# Revisions to Standards for the Open Burning/Open Detonation of Waste Explosives > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-05088 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** March 20, 2024 - **Citation:** 89 FR 19952 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 124, 260, 264, 265, 270, and 271 [EPA-HQ-OLEM-2021-0397; FRL-8592-01-OLEM] RIN 2050-AH24 Revisions to Standards for the Open Burning/Open Detonation of Waste Explosives AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA or the Agency) proposes to revise regulations that allow for the open burning and detonation (OB/OD) of waste explosives. This allowance or “variance” to the prohibition on the open burning of hazardous waste was established at a time when there were no alternatives for the safe treatment of waste explosives. However, recent findings from the National Academy of Sciences, Engineering, and Medicine (NASEM) and the EPA have identified safe alternatives which are potentially applicable to treat some energetic/explosive waste streams. Because there may be safe alternatives available and in use today that capture and treat emissions prior to release, regulations would be revised to describe specified procedures for the existing requirements to evaluate and implement alternative treatment technologies. These proposed revisions would reduce OB/OD of waste explosives and increase control of air emissions through improved implementation of existing requirements that facilities must evaluate and use safe and available alternative technologies in lieu of OB/OD. DATES: Comments must be received on or before May 20, 2024. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before April 19, 2024. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2021-0397, by one of the following methods: • Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: U.S. Environmental Protection Agency, EPA Docket Center, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. • Hand Delivery or Courier: EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal Holidays). Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. FOR FURTHER INFORMATION CONTACT: For further information regarding specific aspects of this document, contact Sasha Lucas-Gerhard (email address: gerhard.sasha@epa.gov, phone number: (202) 566-0346) or Paul Diss (email address: diss.paul@epa.gov, phone number: (202) 566-0321), in the Program Implementation and Information Division, Office of Resource Conservation and Recovery. SUPPLEMENTARY INFORMATION: Table of Contents The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. What action is the Agency taking? C. What is the Agency's authority for taking this action? D. What are the overall economic impacts of this action? E. Summary of the Proposed Rule II. Detailed Discussion of the Proposed Rulemaking A. Background B. Scope of Applicability C. Waste Characterization D. Alternative Treatment Technology Evaluations E. Timing for Rule Compliance F. Permitting of Alternative Technologies G. Technical Standards for OB/OD Units H. Wastes Prohibited or Restricted From OB/OD I. Delay of Closure for OB/OD Units J. Minimum Safe Distances for Treatment of Waste Explosives K. Explosives or Munitions Emergency Provisions L. Mobile Treatment Units for Waste Explosives III. State Authorization IV. Statutory and Executive Order Reviews I. General Information A. Does this action apply to me? This proposed rule potentially affects owners and operators of facilities that use OB/OD to treat waste explosives. This includes facilities that currently treat waste explosives in a miscellaneous unit permitted under 40 CFR part 264, subpart X; facilities that treat waste explosives under 40 CFR 265.382 (interim status); and other entities that use or would use OB/OD to treat waste explosives, for example, as part of emergency responses conducted under an emergency permit, or as part of cleanup actions. To determine whether your entity is affected by this action, you should carefully examine the changes to the regulatory text. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What action is the Agency taking? EPA is proposing revisions to regulations under the Resource Conservation and Recovery Act (RCRA) related to use of OB/OD to treat waste explosives. This includes proposed changes to clarify how facilities would assess whether safe alternatives are available in lieu of OB/OD. In addition, for instances where OB/OD remains the only treatment method for waste explosives, the Agency is proposing minimum technical standards for OB/OD units. The Agency is also proposing a framework for permitting mobile treatment units (MTUs, proposed definition in § 264.10), which could be used as an alternative to OB/OD. EPA finds that these proposed changes would increase protection of human health and the environment by reducing the amount of waste explosives currently being open burned and open detonated and, where OB/OD remains the only available treatment method, by strengthening protections for OB/OD activities. C. What is the Agency's authority for taking this action? These regulations are proposed principally under the authority of section 3004(n), and supported by authorities under sections 2002, 3004 generally, 3005, and 3006 of the Solid Waste Disposal Act of 1965, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA). This statute is commonly referred to as “RCRA.” D. What are the overall economic impacts of this action? EPA estimated the costs and benefits of the proposed rule in a Regulatory Impact Analysis, which is available in the docket for this action. Overall, EPA estimates that the proposed rule would result in quantifiable annual costs of approximately $6.3 million to $28.0 million (annualized at a discount rate of seven percent). The proposed rulemaking's requirements and costs apply to all owners/operators conducting or seeking to conduct OB/OD of waste explosives under RCRA. EPA requests comment on the cost estimates and analysis of this proposed rulemaking. Details of this analysis and requests for comment are presented in the Regulatory Impact Analysis for the Revisions to Standards for the Open Burning/Open Detonation of Explosive Waste Materials Proposed Rule, available in the docket. E. Summary of the Proposed Rule EPA is proposing revisions to the RCRA regulations to clarify and add specificity to existing requirements for owners/operators of OB/OD units, including how and when to apply and implement the requirements in the permitting process. It also proposes new procedures for the permitting of mobile treatment units for waste explosives and new technical standards for OB/OD units. Specifically, EPA is proposing to create new Subparts for OB/OD units in Parts 264 (applicable to permitted facilities) and 265 (applicable to interim status facilities). The new Subparts would contain requirements that would apply to all owners/operators conducting or seeking to conduct OB/OD of waste explosives, including activities conducted as part of RCRA cleanup and closure. EPA is also proposing limited requirements for OB/OD emergency permits. EPA is also proposing an exemption from the alternative technology evaluation and implementation regulations for the de minimis treatment of waste explosives by OB/OD. This rulemaking proposes new provisions that would specify how and when owners/operators and permit authorities are to evaluate alternative treatment technologies for OB/OD, including specific information that would be required for facilities to demonstrate whether safe modes of treatment are available for specific waste streams. This rule also proposes new and revised regulatory provisions on timelines for implementing alternative technologies, permitting for alternative technologies, waste analysis/characterization, wastes prohibited/restricted from OB/OD, technical standards for OB/OD units, delay of closure applicability to OB/OD units, clarifications to emergency provisions, and procedures for permitting MTUs. The components of this proposal may be finalized, or not, independently of each other. In addition, EPA intends that the provisions of the rule be severable. In the event that any individual provision or part of the rule is invalidated, EPA intends that this would not render the entire rule invalid, and that any individual provisions that can continue to operate will be left in place. II. Detailed Discussion of the Proposed Rulemaking Background A. Introduction to Open Burning and Open Detonation of Waste Explosives and This Rulemaking What is open burning and open detonation? Open burning (OB), as currently defined in § 260.10, means the combustion of any material without the following characteristics: 1. Control of combustion air to maintain adequate temperature for efficient combustion, 2. Containment of the combustion-reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and 3. Control of emission of the gaseous combustion products. Detonation, as currently defined in § 265.382, is an “explosion in which chemical transformation passes through the material faster than the speed of sound.” Because the only term defined in part 260 is “open burning,” which