release.
In reviewing the options and the comments received, the Agency has
decided that the requirements found at Secs. 263.30 and 263.31 will
continue to apply to any discharge of hazardous waste on a public
right-of-way even if it is not accompanied by a manifest and is not
subject to the other transport requirements found at 40 CFR part 262,
subparts B and C and 40 CFR part 263. The Agency is concerned here not
with overall RCRA requirements to clean up a spill, since RCRA does
apply when hazardous waste is disposed of or discharged onto the
ground, but with the timeliness of response action needed to contain
and remediate a spill which will be enhanced by the clarity of
responsibility such references afford.
V. State Authority
Under RCRA section 3006, EPA may authorize a State to administer
and enforce the RCRA hazardous waste program. See 40 CFR part 271.
After receiving authorization, the State administers the program in
lieu of the Federal government, although EPA retains enforcement
authority under RCRA sections 3008, 3013, and 7003. Because the new
Federal requirements in today's final rule are non-HSWA, they are not
Federally enforceable in an authorized State until the necessary
changes to a States' authorization have been approved by EPA.\7\ See
RCRA section 3006, 42 U.S.C. 6926.
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\7\ Under section 3006(g) of RCRA, enacted as part of the
Hazardous and Solid Waste Amendments (HSWA) of 1984, new
requirements imposed by HSWA take effect in authorized States at the
same time as they do in unauthorized States--as long as the new
requirements are more stringent than the previous requirements. EPA
implements these new requirements until the State is authorized for
them. Since today's proposal is not issued under HSWA authority,
however, section 3006(g) does not come into play.
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Under RCRA, authorized States are required to review and, if
necessary, to modify their programs when EPA promulgates Federal
standards that are more stringent or broader in scope than existing
Federal standards. This is because under RCRA section 3009, States are
barred from implementing requirements that are less stringent than the
Federal program. See also 40 CFR 271.21.
In two respects, EPA considers today's final rule to be more
stringent than current Federal requirements: (1) the requirement that
military installations retrieve munitions fired off-range or keep a
record of the event (Sec. 266.202(d)), and (2) the requirement that
military personnel responding to immediate threats involving military
munitions maintain records of the response (Secs. 264.1(g)(8)(iv),
265.1(c)(11)(iv), and 270.1(c)(3)(iii)). Authorized States must adopt
these requirements as part of their State programs and apply to EPA for
approval of their program revisions. Section 271.21 sets forth the
procedures and deadlines for State program revisions.
RCRA section 3009, however, allows States to impose standards that
are more
[[Page 6649]]
stringent or more extensive (i.e., broader) in scope than those in the
Federal program (see also 40 CFR 271.1(i)(1)). Thus, for those Federal
changes that are less stringent, or reduce the scope of the Federal
program, States are not required to modify their programs. The less
stringent portions of today's rule are the following: (1) the manifest
exemption for transport on right-of-ways on contiguous properties
(Sec. 262.20(f)), (2) the RCRA manifest exemption for the off-site
shipment of unused waste munitions from one military installation to
another (Sec. 266.203), and (3) the conditional exemption for waste
munitions storage (Sec. 266.205).
The rest of the requirements in today's rule, in EPA's view, are
neither more nor less stringent than current regulatory requirements;
they are either reiterations or clarifications of the existing EPA
regulations or policies.
Although States are only required to adopt requirements that are
more stringent, in recognition of Congress' intent in passing RCRA
section 3004(y), DOD's mission to provide for National defense, and the
Department's nation-wide presence, EPA strongly urges States to adopt
all aspects of today's final rule (including the clarifying as well as
less stringent sections) so as to ensure clear, consistent guidelines
for handlers of waste military munitions, State regulators, and the
public. EPA believes that the standards promulgated today properly
implement the goals of RCRA section 3004(y) to ensure the safe and
proper management of military munitions, and add clarity regarding the
identification and management of military munitions as hazardous
wastes. Therefore, EPA encourages States to adopt these regulations as
quickly as their legislative and regulatory processes will allow.
VI. Administrative Requirements/Compliance With Executive Order
A. Regulatory Impact Analysis Under Executive Order 12866
Under Executive Order No. 12866 [58 FR 51735 (October 4, 1993)],
the Agency must determine whether the regulatory action is
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and to the requirements of the Executive
Order, which include assessing the costs and benefits anticipated as a
result of the proposed regulatory action. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
EPA has determined that today's final rule is a significant rule
under Executive Order 12866 due to the nature of the policy issues
raised. EPA estimates that today's rule results in national annual
costs of $100,000 per year, and national annual savings of
approximately $1,200,000 to $2,200,000 per year, for a net savings of
$1,100,000 to 2,100,000 per year. For more information on the cost
impacts of today's final rule, see the Economic Impact Analysis of the
Final Munitions Rule which is part of the docket for this rule.
1. Cost Analysis
Today's rule focuses on several significant issues: (1)
identification of munitions as waste; (2) transportation of munitions
identified as wastes; (3) emergency response actions; and (4) storage
standards for waste munitions. In many instances, EPA has concluded
that current Department of Defense standards meet RCRA standards and
imposition of RCRA standards would result in regulations that are
redundant.
Over the next ten years, EPA estimates that the proposed regulation
will result in annual costs of approximately $100,000 per year to the
Department of Defense. The most significant costs are related to the
need for permit modifications for treatment and disposal facilities
receiving off-site wastes. However, today's final notice results in
avoided costs on the order of $1,200,000 to $2,200,000 per year over
baseline. Baseline is based on an analysis of current RCRA/CERCLA and
DOD's current operations.
The principal sources of annual savings include avoided costs for
new permits, contingency plans, manifests, and retrofitted storage
units.
EPA did not develop specific costs for range closure and clean up
(e.g., prior to property transfer) under RCRA sections 7003, 3004(u) or
(v), 3008(h), CERCLA, the Defense Environmental Restoration Program, or
Base Realignment and Closure. Such costs are site-specific, and in
general, the Agency assumed that these costs would be similar under
each authority or program. Furthermore, these costs would not be
relevant to today's rule, since EPA is postponing action on defining
how RCRA applies to closed ranges.
EPA also did not develop specific costs for other Federal agencies
that may be affected by this rulemaking: Coast Guard, National Guard,
DOE, NASA, FBI, and BTAF. This rule would apply in the same manner as
it does for the Department of Defense and the relative savings that
would be realized by the Military is similar to the savings that would
be realized by these other affected agencies.
2. Benefits Analysis
EPA is finalizing the concept that unused munitions generally do
not become hazardous waste subject to regulation until they are removed
from storage for transportation to a disposal unit. This approach
recognizes that current DOD storage regulations have been successful in
protecting human health and the environment, and that additional
requirements would be redundant and disruptive. (See section IV.B.1.f
of the proposed rule preamble). EPA is also exempting waste military
munitions from RCRA manifest and other requirements when transported
because DOD standards provide comparable protection. The benefit of
today's rule is an annual cost savings of approximately $1,200,000 to
$2,200,000, due to avoided retrofits, permits, contingency plans, and
manifest costs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 requires Federal
agencies to consider ``small entities'' throughout the regulatory
process. Section 603 of the RFA requires an initial screening analysis
to be performed to determine whether small entities will be adversely
affected by the regulation. If affected small entities are identified,
regulatory alternatives must be considered to mitigate the potential
impacts. Small entities as described in the Act are only those
``businesses, organizations and governmental jurisdictions subject to
regulation.''
EPA has determined that today's rule will primarily affect Federal
agencies, such as the Department of Defense, and therefore few, if any,
small entities will be adversely affected. Furthermore, since today's
final notice generally provides savings over current requirements, EPA
believes that any small entities engaged in activity covered by the
rule will not be adversely affected. Therefore, EPA provides the
following certification under the Regulatory Flexibility Act, as
[[Page 6650]]
amended by the Small Business Regulatory Enforcement Fairness Act.
Pursuant to the provision at 5 U.S.C. 605(b), I hereby certify that
this rule will not have a significant economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1980, 44 USC 3501 et seq.,
authorizes the Director of OMB to review certain information collection
requests by Federal agencies. EPA has determined that the record
keeping and reporting requirements of this proposed rule do not
constitute a ``collection of information'' as defined in 44 USC 3502(4)
because they apply to Federal entities (i.e., DOD, DOE, Coast Guard,
and National Guard), or for those sections that apply to non-Federal
entities (e.g., emergency responses) they do not impose new record
keeping or reporting requirements.
D. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMBRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Tribal, and local
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When a written statement is needed for an EPA rule, section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, giving
them meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising them on compliance with the
regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. EPA has estimated that the total potential cost
to State, local, and Tribal governments would not exceed approximately
$200,000 per year over ten years. Thus, today's rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
VII. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2), therefore, the effective date of the rule is not
affected.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
40 CFR Part 262
Emergency responses, Exports, Hazardous materials transportation,
Hazardous waste, Imports, Labeling, Packaging and containers, Reporting
and recordkeeping requirements.
40 CFR Part 263
Emergency responses, Hazardous materials transportation, Hazardous
waste, Reporting and recordkeeping requirements.
40 CFR Part 264
Air pollution control, Emergency responses, Hazardous waste,
Insurance, Storage containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Treatment and disposal.
40 CFR Part 265
Environmental Protection, Air pollution control, Emergency
responses, Hazardous waste, Insurance, Storage containers, Reporting
and recordkeeping requirements, Security measures, Surety bonds,
Treatment and disposal.
40 CFR Part 266
Energy, Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
40 CFR Part 270
Administrative practice and procedure, Confidential business
information, Emergency responses, Hazardous materials transportation,
Hazardous waste, Permit application requirements, Permit modifications,
Reporting and recordkeeping requirements.
Dated: February 3, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, 40 CFR Parts 260, 261,
262, 263, 264, 265, 266, and 270 are amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937-6939, and 6974.
2. Section 260.10 is amended by adding the following definitions,
in alphabetical order, to read as follows:
Sec. 260.10 Definitions.
* * * * *
Explosives or munitions emergency means a situation involving the
suspected or detected presence of unexploded ordnance (UXO), damaged or
deteriorated explosives or munitions, an improvised explosive device
(IED), other potentially explosive material or device, or other
potentially harmful military chemical munitions or device, that creates
an actual or potential imminent threat to human health, including
safety, or the environment, including property, as determined by an
explosives or munitions emergency response specialist. Such situations
may require immediate and expeditious action by an explosives or
munitions emergency response specialist to control, mitigate, or
eliminate the threat.