is related to but different from “open detonation,” EPA is proposing to add the terms “detonation,” “open detonation,” and “open burning/open detonation unit” to the definitions in § 260.10. The proposed definition for “open detonation” is “the detonation of any material without: (1) Containment in an enclosed device and; (2) control of the emission products, causing any unreacted material to be dispersed into the environment. OD refers to both detonation that is not covered and detonation that is covered by soil (buried detonation)”; and the proposed definition for “open burning/open detonation unit” is “any unit used in the OB or OD treatment of waste explosives. These units include but are not limited to detonation pit, burn pile, burn cage, and burn pan units. The permitted unit boundary includes the associated kickout area within the facility, where dispersed metal fragments, unreacted explosives contaminants, and other waste items are deposited onto the land.” In addition, EPA proposes to revise the definition of “open burning” in § 260.10 to reference the proposed definition of detonation and to remove the word “gaseous” from “control of emission of the “gaseous combustion products.” This proposed change is because combustion byproducts may also be in the solid phase. What is an OB/OD unit? An OB/OD unit is a unit used for the treatment of waste explosives by OB/OD. These units are regulated under RCRA and can include, but are not limited to, detonation pits, burn pits, trenches, piles, burn pans, tubes, and cages. OB/OD units are not enclosed units but are open such that the treatment byproducts are released directly into the environment. 1 1 For the purpose of compliance with the Land Disposal Restriction (LDR) treatment standards, EPA determined that OB/OD was treatment, not disposal. Land disposal means placement into or on the land. However, EPA clarified that OB/OD constitutes land disposal where residuals [on the land] from the OB/OD operation remain a hazardous waste. Memorandum from Sylvia Lowrance, Director of Office of Solid Waste to Robert Duprey, EPA Region 8, Director Hazardous Waste Management Division, May 18, 1988, RO 13184. [ Note: Please note that this memo pre-dates the “Third Third” (June 1, 1990) and Sept 1994 Final Rules, which established LDR requirements for the “explosives subcategory” and the requirement to treat D003 explosives prior to land disposal for “underlying hazardous constituents” as defined in § 268.2, respectively. What are waste explosives? Waste explosives are solid wastes that are hazardous and characteristic for reactivity (D003) as defined under § 261.23(a)(6) through (8): It is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement. It is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure. It is a forbidden explosive as defined in 49 CFR 173.54, or is a Division 1.1, 1.2, or 1.3 explosive as defined in 49 CFR 173.50 and 173.53. Example explosives include but are not limited to propellants from guns, airbag inflators, 2 and rockets (“propellants”), fireworks and flares (“pyrotechnics”), and military and non-military munitions (“munitions”) and become wastes when discarded as defined in §§ 261.2 and 266.202. Military munitions include bombs, warheads, grenades, mines, missiles, and ammunition (see § 260.10 for additional types of explosives defined as military munitions). Waste explosives also include explosives-contaminated debris such as towels, liners, containers, gloves, socks, personal protective clothing, pipes, and soils that meet the § 261.23(a)(6) through (8) explosives definitions quoted above. 2 While fully-assembled airbag modules contain ignitable propellant, EPA has said that used airbag modules that can safely undergo electronic deployment prior to recovery of metal are considered scrap metal and such deployment does not require a RCRA treatment permit ( Regulatory Status of Automotive Airbag Inflators and Fully Assembled Airbag Modules, Barnes Johnson, Director, Office of Resource Conservation and Recovery, July 19, 2018, https://www.epa.gov/hw/regulatory-status-automotive-airbag-inflators-and-fully-assembled-airbag-modules ). Therefore, electronic deployment of these airbag modules for metal recovery would not be subject to the requirements of this rulemaking. However, airbag propellent itself ( e.g., off-spec or excess propellant), used airbag inflators, and used airbag modules that cannot safely undergo electronic deployment (such as recalled Takata airbags) are not eligible for the scrap metal exemption and are regulated as hazardous waste. Treatment of these wastes is subject to the requirements of the rule (as would treatment of any airbag modules that are not electronically deployed) if such treatment involves OB/OD. Contaminants That May Be Released During OB/OD Waste explosives, when open burned or open detonated, have the potential to release to the environment heavy metals, perchlorate, particulate matter, per- and polyfluoroalkyl substances (PFAS), polychlorinated biphenyls (PCBs), dioxins/furans, explosive compounds, and other toxic contaminants. 3 EPA has documented specific contaminants that exceed action levels in environmental media at OB/OD units that have undergone RCRA closure. These contaminants include explosives (RDX, HMX, TNT, DNT, perchlorate, nitroglycerine), heavy metals (aluminum, arsenic, barium, cadmium, chromium, cobalt, copper, lead, manganese, mercury, selenium, silver, thallium, zinc), and other contaminants (PCBs, benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, bis(2-ethylhexyl)phthalate, chrysene, dioxins/furans, dinitrobenzene (DNB), dibromoethane (EDB), endosulfan, ethylbenzene, fluoranthene, indeno(1,2,3-cd)pyrene, naphthalene, nitrates, nitrobenzene, 1,3,5-trinitrobenzene (TNB), xylenes). 4 5 Additionally, many of these hazardous chemicals may exist as mixtures, and have the potential to be released concurrently. 3 https://www.epa.gov/fedfac/emerging-contaminants-and-federal-facility-contaminants-concern. 4 Alternatives for the Demilitarization of Conventional Munitions, NASEM, January 2019. https://www.nap.edu/catalog/25140/alternatives-for-the-demilitarization-of-conventional-munitions. 5 OB/OD Closure Case Studies, EPA, 2023, available in the docket for this rulemaking. Information about specific chemicals, including information on health and environmental impacts, can be found on EPA's CompTox Chemicals Dashboard https://comptox.epa.gov/dashboard/. Potential Environmental Impacts and Health Effects of Contaminants Released During OB/OD Incomplete treatment of waste explosives during OB/OD operations can result in the release of waste residuals including explosive kickout ( i.e., the dispersal of metal fragments, unreacted explosive contaminants, and other waste items, onto the land) that are hazardous waste and/or explosive waste or contain hazardous constituents and contaminants which may pose a threat to human health and the environment, especially if not removed in a timely manner. As an example, OB/OD of energetic compounds, including obsolete munitions, pieces of ordnance and propellants, in military ranges in China resulted in soil deposition of various energetic compounds. 6 Although OB/OD processes may vary in other countries, as well as by facilities within the United States, the types of environmental damages from OB/OD operations in other countries are illustrative of the types of environmental damages from OB/OD operations in the United States. Therefore, EPA believes this is relevant to this discussion. Substances released during OB/OD also have the potential to migrate into and contaminate the air and deposit onto soil, surface water, groundwater, and subsurface physical structures. 7 Human exposure to contaminants of potential concern released during OB/OD may include but is not limited to inhalation of contaminated air, ingestion of contaminated food and water, and dermal absorption of contaminants. Exposure to these contaminants can cause adverse health effects in humans and animals. 8 6 Zhang, Huijun, et al. Contamination characteristics of energetic compounds in soils of two different types of military demolition range in China, Environmental Pollution, Volume 295, 2022, https://www.sciencedirect.com/science/article/pii/S0269749121022363. 7 Information about specific chemicals, including information on health and environmental impacts, can be found on EPA's CompTox Chemicals Dashboard https://comptox.epa.gov/dashboard/. 8 A description of potential environmental impacts and health effects from the contaminants that are released during OB/OD is included in the background document “Background on Potential Environmental Impacts and Health Effects of Contaminants released during OB/OD.” Background of Regulatory Requirements Due to the potential hazards to human health and the environment EPA prohibited the OB, including OD, of hazardous waste in 1980 at interim status facilities with one exception—EPA allowed OB/OD for waste explosives “which cannot safely be disposed of through other modes of treatment” (45 FR 33217, May 19, 1980; § 265.382). 