Explosives or munitions emergency response means all immediate
response activities by an explosives and munitions emergency response
specialist to control, mitigate, or
[[Page 6651]]
eliminate the actual or potential threat encountered during an
explosives or munitions emergency. An explosives or munitions emergency
response may include in-place render-safe procedures, treatment or
destruction of the explosives or munitions and/or transporting those
items to another location to be rendered safe, treated, or destroyed.
Any reasonable delay in the completion of an explosives or munitions
emergency response caused by a necessary, unforeseen, or uncontrollable
circumstance will not terminate the explosives or munitions emergency.
Explosives and munitions emergency responses can occur on either public
or private lands and are not limited to responses at RCRA facilities.
Explosives or munitions emergency response specialist means an
individual trained in chemical or conventional munitions or explosives
handling, transportation, render-safe procedures, or destruction
techniques. Explosives or munitions emergency response specialists
include Department of Defense (DOD) emergency explosive ordnance
disposal (EOD), technical escort unit (TEU), and DOD-certified civilian
or contractor personnel; and other Federal, State, or local government,
or civilian personnel similarly trained in explosives or munitions
emergency responses.
* * * * *
Military munitions means all ammunition products and components
produced 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 non-nuclear components of
nuclear devices, managed under DOE's nuclear weapons program after all
required sanitization operations under the Atomic Energy Act of 1954,
as amended, have been completed.
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 is revised to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.2 is amended by removing the period at the end of
paragraph (a)(2)(iii) and adding a semicolon followed by ``or''; and by
adding new paragraph (a)(2)(iv) to read as follows:
Sec. 261.2 Definition of solid waste.
(a) * * *
(2) * * *
(iii) * * *; or
(iv) A military munition identified as a solid waste in 40 CFR
266.202.
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
1. The authority citation for part 262 is revised to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
2. Section 262.10 is amended by adding, before the notes, new
paragraph (i) to read as follows:
Sec. 262.10 Purpose, scope, and applicability.
* * * * *
(i) Persons responding to an explosives or munitions emergency in
accordance with 40 CFR 264.1(g)(8)(i)(D) or (iv) or 265.1(c)(11)(i)(D)
or (iv), and 270.1(c)(3)(i)(D) or (iii) are not required to comply with
the standards of this part.
* * * * *
3. Section 262.20 is amended by adding new paragraph (f) to read as
follows:
Sec. 262.20 General requirements.
* * * * *
(f) The requirements of this subpart and Sec. 262.32(b) do not
apply to the transport of hazardous wastes on a public or private
right-of-way within or along the border of contiguous property under
the control of the same person, even if such contiguous property is
divided by a public or private right-of-way. Notwithstanding 40 CFR
263.10(a), the generator or transporter must comply with the
requirements for transporters set forth in 40 CFR 263.30 and 263.31 in
the event of a discharge of hazardous waste on a public or private
right-of-way.
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
1. The authority citation for part 263 is revised to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937 and 6938.
2. Section 263.10 is amended by adding new paragraphs (e) and (f)
to read as follows:
Sec. 263.10 Scope.
* * * * *
(e) The regulations in this part do not apply to transportation
during an explosives or munitions emergency response, conducted in
accordance with 40 CFR 264.1(g)(8)(i)(D) or (iv) or 265.1(c)(11)(i)(D)
or (iv), and 270.1(c)(3)(i)(D) or (iii).
(f) Section 266.203 of this chapter identifies how the requirements
of this part apply to military munitions classified as solid waste
under 40 CFR 266.202.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
2. Section 264.1 is amended by adding new paragraphs (g)(8)(i)(D),
(g)(8)(iv), and (i) to read as follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(8) * * *
(i) * * *
(D) An immediate threat to human health, public safety, property,
or the environment, from the known or suspected presence of military
munitions, other explosive material, or an explosive device, as
determined by an explosive or munitions emergency response specialist
as defined in 40 CFR 260.10.
* * * * *
(iv) In the case of an explosives or munitions emergency response,
if a Federal, State, Tribal or local official acting within the scope
of his or her official responsibilities, or an explosives or munitions
emergency response specialist, determines that immediate removal of the
material or waste is necessary to protect human health or
[[Page 6652]]
the environment, that official or specialist may authorize the removal
of the material or waste by transporters who do not have EPA
identification numbers and without the preparation of a manifest. In
the case of emergencies involving military munitions, the responding
military emergency response specialist's organizational unit must
retain records for three years identifying the dates of the response,
the responsible persons responding, the type and description of
material addressed, and its disposition.
* * * * *
(i) Section 266.205 of this chapter identifies when the
requirements of this part apply to the storage of military munitions
classified as solid waste under Sec. 266.202 of this chapter. The
treatment and disposal of hazardous waste military munitions are
subject to the applicable permitting, procedural, and technical
standards in 40 CFR parts 260 through 270.
3. Section 264.70 is revised to read as follows:
Sec. 264.70 Applicability.
The regulations in this subpart apply to owners and operators of
both on-site and off-site facilities, except as Sec. 264.1 provides
otherwise. Sections 264.71, 264.72, and 264.76 do not apply to owners
and operators of on-site facilities that do not receive any hazardous
waste from off-site sources, and to owners and operators of off-site
facilities with respect to waste military munitions exempted from
manifest requirements under 40 CFR 266.203(a). Section 264.73(b) only
applies to permittees who treat, store, or dispose of hazardous wastes
on-site where such wastes were generated.