9 During that time open burning and open detonation were the only technologies available to treat munitions, waste explosives and bulk propellants; therefore, EPA acknowledged the need for the variance to allow open burning and open detonation of those wastes. This exception, or variance, from the prohibition on OB/OD was not intended to be indefinite. At the time, EPA also committed to monitoring development of new technologies. 10 Interim status facilities refers to facilities that have not yet received a permit to operate but are allowed to continue operations by implementing the standards of part 265. 9 As finalized in 1980, § 265.382 reads “[o]pen burning of hazardous waste is prohibited except for the open burning and detonation of waste explosives. Waste explosives include waste which has the potential to detonate and bulk military propellants which cannot safely be disposed of through other modes of treatment. Detonation is an explosion in which chemical transformation passes through the material faster than the speed of sound (0.33 kilometers/second at sea level). Owners or operators choosing to open burn or detonate waste explosives must do so in accordance with the following table and in a manner that does not threaten human health and the environment.” 10 Final Background Document, 40 CFR part 265, subpart P Interim Status Standards for Hazardous Waste Facilities for Thermal Treatment Processes Other Than Incineration and for Open Burning. U.S. EPA, Office of Solid Waste, April 1980; p. 52. “The Agency will be monitoring the progress of the on-going development of safe alternatives and may propose additional regulations at a later time.” After establishing interim status standards for thermal treatment in part 265, subpart P, EPA finalized permitting standards in 1987 for hazardous waste management units that were not already covered in the regulations, including OB/OD (part 264, subpart X). 11 In the subpart X rule, EPA listed OB/OD of explosive waste as an example unit covered under subpart X, referring to units “as defined in § 265.382” and used the § 265.382 definition of waste explosives to describe what OB/OD operations could and could not be permitted under subpart X. 12 11 52 FR 46964, December 10, 1987. 12 52 FR 46952, December 10, 1987. The subpart X regulations further direct that permits for such “miscellaneous units” must “contain such terms and provisions as are necessary to protect human health and the environment” (§ 264.601), and permitting authorities generally incorporate applicable provisions from the existing EPA regulations. EPA stated in the preamble to the 1987 rule that “[w]hen upgrading existing units or permitting new units, the applicable portions of part 265, subpart P standards ( e.g., minimum safe distances) will be incorporated during issuance of subpart X permits” (emphasis added). 13 Thus, EPA has long interpreted subpart X to require incorporating the provisions of § 265.382 when permitting OB/OD activities. 13 In addition, shortly after publication of the subpart X final permitting standards, EPA confirmed that “[a]ll thermal treatment is subject to part 265, subpart P; if this was not the case, the standards would not be the same. . . .” Memorandum from Marcia E. Williams, Director of Office of Solid Waste to Robert F. Greaves, EPA Region 3 Acting Chief Waste Management Branch, December 15, 1987, RO 11310. RCRA section 3005(c)(1) directs EPA to issue a permit “upon a determination by the Administrator (or a State, if applicable), of compliance by a facility” with the standards promulgated by EPA applicable to owners/operators of hazardous waste treatment, storage, and disposal facilities (TSDFs). This means that to obtain a permit, an interim status facility would need to demonstrate compliance with § 265.382 before issuance of the permit. The facility must demonstrate that the waste “cannot safely be disposed of through other modes of treatment,” and, if there is no safe mode of treatment other than OB/OD, the facility must conduct OB/OD “in a manner that does not threaten human health or the environment.” Moreover, given the record concerning the release of contaminants, byproducts, and wastes associated with OB/OD, EPA considers that the incorporation of the qualified prohibition in § 265.382 ( i.e., an assessment and implementation of alternatives) as a minimum requirement for permitting is necessary to ensure that permitted units are more protective and “operated . . . in a manner that will ensure protection of human health and the environment” (§ 264.601). RCRA section 3005(c) also directs the Administrator (or State), prior to issuing a permit, to “consider improvements in the state of control and measurement technology” in reviewing an application for a permit renewal. (42 U.S.C. 6925(c)(1), (3)). Accordingly, EPA expects that permits are and will be only issued for OB/OD units treating waste explosives as defined in § 261.23(a)(6) through (8) and § 265.382, and that such permits will incorporate the prohibition on OB/OD except for waste explosives “which cannot safely be disposed of through other modes of treatment,” considering the most recent information on available alternative technologies. EPA notes that, during the evaluation and implementation periods for an alternative technology, owners/operators may continue use of OB/OD to treat the subject wastes. Please also see section “Alternative Technology and Continuity of Operations” for use of OB/OD when an implemented alternative technology is not available. Also relevant are the provisions in the statute and regulations which provide authority for agency-initiated permit modifications. Under these provisions, Regional, State, and territorial RCRA programs may consider whether cause exists to initiate a modification of existing permits not currently up for renewal. RCRA section 3005(c)(3) stipulates the Administrator (or authorized State) can review and modify a permit at any time during its term. In accordance with this direction, § 270.41(a)(2) authorizes Regional, State, and territorial permitting authorities to modify or revoke and reissue a permit based on “information [that] was not available at the time of permit issuance . . . and would have justified the application of different permit conditions at the time of issuance.” The two 2019 reports (discussed in this preamble) can be considered as this type of information. Overview of OB/OD and Development of Alternative Technologies Since 1980, approximately two thirds of all RCRA interim status/permitted OB/OD units have ceased operating. 14 However, as of April 2023, there are 67 operating RCRA OB/OD facilities. Permit agencies have issued permits to 63 of these facilities as RCRA hazardous waste treatment units under part 264, subpart X. Four facilities are still awaiting initial permit decisions and continue to operate under interim status. 15 The list of operating RCRA OB/OD facilities is included in the RIA of the proposed rule. This list also adds 2 corrective action facilities currently using OB/OD or that have plans to use OB/OD for treatment of recovered explosives and munitions items. 14 Munitions Demilitarization/Disposal and Environmental Subgroups of the Joint Ordnance Commanders Group (JOCG) report on the Optimization of Department of Defense Open Burning/Open Detonation Units. The report includes determinations of the criticality of each OB/OD unit, a comparative benefit analysis on the OB/OD units with an intent to remain open, and factors for their considerations to determine whether their maintained OB/OD units are required. This document is available in the docket for the proposed rule. 15 The four OB/OD facilities operating under interim status are: (1) U.S. Army Picatinny Arsenal (New Jersey), (2) Naval Support Facility Indian Head Strauss Avenue (Maryland), (3) Naval Support Facility Indian Head Stump Neck Annex (Maryland), and (4) Los Alamos National Laboratory (New Mexico). Given the open design of OB/OD units and their potential to release treatment byproducts directly into the environment, and associated documented contamination discussed above, OB/OD, consistent with existing regulatory requirements as further communicated in guidance issued by EPA in June 2022, 16 can only be used where there are no other safe modes of treatment available. 17 OB/OD units treating waste explosives are currently permitted under part 264, subpart X. Under the subpart X environmental performance standards, “permits for miscellaneous units are to contain such terms and provisions as necessary to protect human health and the environment, including, but not limited to, as appropriate, design and operating requirements, detection and monitoring requirements, and requirements for responses to releases of hazardous waste or hazardous constituents from the unit” (§ 264.601). 16 EPA memorandum from the Director of ORCR to the Regional LCRD Division Directors on “Open Burning and Open Detonation (OB/OD) of Waste Explosives Under the Resource Conservation and Recovery Act (RCRA)” https://rcrapublic.epa.gov/files/14946.pdf. 17 For more discussion on safe modes of treatment see Section II. D. Alternative Technology Evaluation and Implementation. When EPA promulgated the 1980 exception to the prohibition to OB/OD for waste explosives, EPA did so because there were no alternative treatment technologies that could safely treat most waste explosives at the time. In the subsequent decades, the Department of Defense (DoD) has researched, developed, tested, and evaluated (RDT&E) alternative technologies, leading to successful implementation of several different alternative technologies. 18 RDT&E efforts, in addition to continuous improvements in alternative technologies, have made such technologies increasingly available. As technology has advanced over time, expectations for demonstrating whether there are no safe and available alternatives have commensurately grown over time. 18 As described in EPA's 2019 report, many alternative technologies were first conceptualized, demonstrated, tested, and implemented by DoD (Alternative Treatment Technologies to Open Burning and Open Detonation of Energetic Hazardous Wastes, US EPA, December 2019 https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf. ) EPA also recognizes that private companies have also researched, demonstrated, and tested, and either implemented their alternatives at their facilities or made their alternatives available for purchase. For facilities, including both Federal and private, that have implemented alternative technologies, a key step in the process is determining which of their explosive waste streams can be treated safely by an available alternative technology. This step entails, among other considerations, an in-depth evaluation of the waste explosives compared to the capabilities of the available alternative technologies. EPA recognizes that the practice of evaluating and implementing alternative technologies has been taking place over many years despite a lack of specific details in the regulations for how to implement these requirements. The process of evaluating and implementing alternative technologies may require significant investment in resources and time, depending on the site-specific requirements. An alternative technology evaluation can vary widely in terms of costs based on the number of explosive waste streams that a facility must evaluate, as each must be evaluated against a range of available technologies. Similarly, alternative technology costs, including design, construction, operation, and maintenance, can be significant, and can vary widely depending upon the treatment needs and would be influenced by the complexity of the required technology and whether a combination of technologies is needed to treat a particular waste stream or waste streams. Costs also vary depending on whether a facility needs to design, construct, operate, and maintain its own alternative technology on-site or whether it can transport waste explosives off-site for treatment operated either commercially or by the facility's own enterprise. The use of mobile treatment units presents, for some waste streams, an opportunity for facilities to manage costs in choosing among safe alternative technologies. EPA notes that this proposed rule would establish new requirements to improve implementation of existing requirements established in 1980. Thus, the estimated costs of this proposal include the costs of the new requirements but do not include costs for the existing requirements to evaluate and implement safe alternative technologies, since they were already part of the regulatory framework. Timing of the process beginning with technology evaluation through technology implementation can also vary considerably. Timing considerations include requesting and securing funding, solicitation of vendors and award of contracts, permitting, construction, and start-up and testing. Federal facilities' funding requests must align with the three-to-five-year budgetary cycle, which means funds may not be available immediately. Additionally, more complex alternative technologies involving high-cost infrastructure may involve longer Congressional budgeting and appropriations processes. Conversely, EPA is aware of alternative technologies that have been implemented in relatively short timeframes of one to three years, for example in response actions addressed under CERCLA, and at private facilities. As noted, alternative treatment technologies have been developed and implemented over the past several decades. In 2019, EPA 19 and the NASEM (see footnote 4) published separate reports describing many alternative technologies now available to safely treat explosive waste instead of using OB/OD. Both reports indicated that there appear to be safe available alternative technologies for many waste streams that are currently being open burned. With regard to waste streams that are currently open detonated, there are considerably fewer waste streams that can be treated by alternative technologies due to limited explosion containment capabilities ( e.g., some munitions are too large, either in size or net explosive weight (NEW) and cannot be sized-reduced to be safely treated in a chamber or reinforced rotary kiln). Use of safe alternative technologies in general represents a greater level of control and more complete treatment, and therefore better protection of human health and the environment; in addition, capturing and controlling emissions and releases to the environment is more protective compared to treatment open to the environment. Further, since these technologies prevent or greatly reduce the release of hazardous contaminants to the environment, they reduce the chances of exposures, improve the ability to clean close, and avoid the need for post-closure care. More information about closure of OB/OD facilities is available in EPA's OB/OD Closure Case Studies (see footnote 5). 19 Alternative Treatment Technologies to Open Burning and Open Detonation of Energetic Hazardous Wastes, US EPA, December 2019 https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf. “There is a wide range of available alternative treatment technologies that can be, and have been used successfully, in place of OB/OD.” Some energetic and munitions treatment with alternative technologies may be a multi-step process, depending on the starting material and its configuration. Munitions and energetics can be divided into four general categories: thick-case munitions, thin-case munitions, bulk explosives or propellants, and explosive-contaminated materials. The multi-step process may include case opening, energetic material removal, energetic material destruction, and decontamination. Technologies developed for the case-opening step include reverse assembly, fluid jet cutting, cryofracturing, femtosecond laser cutting or laser machining, and band sawing. For the energetic material removal step, some technologies that have been developed are autoclave meltout, induction heating meltout, washout, dry ice blasting, and ultrasonic separation or sonication. Technologies developed for the energetic material destruction step include closed detonation (controlled detonation chamber (CDC), static detonation chamber (SDC), detonation of ammunition in a vacuum integrated chamber (DAVINCH TM ), thermal destruction (contained burn, rotary kiln, Decineration TM , and rotary furnace), and chemical destruction (alkaline hydrolysis, general atomics neutralization/alkaline hydrolysis, industrial supercritical water oxidation, MuniRem®, Actodemil®). The decontamination step technologies include thermal decontamination (hot gas or steam decontamination, flashing furnace, Decineration TM , car bottom furnace) and chemical decontamination (MuniRem®, Actodemil®). 20 For Department of Defense (DoD) facilities, the DoD Explosives Safety Board (DDESB) approves, from an explosives safety standpoint, technologies applying for use within DoD. 21 Although these determinations are very site-specific, in identifying potential alternative technologies it may be helpful to review lists 22 of technologies approved from a safety standpoint by the DDESB (see footnote 20, pg. 11). 20 Referral to commercial products or services, and/or links to non-EPA sites does not imply official EPA endorsement of or responsibility for the opinions, ideas, data, or products presented at those locations, or guarantee the validity of the information provided. 21 DDESB is the DoD organization created in 1928 by Congress to develop, implement, and oversee explosives safety regulations through the DoD Explosives Safety Program for all DoD munitions and munitions-related operations. The DDESB's mission is to protect people, the environment, and infrastructure by preventing accidents involving DoD ammunition and explosives ( i.e., military munitions). 