4. Part 264 is amended by adding new subpart EE, consisting of
Secs. 264.1200 through 264.1202, to read as follows:
Subpart EE--Hazardous Waste Munitions and Explosives Storage
Sec.
264.1200 Applicability.
264.1201 Design and operating standards.
264.1202 Closure and post-closure care.
Sec. 264.1200 Applicability.
The requirements of this subpart apply to owners or operators who
store munitions and explosive hazardous wastes, except as Sec. 264.1
provides otherwise. (NOTE: Depending on explosive hazards, hazardous
waste munitions and explosives may also be managed in other types of
storage units, including containment buildings (40 CFR part 264,
subpart DD), tanks (40 CFR part 264, subpart J), or containers (40 CFR
part 264, subpart I); See 40 CFR 266.205 for storage of waste military
munitions).
Sec. 264.1201 Design and operating standards.
(a) Hazardous waste munitions and explosives storage units must be
designed and operated with containment systems, controls, and
monitoring, that:
(1) Minimize the potential for detonation or other means of release
of hazardous waste, hazardous constituents, hazardous decomposition
products, or contaminated run-off, to the soil, ground water, surface
water, and atmosphere;
(2) Provide a primary barrier, which may be a container (including
a shell) or tank, designed to contain the hazardous waste;
(3) For wastes stored outdoors, provide that the waste and
containers will not be in standing precipitation;
(4) For liquid wastes, provide a secondary containment system that
assures that any released liquids are contained and promptly detected
and removed from the waste area, or vapor detection system that assures
that any released liquids or vapors are promptly detected and an
appropriate response taken (e.g., additional containment, such as
overpacking, or removal from the waste area); and
(5) Provide monitoring and inspection procedures that assure the
controls and containment systems are working as designed and that
releases that may adversely impact human health or the environment are
not escaping from the unit.
(b) Hazardous waste munitions and explosives stored under this
subpart may be stored in one of the following:
(1) Earth-covered magazines. Earth-covered magazines must be:
(i) Constructed of waterproofed, reinforced concrete or structural
steel arches, with steel doors that are kept closed when not being
accessed;
(ii) Designed and constructed:
(A) To be of sufficient strength and thickness to support the
weight of any explosives or munitions stored and any equipment used in
the unit;
(B) To provide working space for personnel and equipment in the
unit; and
(C) To withstand movement activities that occur in the unit; and
(iii) Located and designed, with walls and earthen covers that
direct an explosion in the unit in a safe direction, so as to minimize
the propagation of an explosion to adjacent units and to minimize other
effects of any explosion.
(2) Above-ground magazines. Above-ground magazines must be located
and designed so as to minimize the propagation of an explosion to
adjacent units and to minimize other effects of any explosion.
(3) Outdoor or open storage areas. Outdoor or open storage areas
must be located and designed so as to minimize the propagation of an
explosion to adjacent units and to minimize other effects of any
explosion.
(c) Hazardous waste munitions and explosives must be stored in
accordance with a Standard Operating Procedure specifying procedures to
ensure safety, security, and environmental protection. If these
procedures serve the same purpose as the security and inspection
requirements of 40 CFR 264.14, the preparedness and prevention
procedures of 40 CFR part 264, subpart C, and the contingency plan and
emergency procedures requirements of 40 CFR part 264, subpart D, then
these procedures will be used to fulfill those requirements.
(d) Hazardous waste munitions and explosives must be packaged to
ensure safety in handling and storage.
(e) Hazardous waste munitions and explosives must be inventoried at
least annually.
(f) Hazardous waste munitions and explosives and their storage
units must be inspected and monitored as necessary to ensure explosives
safety and to ensure that there is no migration of contaminants out of
the unit.
Sec. 264.1202 Closure and post-closure care.
(a) At closure of a magazine or unit which stored hazardous waste
under this subpart, the owner or operator must remove or decontaminate
all waste residues, contaminated containment system components,
contaminated subsoils, and structures and equipment contaminated with
waste, and manage them as hazardous waste unless Sec. 261.3(d) of this
chapter applies. The closure plan, closure activities, cost estimates
for closure, and financial responsibility for magazines or units must
meet all of the requirements specified in subparts G and H of this
part, except that the owner or operator may defer closure of the unit
as long as it remains in service as a munitions or explosives magazine
or storage unit.
(b) If, after removing or decontaminating all residues and making
all reasonable efforts to effect removal or decontamination of
contaminated components, subsoils, structures, and equipment as
required in paragraph (a) of this section, the owner or operator finds
that not all contaminated subsoils can be practicably removed or
decontaminated, he or she must close the facility and
[[Page 6653]]
perform post-closure care in accordance with the closure and post-
closure requirements that apply to landfills (Sec. 264.310).
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for Part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936 and 6937, unless otherwise noted.
2. Section 265.1 is amended by adding new paragraphs (c)(11)(i)(D),
(c)(11)(iv), and (f) to read as follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(c) * * *
(11) * * *
(i) * * *
(D) An immediate threat to human health, public safety, property,
or the environment, from the known or suspected presence of military
munitions, other explosive material, or an explosive device, as
determined by an explosive or munitions emergency response specialist
as defined in 40 CFR 260.10.