22 EPA, December 2019, p. 30. The 2015 list of eight DDESB-approved technologies was confirmed as current by Mr. M. Luke Robertson (DDESB) in an email to EMS dated July 26, 2017. Public Engagement on Development of the Proposed Rulemaking In developing this proposed rulemaking, EPA held two rounds of early engagement in March 2022 and December 2022 with States, territories, Tribes, environmental and community groups, and owners/operators of operating OB/OD units (including Federal agencies such as DoD, Department of Energy (DOE), and the National Aeronautics and Space Administration) as well as other members of the public to solicit input on how to amend the hazardous waste regulations with respect to OB/OD. In general, States and territories were very supportive of a proposed rulemaking but concerned about implementation challenges. Owners and operators of OB/OD facilities, including Federal agencies, stressed that safety is paramount when evaluating alternatives and emphasized the importance of retaining the ability to use OB/OD for waste explosives that have no safe alternative. Environmental and community groups want EPA to ban OB/OD completely with no exceptions such as for emergencies. These groups are concerned with exposure to contaminants from OB/OD through inhalation of plumes of smoke migrating into their communities and ingestion of contamination deposited onto soil and leached into groundwater used for irrigation and drinking water. Communities are also concerned with the noise and vibration from OB/OD events. Summaries of these meetings are available in the docket for this proposed rule. 23 23 Responses to the Environmental Protection Agency Revisions to the Standards for Open Burning/Open Detonation of Waste Explosives Discussion Topics for Virtual Meetings. Summaries from all engagement meetings are available in the docket for this rulemaking. B. Scope of Applicability EPA is proposing to create new subparts for OB/OD units in parts 264 (applicable to permitted facilities) and 265 (applicable to interim status facilities). The new subparts would contain requirements that would apply to all owners/operators conducting or seeking to conduct OB/OD of waste explosives, except for those conducting explosives or munitions emergency responses. Applicability would encompass owners/operators of OB/OD units used for RCRA cleanup, closure, post-closure, or corrective action and any persons or entities that conduct or seek to conduct OB/OD of waste explosives. EPA estimates that, as of April 2023, there are 67 TSDFs with operating OB/OD units including four operating under interim status, and 2 corrective action facilities 24 that would be subject to these proposed requirements. 24 The two corrective action facilities may or may not be subject to the final requirements depending upon when the activities are completed; they are included in the proposed rule because they currently use OB/OD only for corrective action. Emergency Provisions Additionally, EPA is proposing to include clarifying text and new regulatory reporting requirements in the subpart Y standards: Emergency Provisions at §§ 264.715 and 265.715 and to revise the existing emergency permit regulations at § 270.61. These clarifications and additions balance the need to ensure that explosives or munitions emergency responses continue to proceed as expeditiously as practicable by maintaining current exemptions while addressing the potential deleterious human health and/or environmental impacts of OB/OD conducted under temporary emergency permits by requiring that safe alternatives be evaluated and implemented, when practicable. In pre-proposal public engagement, some regulated entities raised concerns that the existing requirement to conduct alternative technology evaluations and implement alternatives when safe alternatives are identified, may result in delays to emergency responses. EPA believes this proposal will address that concern by utilizing the existing exemption from substantive RCRA requirements, including the need to obtain a permit, which by extension, exempts explosives or munitions emergency responses from the requirement to evaluate alternatives. At the same time, the proposal would require submission of specified information after the emergency response is complete. These proposed provisions and their rationale are discussed in more detail in Section II. K. Explosives or Munitions Emergency Provisions. Sanitization Under Atomic Energy Act (AEA) In the 1997 final Military Munitions Rule (MMR), EPA codified a definition for “military munitions” which excluded nuclear weapons, nuclear devices, and non-nuclear components that are managed under DOE's nuclear weapons program, that have not undergone sanitization. 25 Sanitization is an operation, required under the AEA, that irreversibly modifies or destroys a component or part of a component of a nuclear weapons system, device, trainer, or test assembly. It is EPA's understanding that DOE occasionally utilizes open burning to sanitize nuclear and non-nuclear components and parts that either contain explosive residues or are explosive materials themselves. Consistent with the MMR and the supporting legislative history discussed therein, EPA does not consider sanitization operations that utilize open burning to be within the scope of applicability for this proposed rule. However, EPA encourages DOE, when evaluating alternative technologies for its RCRA regulated explosive waste streams, to also consider if an alternative technology could be used for sanitization operations. 25 Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties. See 62 FR 6624-25, February 12, 1997. Relationship to CERCLA During pre-proposal public engagement, some participants also raised concerns that cleanups conducted under the CERCLA may be impeded by any applicable requirements to evaluate and implement alternatives to OB/OD. These participants sought an explicit exemption for CERCLA cleanups. These proposed regulations under RCRA do not grant such an exemption. CERCLA section 121(d) requires that on-site remedial actions attain or waive Federal environmental ARARs, or more stringent State environmental ARARs, upon completion of the remedial action. Substantive RCRA provisions pertaining to waste explosives have been evaluated as CERCLA ARARs on a site-specific basis since their promulgation in 1980. De Minimis Exemption From Alternative Technology Evaluation EPA is proposing an exemption for generators generating up to 15,000 lbs NEW or less of waste explosives from the requirement to conduct a comprehensive alternative technology evaluation provided they make a de minimis demonstration. The proposed de minimis exemption regulations would be located at § 264.704(e) for permitted facilities and § 265.704(e) for interim status facilities. The proposed de minimis exemption from the requirement to evaluate and implement alternative technologies would require the owner/operator to make three unique demonstrations to the satisfaction of the Director (discussed in this preamble). An owner/operator that satisfactorily made such demonstrations would be exempt from the requirement to conduct an evaluation of alternatives to OB/OD as would otherwise be required under the proposed § 264.707 or § 265.707 regulations. Accordingly, the owner/operator would be exempt from the requirement to implement an alternative technology with the exception of any safe available offsite alternative technology treatment options, safe treatment by an existing onsite alternative technology unit, or safe and available treatment by an MTU. The exemption would be limited to only waste explosives generated on site and as proposed to be defined in § 260.10. Thus, the exemption would not exempt additional waste streams from the long-standing prohibition of OB/OD of hazardous wastes that did not meet the definition of waste explosives. As a result of the exemption being limited to waste explosives generated on site, it would also not create an incentive to ship small quantities of waste explosives to different facilities in order to qualify for the exemption. EPA is proposing this de minimis exemption for quantities of OB/OD that contribute only trivial contamination or potential for exposure. Under the proposed terms of the de minimis exemption, the owners/operators would have to make three demonstrations, the first of which includes four components, to the satisfaction of the Director. The three demonstrations that would be required are: (1) A demonstration that the proposed de minimis treatment by OB/OD would contribute negligible contamination and potential for exposure; (2) a demonstration that treatment by an MTU, treatment off-site by an alternative technology, and treatment by an existing on-site alternative technology, if applicable, are not safe and available; and (3) a demonstration that the facility does not have any unresolved compliance or enforcement actions and does not have a history of significant noncompliance. This section first discusses the first demonstration and its related components being proposed for this exemption, before discussing the two remaining proposed demonstrations. The first demonstration that would be required, is a demonstration that the proposed de minimis treatment by OB/OD would contribute negligible environmental contamination and potential for exposure. This demonstration is essential because it is well established that a de minimis exemption is only appropriate in situations where the regulated activity represents only a “trivial” or de minimis deviation from the prescribed standard. See, e.g., Wisconsin Dept of Revenue v. William Wrigley Jr Co, 505 US 215, 231-232 (1992); Republic of Argentina v. Weltover, Inc., 504 US 607, 618 (1992); Hudson v. McMillian, 503 US 1, 8-9 (1992); Ingraham v. Wright, 430 US 651, 674 (1977); Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 US 1, 18 (1976); Industrial Assn. of San Francisco v. United States, 268 US 64, 84 (1925). Whether a particular activity is a de minimis deviation from a prescribed standard is determined with reference to the purpose of the standard. Wisconsin Dept. of Revenue, supra at 232. Under RCRA, where the relevant standard is the protection of human health and the environment, this means that the activity in question (here the limited continued OB/OD) would need to produce immaterial or negligible contamination or potential for exposure to qualify as “de minimis.” See 42 U.S.C. 6924. Whether an OB/OD activity could make this first demonstration under the proposed de minimis exemption would depend on a variety of site-specific factors. The proposed regulations provide four components that would need to be considered as part of this first demonstration. The first component of this first demonstration specified in the proposed regulations is the quantity of waste explosives proposed to be treated annually by OB/OD under this de minimis exemption. EPA is sensitive to the environmental and public health risks associated with even small quantities treated by OB/OD. At this time, EPA has not determined the exact quantity limit that would present an immaterial contamination potential across all locations and wastes. Rather, EPA is proposing a maximum possible quantity of waste explosives that might qualify for a de minimis exemption which would also be the maximum amount of waste explosives the facility could generate. EPA is proposing a framework by which facilities generating under 15,000 lbs NEW of waste explosives annually would be able to apply for an exemption by making a demonstration to the Director's satisfaction that the OB/OD of that waste would result in negligible contamination and potential for exposure. Specifically, the proposed regulation would limit the exemption to generators generating up to 15,000 lbs NEW annually and specify that under no circumstances will the Director approve a de minimis exemption for waste explosives treatment by OB/OD that exceeds 15,000 lbs NEW annually. Of course, at any given facility, once facility-specific information was considered ( e.g., waste types, location), the amount treatable by OB/OD under a de minimis provision may be significantly lower, or even zero. If the other facility-specific information suggested OB/OD of the proposed quantity of waste presented a material threat of pollution or potential for exposure, a de minimis exemption could not be approved at that facility. EPA considered the quantities of wastes for which facilities are permitted to OB/OD to inform the specification of a maximum potential quantity limit as part of this process. For comparison, some facilities are permitted to OB/OD 1,000 tons NEW of waste explosives annually. Additionally, EPA notes that the facilities in its closure study that produced significant pollution and have had trouble closing the units due to the contamination, all treated significantly greater quantities of waste by OB/OD annually. While EPA is proposing an annual maximum quantity of waste explosives that could potentially qualify under a de minimis exemption in terms of NEW, other quantity considerations would need to be considered as part of the demonstration, where relevant. For example, gross/total weight would be relevant in some scenarios. In particular, where the explosives or munitions cannot be separated from their packaging for treatment, it would make sense to consider the total weight, as the packaging would also be OB/OD'd and have its own associated contamination potential. The second component of the first demonstration is the waste stream(s) to be treated and their known or anticipated toxicity and byproducts. This component is important to consider due to the varying byproduct contaminants associated with the various wastes, the degree to which they are bioaccumulative or persistent in the environment, and their potential to migrate. For example, personal protective equipment (PPE) contaminated with explosives that meets the definition of waste explosive is an example of a waste stream for which a de minimis exemption would be particularly hard to justify. (Explosives-contaminated PPE and other material that does not itself meet the definition of waste explosive would not fall under the qualified exception for OB/OD.) 26 PPE is one of many combustible materials that can be contaminated with explosives. These combustible materials when open burned generate smoke plumes and large amounts of particulate matter. EPA does not, as a general matter, view these types of wastes as suitable for a de minimis exemption due to the potential threat to human health and the environment associated with the plumes. 26 For more discussion on wastes contaminated by explosives see the discussion titled “Clarification of Wastes Contaminated by Explosives” in Section II. F. Permitting of Alternative Technologies. Similar to PPE, other combustible materials, construction/building debris, and noncombustible material contaminated with explosive materials are also poorly suited for OB, which would make a de minimis demonstration particularly difficult for these wastes. These wastes potentially generate large amounts of particulate matter, toxic contaminants, and smoke plumes when burned due to the nature of the waste matrix (paper, plastic, cotton, leather, other types of cloth, mops, pallets, wood, dirt, plastic, concrete, masonry, metal, etc). (As discussed under section F. of this preamble titled, Clarification of Wastes Contaminated with Explosives, treatment by OB/OD of these wastes would generally not be allowed due to availability of safe alternatives.) OB of chlorinated plastics and chlorinated materials can release dioxins and furans. As such, these types of waste streams would generally not be appropriate to OB through a de minimis exemption due to the potential for releases to the air of particulate matter and toxic contaminants and/or smoke plumes that may convey off-site and increase risk to receptors. On the other hand, there are certain waste streams that may be more appropriate candidates for a de minimis exemption. One such waste stream is research, development, testing & evaluation (RDT&E) waste. RDT&E wastes tend to be highly variable and are often produced in small quantities. As a practical matter, they are often highly sensitive and difficult to fully characterize, which frequently leads to OB/OD being selected as a treatment method. Given their small quantities, the difficulty associated with characterization, questionable stability, and the limited potential for off-site transportation of pollution, at least when treated via OD, they may be suitable for a de minimis exclusion. The third component of the first demonstration is the location of the OB/OD treatment and its potential to impact nearby receptors, resources, and sensitive environments. The location information would allow for consideration of exposure routes and potential receptors. If, for example, a facility was located close to population centers or near sensitive community resources ( e.g., schools, hospitals) the potential for exposure to contaminants from OB/OD would be higher and the de minimis demonstration significantly more difficult to make. Similarly, proximity to sensitive or vital environmental receptors such as aquifers or other drinking water sources or within the 100-year floodplain, would heighten the threat posed by OB/OD and would make a de minimis demonstration more difficult—but not impossible—to substantiate. The fourth and final component that EPA is proposing must be considered as part of the first de minimis demonstration is permit conditions and/or other controls or protective measures that are in place and that would inform the potential for contamination onsite and offsite. EPA expects this would be an important criterion because permit conditions, or other controls and protective measures, can reduce the potential for pollution. For example, permit conditions limiting OB/OD treatment to only times with favorable atmospheric conditions would inform whether or not limited OB/OD under a de minimis exemption may be acceptable. Another example would be the extent to which the combustion temperature during the open burning would be controlled ( e.g., external fuel sources) and optimized for cleaner burning, thus potentially resulting in fewer byproducts. EPA thus believes it is logical to require the owner/operator to consider aspects of how the proposed OB/OD would occur as part of any de minimis demonstration. As noted above, the proposed de minimis exemption requires three demonstrations. The first demonstration includes four components and was discussed above. The second required demonstration the owner/operator would need to make in order to treat de minimis quantities of waste explosives by OB/OD would entail evaluating a limited