* * * * *
(iv) In the case of an explosives or munitions emergency response,
if a Federal, State, Tribal or local official acting within the scope
of his or her official responsibilities, or an explosives or munitions
emergency response specialist, determines that immediate removal of the
material or waste is necessary to protect human health or the
environment, that official or specialist may authorize the removal of
the material or waste by transporters who do not have EPA
identification numbers and without the preparation of a manifest. In
the case of emergencies involving military munitions, the responding
military emergency response specialist's organizational unit must
retain records for three years identifying the dates of the response,
the responsible persons responding, the type and description of
material addressed, and its disposition.
* * * * *
(f) Section 266.205 of this chapter identifies when the
requirements of this part apply to the storage of military munitions
classified as solid waste under Sec. 266.202 of this chapter. The
treatment and disposal of hazardous waste military munitions are
subject to the applicable permitting, procedural, and technical
standards in 40 CFR parts 260 through 270.
3. Section 265.70 is revised to read as follows:
Sec. 265.70 Applicability.
The regulations in this subpart apply to owners and operators of
both on-site and off-site facilities, except as Sec. 265.1 provides
otherwise. Sections 265.71, 265.72, and 265.76 do not apply to owners
and operators of on-site facilities that do not receive any hazardous
waste from off-site sources, and to owners and operators of off-site
facilities with respect to waste military munitions exempted from
manifest requirements under Sec. 266.203(a) of this chapter.
4. Part 265 is amended by adding new subpart EE, consisting of
Secs. 265.1200 through 265.1202, to read as follows:
Subpart EE--Hazardous Waste Munitions and Explosives Storage
Sec.
265.1200 Applicability.
265.1201 Design and operating standards.
265.1202 Closure and post-closure care.
Sec. 265.1200 Applicability.
The requirements of this subpart apply to owners or operators who
store munitions and explosive hazardous wastes, except as Sec. 265.1
provides otherwise. (NOTE: Depending on explosive hazards, hazardous
waste munitions and explosives may also be managed in other types of
storage units, including containment buildings (40 CFR part 265,
subpart DD), tanks (40 CFR part 265, subpart J), or containers (40 CFR
part 265, subpart I); See 40 CFR 266.205 for storage of waste military
munitions).
Sec. 265.1201 Design and operating standards.
(a) Hazardous waste munitions and explosives storage units must be
designed and operated with containment systems, controls, and
monitoring, that:
(1) Minimize the potential for detonation or other means of release
of hazardous waste, hazardous constituents, hazardous decomposition
products, or contaminated run-off, to the soil, ground water, surface
water, and atmosphere;
(2) Provide a primary barrier, which may be a container (including
a shell) or tank, designed to contain the hazardous waste;
(3) For wastes stored outdoors, provide that the waste and
containers will not be in standing precipitation;
(4) For liquid wastes, provide a secondary containment system that
assures that any released liquids are contained and promptly detected
and removed from the waste area, or vapor detection system that assures
that any released liquids or vapors are promptly detected and an
appropriate response taken (e.g., additional containment, such as
overpacking, or removal from the waste area); and
(5) Provide monitoring and inspection procedures that assure the
controls and containment systems are working as designed and that
releases that may adversely impact human health or the environment are
not escaping from the unit.
(b) Hazardous waste munitions and explosives stored under this
subpart may be stored in one of the following:
(1) Earth-covered magazines. Earth-covered magazines must be:
(i) Constructed of waterproofed, reinforced concrete or structural
steel arches, with steel doors that are kept closed when not being
accessed;
(ii) Designed and constructed:
(A) To be of sufficient strength and thickness to support the
weight of any explosives or munitions stored and any equipment used in
the unit;
(B) To provide working space for personnel and equipment in the
unit; and
(C) To withstand movement activities that occur in the unit; and
(iii) Located and designed, with walls and earthen covers that
direct an explosion in the unit in a safe direction, so as to minimize
the propagation of an explosion to adjacent units and to minimize other
effects of any explosion.
(2) Above-ground magazines. Above-ground magazines must be located
and designed so as to minimize the propagation of an explosion to
adjacent units and to minimize other effects of any explosion.
(3) Outdoor or open storage areas. Outdoor or open storage areas
must be located and designed so as to minimize the propagation of an
explosion to adjacent units and to minimize other effects of any
explosion.
(c) Hazardous waste munitions and explosives must be stored in
accordance with a Standard Operating Procedure specifying procedures to
ensure safety, security, and environmental protection. If these
procedures serve the same purpose as the security and inspection
requirements of 40 CFR 265.14, the preparedness and prevention
procedures of 40 CFR part 265, subpart C, and the contingency plan and
emergency procedures requirements of 40 CFR part 265, subpart D, then
these procedures will be used to fulfill those requirements.
(d) Hazardous waste munitions and explosives must be packaged to
ensure safety in handling and storage.
[[Page 6654]]
(e) Hazardous waste munitions and explosives must be inventoried at
least annually.
(f) Hazardous waste munitions and explosives and their storage
units must be inspected and monitored as necessary to ensure explosives
safety and to ensure that there is no migration of contaminants out of
the unit.
Sec. 265.1202 Closure and post-closure care.
(a) At closure of a magazine or unit which stored hazardous waste
under this subpart, the owner or operator must remove or decontaminate
all waste residues, contaminated containment system components,
contaminated subsoils, and structures and equipment contaminated with
waste, and manage them as hazardous waste unless Sec. 261.3(d) of this
chapter applies. The closure plan, closure activities, cost estimates
for closure, and financial responsibility for magazines or units must
meet all of the requirements specified in subparts G and H of this
part, except that the owner or operator may defer closure of the unit
as long as it remains in service as a munitions or explosives magazine
or storage unit.
(b) If, after removing or decontaminating all residues and making
all reasonable efforts to effect removal or decontamination of
contaminated components, subsoils, structures, and equipment as
required in paragraph (a) of this section, the owner or operator finds
that not all contaminated subsoils can be practicably removed or
decontaminated, he or she must close the facility and perform post-
closure care in accordance with the closure and post-closure
requirements that apply to landfills (40 CFR 264.310).
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
1. The authority citation for Part 266 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6934.
2. Part 266 is amended by reserving subparts I through L and adding
new subpart M to read as follows:
Subparts I-L (Reserved)
Subpart M--Military Munitions
Sec.
266.200 Applicability.
266.201 Definitions.
266.202 Definition of solid waste.
266.203 Standards applicable to the transportation of solid waste
military munitions.
266.204 Standards applicable to emergency responses.
266.205 Standards applicable to the storage of solid waste military
munitions.
266.206 Standards applicable to the treatment and disposal of waste
military munitions.
Subpart M--Military Munitions
Sec. 266.200 Applicability.
(a) The regulations in this subpart identify when military
munitions become a solid waste, and, if these wastes are also hazardous
under this subpart or 40 CFR part 261, the management standards that
apply to these wastes.
(b) Unless otherwise specified in this subpart, all applicable
requirements in 40 CFR parts 260 through 270 apply to waste military
munitions.
Sec. 266.201 Definitions.
In addition to the definitions in 40 CFR 260.10, the following
definitions apply to this subpart:
Active range means a military range that is currently in service
and is being regularly used for range activities.
Chemical agents and munitions are defined as in 50 U.S.C. section
1521(j)(1).
Director is as defined in 40 CFR 270.2.
Explosives or munitions emergency response specialist is as defined
in 40 CFR 260.10.
Explosives or munitions emergency is as defined in 40 CFR 260.10.
Explosives or munitions emergency response is as defined in 40 CFR
260.10.
Inactive range means a military range that is not currently being
used, but that is still under military control and considered by the
military to be a potential range area, and that has not been put to a
new use that is incompatible with range activities.
Military means the Department of Defense (DOD), the Armed Services,
Coast Guard, National Guard, Department of Energy (DOE), or other
parties under contract or acting as an agent for the foregoing, who
handle military munitions.
Military munitions is as defined in 40 CFR 260.10.
Military range means designated land and water areas set aside,
managed, and used to conduct research on, develop, test, and evaluate
military munitions and explosives, other ordnance, or weapon systems,
or to train military personnel in their use and handling. Ranges
include firing lines and positions, maneuver areas, firing lanes, test
pads, detonation pads, impact areas, and buffer zones with restricted
access and exclusionary areas.
Unexploded ordnance (UXO) means military munitions that have been
primed, fused, armed, or otherwise prepared for action, and have been
fired, dropped, launched, projected, or placed in such a manner as to
constitute a hazard to operations, installation, personnel, or material
and remain unexploded either by malfunction, design, or any other
cause.
Sec. 266.202 Definition of solid waste.
(a) A military munition is not a solid waste when:
(1) Used for its intended purpose, including:
(i) Use in training military personnel or explosives and munitions
emergency response specialists (including training in proper
destruction of unused propellant or other munitions); or
(ii) Use in research, development, testing, and evaluation of
military munitions, weapons, or weapon systems; or
(iii) Recovery, collection, and on-range destruction of unexploded
ordnance and munitions fragments during range clearance activities at
active or inactive ranges. However, ``use for intended purpose'' does
not include the on-range disposal or burial of unexploded ordnance and
contaminants when the burial is not a result of product use.
(2) An unused munition, or component thereof, is being repaired,
reused, recycled, reclaimed, disassembled, reconfigured, or otherwise
subjected to materials recovery activities, unless such activities
involve use constituting disposal as defined in 40 CFR 261.2(c)(1), or
burning for energy recovery as defined in 40 CFR 261.2(c)(2).
(b) An unused military munition is a solid waste when any of the
following occurs:
(1) The munition is abandoned by being disposed of, burned,
detonated (except during intended use as specified in paragraph (a) of
this section), incinerated, or treated prior to disposal; or
(2) The munition is removed from storage in a military magazine or
other storage area for the purpose of being disposed of, burned, or
incinerated, or treated prior to disposal, or
(3) The munition is deteriorated or damaged (e.g., the integrity of
the munition is compromised by cracks, leaks, or other damage) to the
point that it cannot be put into serviceable condition, and cannot
reasonably be recycled or used for other purposes; or
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(4) The munition has been declared a solid waste by an authorized
military official.
(c) A used or fired military munition is a solid waste:
(1) When transported off range or from the site of use, where the
site of use is not a range, for the purposes of storage, reclamation,
treatment, disposal, or treatment prior to disposal; or
(2) If recovered, collected, and then disposed of by burial, or
landfilling either on or off a range.
(d) For purposes of RCRA section 1004(27), a used or fired military
munition is a solid waste, and, therefore, is potentially subject to
RCRA corrective action authorities under sections 3004(u) and (v), and
3008(h), or imminent and substantial endangerment authorities under
section 7003, if the munition lands off-range and is not promptly
rendered safe and/or retrieved. Any imminent and substantial threats
associated with any remaining material must be addressed. If remedial
action is infeasible, the operator of the range must maintain a record
of the event for as long as any threat remains. The record must include
the type of munition and its location (to the extent the location is
known).