suite of alternative technologies. The owner/operator would need to demonstrate that the waste explosives cannot be safely treated by an MTU or that an MTU is not available for the waste, that transportation off-site for treatment by an alternative technology is not safe or available, and, if applicable, that any existing available on-site alternative technology is unsafe for the waste in question. EPA believes it is important to consider this limited suite of alternative technology options as they, generally, could be implemented readily without a major investment of implementation resources. This stands in contrast to the resources that would be required to permit and build an onsite alternative technology. The third required demonstration the owner/operator would need to make in order to treat de minimis quantities of waste explosives by OB/OD would relate to the owner/operator's compliance track record. Specifically, EPA is proposing to require a demonstration that the OB/OD facility does not have any unresolved compliance or enforcement actions and does not have a history of significant noncompliance. EPA believes such a demonstration would be important, as a track record of compliance is often indicative of a well-managed facility that, if the track record is maintained, would present a lower risk of contributing pollution. Additionally, as discussed further in this preamble, one component of the first demonstration is a consideration of permit conditions or other controls in place that may inform the potential for contamination onsite and offsite. In order for those permits conditions and other controls to be credibly considered as pollution reducing, the facility would need to have a demonstrated track record of complying with applicable permit conditions and regulations. During implementation, the Director would review the de minimis demonstrations and would grant the exemption if the demonstrations have been made to the Director's satisfaction. The Director would deny the request for this de minimis exemption when the demonstrations required by the regulations cannot be satisfactorily met. In such a case, the facility would be required to submit an alternative technology evaluation. In instances where the de minimis exemption was granted, the OB/OD unit used to treat de minimis quantities would still need to meet all of the proposed and existing standards applicable to OB/OD units including the RCRA permitting and closure requirements. EPA is proposing that the de minimis demonstrations would need to be made on the same schedule as the owner/operator would have submitted alternative technology evaluations for the subject wastes under § 264.707(c) and (d) for permitted facilities or § 265.707(c) and (d) for interim status facilities. (See Section E. Timing for Rule Compliance for more information on the proposed timelines for alternative technology evaluation submissions.) EPA proposes to link the timelines for submitting de minimis demonstrations to the timelines for submitting alternative technology evaluations for multiple reasons. First, this approach similarly spreads out the burden of reviewing de minimis demonstrations at in the same way the proposed rule would spread out the burden of reviewing alternative technology evaluations. Second, this approach should be the most efficient for the owner/operator as they would, for the waste stream(s) in question, only need to submit either an alternative technology evaluation or a de minimis demonstration at each submission deadline. Moreover, the five-year frequency proposed for alternative technology reevaluations is a sensible frequency for de minimis demonstrations. For one, one of the proposed de minimis demonstrations is similarly predicated on evaluating the evolution of alternative technologies and, as such, would logically have a similar frequency ( e.g., the demonstration regarding the safety and availability of treatment by an MTU). This frequency should also allow for timely consideration of changes that may impact a de minimis evaluation ( e.g., population growth in the vicinity of the OB/OD unit). In practice, the proposed rule would require owners/operators of permitted facilities seeking a de minimis exemption to submit an initial set of demonstrations along with the application for the next permit renewal or Class 2 or 3 permit modification associated with an OB/OD unit. For new facilities or new OB/OD units that are proposed to treat waste explosives, the owner/operator seeking a de minimis exemption would submit the demonstrations as part of the permit application for the new OB/OD unit. For interim status facilities seeking to use the de minimis exemption, the demonstrations would need to be submitted within one year of the effective date of the rule. For both permitted and interim status facilities, the de minimis demonstrations would need to be made every five years after the initial demonstrations were made in order to remain eligible for the exemption. EPA is also proposing that if, at any time, the continued treatment of waste explosives by OB/OD under the de minimis exemption would present a threat to human health and the environment, the owner/operator must notify the Director within five days. EPA is proposing this requirement in order to ensure the de minimis exemption does not result in greater than negligible contamination or potential for exposure or otherwise present a threat to human health and the environment. Additionally, to further this goal, EPA is proposing that the Director would be able to, based on reasonable belief that the continued treatment of waste explosives by OB/OD under the exemption would present a threat to human health and the environment, request additional information from the owner/operator to determine if the OB/OD activities still meet the de minimis criteria. If a determination is made under either of those scenarios that the continued treatment of waste explosives by OB/OD under the de minimis exemption would present a threat to human health and the environment, the exemption would be withdrawn and the owner/operator would be required to submit to the Director an alternative technology evaluation for the subject waste streams in accordance with proposed criteria for alternative technology evaluations. EPA requests comment on several aspects of the proposed de minimis exemption, including the appropriateness of the components of the demonstration. EPA solicits comment on whether additional demonstrations or additional components of the first demonstration should be included in de minimis exemption and how those additions should be applied. In particular, EPA requests comment and supporting data and information on whether 15,000 lbs NEW annually is an appropriate maximum limit that could potentially qualify under a de minimis exemption. Relatedly, EPA requests comment and data and information on what other quantity levels may be appropriate under a de minimis exemption. For example, EPA requests comment on the following questions. Could the quantities that define very small quantity generators 27 be an acceptable benchmark for de minimis? Should EPA provide an exemption at a smaller annual limit ( e.g., up to 5,000 pounds NEW annually) without any demonstration beyond quantity, and require a more robust demonstration ( e.g., considering location, waste type, etc.) for a larger category ( e.g., 5,000-15,000 NEW annually)? Should EPA specify in regulation different maximum waste quantity criteria for different waste streams? For example, should EPA specify a unique total weight maximum quantity for explosives or munitions that cannot be separated from their packaging for treatment? If so, what might be an appropriate maximum potential quantity for such wastes? Should frequency of treatment by OB/OD be a consideration? Should any wastes or should certain waste streams be excluded from consideration for the de minimis exemption? Alternatively, is there no amount or type of waste that should be exempt from consideration of alternative technologies, and thus should EPA not finalize a de minimis exemption? Should the exemption be limited to only OD instead of OB? Should the exemption be limited to only military munitions or a specific waste stream such as rocket motors? To RDT&E wastes? Should EPA consider requirements for public notification and/or community engagement in situations where the de minimis exemption is exercised? If so, should these be limited to only interim status facilities given that the permitting process already includes such measures? 