Sec. 266.203 Standards applicable to the transportation of solid waste
military munitions.
(a) Criteria for hazardous waste regulation of waste non-chemical
military munitions in transportation. (1) Waste military munitions that
are being transported and that exhibit a hazardous waste characteristic
or are listed as hazardous waste under 40 CFR part 261, are listed or
identified as a hazardous waste (and thus are subject to regulation
under 40 CFR parts 260 through 270), unless all the following
conditions are met:
(i) The waste military munitions are not chemical agents or
chemical munitions;
(ii) The waste military munitions must be transported in accordance
with the Department of Defense shipping controls applicable to the
transport of military munitions;
(iii) The waste military munitions must be transported from a
military owned or operated installation to a military owned or operated
treatment, storage, or disposal facility; and
(iv) The transporter of the waste must provide oral notice to the
Director within 24 hours from the time the transporter becomes aware of
any loss or theft of the waste military munitions, or any failure to
meet a condition of paragraph (a)(1) of this section that may endanger
health or the environment. In addition, a written submission describing
the circumstances shall be provided within 5 days from the time the
transporter becomes aware of any loss or theft of the waste military
munitions or any failure to meet a condition of paragraph (a)(1) of
this section.
(2) If any waste military munitions shipped under paragraph (a)(1)
of this section are not received by the receiving facility within 45
days of the day the waste was shipped, the owner or operator of the
receiving facility must report this non-receipt to the Director within
5 days.
(3) The exemption in paragraph (a)(1) of this section from
regulation as hazardous waste shall apply only to the transportation of
non-chemical waste military munitions. It does not affect the
regulatory status of waste military munitions as hazardous wastes with
regard to storage, treatment or disposal.
(4) The conditional exemption in paragraph (a)(1) of this section
applies only so long as all of the conditions in paragraph (a)(1) of
this section are met.
(b) Reinstatement of exemption. If any waste military munition
loses its exemption under paragraph (a)(1) of this section, an
application may be filed with the Director for reinstatement of the
exemption from hazardous waste transportation regulation with respect
to such munition as soon as the munition is returned to compliance with
the conditions of paragraph (a)(1) of this section. If the Director
finds that reinstatement of the exemption is appropriate based on
factors such as the transporter's provision of a satisfactory
explanation of the circumstances of the violation, or a demonstration
that the violations are not likely to recur, the Director may reinstate
the exemption under paragraph (a)(1) of this section. If the Director
does not take action on the reinstatement application within 60 days
after receipt of the application, then reinstatement shall be deemed
granted, retroactive to the date of the application. However, the
Director may terminate a conditional exemption reinstated by default in
the preceding sentence if the Director finds that reinstatement is
inappropriate based on factors such as the transporter's failure to
provide a satisfactory explanation of the circumstances of the
violation, or failure to demonstrate that the violations are not likely
to recur. In reinstating the exemption under paragraph (a)(1) of this
section, the Director may specify additional conditions as are
necessary to ensure and document proper transportation to protect human
health and the environment.
(c) Amendments to DOD shipping controls. The Department of Defense
shipping controls applicable to the transport of military munitions
referenced in paragraph (a)(1)(ii) of this section are Government Bill
of Lading (GBL) (GSA Standard Form 1109), requisition tracking form DD
Form 1348, the Signature and Talley Record (DD Form 1907), Special
Instructions for Motor Vehicle Drivers (DD Form 836), and the Motor
Vehicle Inspection Report (DD Form 626) in effect on November 8, 1995,
except as provided in the following sentence. Any amendments to the
Department of Defense shipping controls shall become effective for
purposes of paragraph (a)(1) of this section on the date the Department
of Defense publishes notice in the Federal Register that the shipping
controls referenced in paragraph (a)(1)(ii) of this section have been
amended.
Sec. 266.204 Standards applicable to emergency responses.
Explosives and munitions emergencies involving military munitions
or explosives are subject to 40 CFR 262.10(i), 263.10(e), 264.1(g)(8),
265.1(c)(11), and 270.1(c)(3), or alternatively to 40 CFR 270.61.
Sec. 266.205 Standards applicable to the storage of solid waste
military munitions.
(a) Criteria for hazardous waste regulation of waste non-chemical
military munitions in storage. (1) Waste military munitions in storage
that exhibit a hazardous waste characteristic or are listed as
hazardous waste under 40 CFR Part 261, are listed or identified as a
hazardous waste (and thus are subject to regulation under 40 CFR Parts
260 through 279), unless all the following conditions are met:
(i) The waste military munitions are not chemical agents or
chemical munitions.
(ii) The waste military munitions must be subject to the
jurisdiction of the Department of Defense Explosives Safety Board
(DDESB).
(iii) The waste military munitions must be stored in accordance
with the DDESB storage standards applicable to waste military
munitions.
(iv) Within 90 days of August 12, 1997 or within 90 days of when a
storage unit is first used to store waste military munitions, whichever
is later, the owner or operator must notify the Director of the
location of any waste storage unit used to store waste military
munitions for which the conditional
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exemption in paragraph (a)(1) is claimed.
(v) The owner or operator must provide oral notice to the Director
within 24 hours from the time the owner or operator becomes aware of
any loss or theft of the waste military munitions, or any failure to
meet a condition of paragraph (a)(1) that may endanger health or the
environment. In addition, a written submission describing the
circumstances shall be provided within 5 days from the time the owner
or operator becomes aware of any loss or theft of the waste military
munitions or any failure to meet a condition of paragraph (a)(1) of
this section.
(vi) The owner or operator must inventory the waste military
munitions at least annually, must inspect the waste military munitions
at least quarterly for compliance with the conditions of paragraph
(a)(1) of this section, and must maintain records of the findings of
these inventories and inspections for at least three years.
(vii) Access to the stored waste military munitions must be limited
to appropriately trained and authorized personnel.
(2) The conditional exemption in paragraph (a)(1) of this section
from regulation as hazardous waste shall apply only to the storage of
non-chemical waste military munitions. It does not affect the
regulatory status of waste military munitions as hazardous wastes with
regard to transportation, treatment or disposal.
(3) The conditional exemption in paragraph (a)(1) of this section
applies only so long as all of the conditions in paragraph (a)(1) of
this section are met.
(b) Notice of termination of waste storage. The owner or operator
must notify the Director when a storage unit identified in paragraph
(a)(1)(iv) of this section will no longer be used to store waste
military munitions.
(c) Reinstatement of conditional exemption. If any waste military
munition loses its conditional exemption under paragraph (a)(1) of this
section, an application may be filed with the Director for
reinstatement of the conditional exemption from hazardous waste storage
regulation with respect to such munition as soon as the munition is
returned to compliance with the conditions of paragraph (a)(1) of this
section. If the Director finds that reinstatement of the conditional
exemption is appropriate based on factors such as the owner's or
operator's provision of a satisfactory explanation of the circumstances
of the violation, or a demonstration that the violations are not likely
to recur, the Director may reinstate the conditional exemption under
paragraph (a)(1) of this section. If the Director does not take action
on the reinstatement application within 60 days after receipt of the
application, then reinstatement shall be deemed granted, retroactive to
the date of the application. However, the Director may terminate a
conditional exemption reinstated by default in the preceding sentence
if he/she finds that reinstatement is inappropriate based on factors
such as the owner's or operator's failure to provide a satisfactory
explanation of the circumstances of the violation, or failure to
demonstrate that the violations are not likely to recur. In reinstating
the conditional exemption under paragraph (a)(1) of this section, the
Director may specify additional conditions as are necessary to ensure
and document proper storage to protect human health and the
environment.
(d) Waste chemical munitions. (1) Waste military munitions that are
chemical agents or chemical munitions and that exhibit a hazardous
waste characteristic or are listed as hazardous waste under 40 CFR Part
261, are listed or identified as a hazardous waste and shall be subject
to the applicable regulatory requirements of RCRA subtitle C.
(2) Waste military munitions that are chemical agents or chemical
munitions and that exhibit a hazardous waste characteristic or are
listed as hazardous waste under 40 CFR Part 261, are not subject to the
storage prohibition in RCRA section 3004(j), codified at 40 CFR 268.50.
(e) Amendments to DDESB storage standards. The DDESB storage
standards applicable to waste military munitions, referenced in
paragraph (a)(1)(iii) of this section, are DOD 6055.9-STD (``DOD
Ammunition and Explosive Safety Standards''), in effect on November 8,
1995, except as provided in the following sentence. Any amendments to
the DDESB storage standards shall become effective for purposes of
paragraph (a)(1) of this section on the date the Department of Defense
publishes notice in the Federal Register that the DDESB standards
referenced in paragraph (a)(1) of this section have been amended.
Sec. 266.206 Standards applicable to the treatment and disposal of
waste military munitions.
The treatment and disposal of hazardous waste military munitions
are subject to the applicable permitting, procedural, and technical
standards in 40 CFR Parts 260 through 270.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
1. The authority citation for Part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
2. Section 270.1 is amended by adding new paragraphs (c)(3)(i)(D)
and (c)(3)(iii) to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) * * *
(3) * * *
(i) * * *
(D) An immediate threat to human health, public safety, property,
or the environment from the known or suspected presence of military
munitions, other explosive material, or an explosive device, as
determined by an explosive or munitions emergency response specialist
as defined in 40 CFR 260.10.
* * * * *
(iii) In the case of emergency responses involving military
munitions, the responding military emergency response specialist's
organizational unit must retain records for three years identifying the
dates of the response, the responsible persons responding, the type and
description of material addressed, and its disposition.
* * * * *
3. Section 270.42 is amended by redesignating paragraph (h) as (i)
and adding a new paragraph (h) to read as follows:
Sec. 270.42 Permit modification at the request of the permittee.
* * * * *
(h) Military hazardous waste munitions treatment and disposal. The
permittee is authorized to continue to accept waste military munitions
notwithstanding any permit conditions barring the permittee from
accepting off-site wastes, if:
(1) The facility was in existence as a hazardous waste facility,
and the facility was already permitted to handle the waste military
munitions, on the date when the waste military munitions became subject
to hazardous waste regulatory requirements;
(2) On or before the date when the waste military munitions become
subject to hazardous waste regulatory requirements, the permittee
submits a Class 1 modification request to remove or amend the permit
provision restricting the receipt of off-site waste munitions; and
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(3) The permittee submits a complete Class 2 modification request
within 180 days of the date when the waste military munitions became
subject to hazardous waste regulatory requirements.
* * * * *
[FR Doc. 97-3218 Filed 2-11-97; 8:45 am]
BILLING CODE 6560-50-P