27 Very small quantity generator is a generator who generates less than or equal to the following amounts in a calendar month: (1) 100 kilograms (220 lbs) of non-acute hazardous waste; and (2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e); and (3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e). C. Waste Analysis and Characterization Introduction and Description Under § 262.11, a person who generates a solid waste must make an accurate hazardous waste determination at the point of generation. Under § 270.14(b)(2), Contents of part B; General requirements, an application for a treatment, storage, or disposal (TSD) permit must contain a waste analysis plan and chemical and physical analyses of the hazardous waste, debris, and material to be handled at the facility. These analyses must contain all the information necessary to treat, store, or dispose of waste properly in accordance with part 264. Additionally, prior to any TSD activities at RCRA facilities, owners/operators “must obtain a detailed chemical and physical analysis of a representative sample of the wastes” and develop a waste analysis plan under § 264.13. Accurate waste analyses facilitate proper handling of RCRA wastes, thereby minimizing the release of contaminants, byproducts, and wastes associated with OB/OD and ensuring protection of human health and the environment. Waste analysis is also crucial for waste explosives in determining whether the wastes are in fact explosive and whether there is a safe and available alternative treatment that can be used in lieu of OB/OD. Waste streams currently treated by OB/OD are varied and potentially dangerous to handle, making accurate waste testing more challenging than for many other hazardous wastes due to safety concerns. Importantly, waste analysis for operating OB/OD units currently varies in detail and quality. Thus, EPA is proposing requirements specific to waste explosives which would clarify how waste analyses must be conducted to determine whether a safe alternative treatment is available for that explosive waste and, if not, whether the waste is eligible for treatment by OB/OD. Proposed Revisions and Supporting Rationale EPA proposes adding § 264.706 Waste Analysis under the new proposed subpart Y for OB/OD units and § 265.706 Waste Analysis for interim status OB/OD units. Owner and operators would have to comply with both the proposed §§ 264.706 and 265.706 requirements in addition to the existing general waste analysis requirements under § 264.13. Under the proposed § 264.706 requirements, an owner/operator would be required to conduct a detailed and complete waste analysis for each individual explosive waste stream. In addition, the owner/operator would be required to review and update the waste analysis whenever there is a change in the waste generated and at the time of permit application or renewal. This is consistent with existing waste analysis regulations; however, § 264.706 would additionally provide definitions, clarifications, and requirements specific to waste explosives. EPA would clarify that individual waste streams must be analyzed for each individual product or potentially explosive material; it would not be adequate to analyze wastes based on large groups of wastes, such as “propellants,” “small arms,” or “fuzes.” For example, all small caliber rounds may be grouped for the purposes of final treatment, but they may not be considered the same when conducting waste analyses. Each type of round, identified by manufacturing or product specifications, would be analyzed separately. Explosives or propellants would be separately identified by their individual chemical formulations, including inert binders and materials. Variations of propellant due to degradation and ageing would not have to be analyzed separately unless such degradation leads to significantly different handling procedures and chemical properties. Some waste streams consisting of debris or material contaminated with explosives may be combined for the purposes of the waste analysis, provided they are of similar type of material and contamination. For example, explosive-contaminated gloves and shoe booties may be considered the same waste stream if they are both contaminated to the same extent and with the same explosive. However, these materials would not be combined with significantly different materials, such as building and construction materials, for waste analysis purposes even if contaminated with the same explosive. For example, personal protective equipment should not be combined with concrete debris and lumber even if both are significantly contaminated with the same waste explosive. Under § 264.706(a), EPA proposes that wastes may only be considered for treatment by OB/OD if the waste is found to be waste explosives. EPA proposes the definition of waste explosives in § 260.10 as “hazardous wastes that exhibit the reactivity characteristic (D003) and are capable of detonation or explosive chemical reaction as defined in § 261.23(a)(6) through (8) and include propellants, explosives, pyrotechnics, munitions, military munitions as defined in § 260.10, and unexploded ordnance.” Further analysis described in § 264.706 is in addition to the standard requirements currently in the regulations. The tests described in this section are secondary to the determination if a waste is a waste explosive; however, the tests here may be a part of that determination. The primary purposes of the tests, descriptions, or properties that would be required in this section are to determine (1) if an alternative technology is available and (2) what specific permit or treatment conditions are needed for OB/OD or alternative technology. In § 264.706(b), EPA is proposing that waste analysis would include, for each unique waste stream, a physical description, chemical constituent analysis, and chemical properties analysis, unless the information is already known from process or generator knowledge as described in this section. 28 Within each set of waste streams described, owners/operators might be required to conduct multiple waste analyses for the same type of munition or explosive. If the explosive is ageing, degrading, or otherwise off specification and this causes a difference in how the explosive must be handled and treated, then a new analysis would be done for each group of explosives, and they would be considered separate waste streams. For example, an owner/operator that is managing a model of rocket motors would separate a group of the same model rocket motors if some of them are found to be significantly older or degraded and the age or degradation is the reason for different handling or treatment procedures. 28 There are thousands of items in the DoD inventory, and any individual site will have far fewer items than that. Larger, more complex sites may have a couple hundred items that must be analyzed. Depending on the analysis, these items may be combined for treatment purposes. Physical description is most important for munitions, explosives, fireworks, fuzes, and other designed materials that are not bulk explosive or propellants. The physical description would include the design, dimensions, mass, main component features, and the casing thickness. All these considerations are important in determining if there is an alternative technology that could be used in lieu of OB/OD. Physical description of the bulk explosives, including propellants, would include the phase, color, mass, density, and any other physical characteristics determined relevant by the permitting authority. Physical description for explosive-contaminated debris or material wastes would include a description of the items and base materials that are contaminated, in addition to the source and type of contamination. Under the proposed requirements, a complete chemical analysis and breakdown would be required to determine the chemical constituents and the percent composition of each chemical in the waste stream. A Safety Data Sheet (SDS), if available, for each component chemical would be required as part of the analysis. Wastes containing multiple materials or components would have their chemical constituent analysis described separately for each material. As an example, rockets, munitions, fireworks, and other wastes would have their chemical constituent analysis for its propellant, energetic materials, casings, and metals listed separately. Explosive-contaminated hazardous debris and material wastes would not need a chemical analysis on the contaminated base materials ( e.g., gloves), but would need a chemical constituent analysis on the contaminant of concern, provided the materials do not contain any wastes prohibited from OB/OD under § 264.708(b)(11). The NEW for each waste stream would be included as a part of the chemical constituent analysis for each individual waste stream. In § 264.706(b)(4), owners/operators would be required to analyze the chemical properties of the chemical constituents which are described above. The analysis would include measures of insensitivity (for impact, friction, and electrostatic discharge (ESD)), flash point, pH, and free liquid determination. Figure of insensitivity is the measure of the probability of a material to initiate or detonate in response to quantities of external stimuli. Impact insensitivity is most commonly done with a drop-weight tower, friction insensitivity has several tests including the Alleghany Ballistic Laboratory (ABL) and Bundesanstalt für Materialforschung und -prüfung (BAM) friction tests, and ESD insensitivity is measured with varying energies delivered via capacitors. 29 The permitting authority may require alternative tests or analyses if the determination is made that particular tests are unsafe or unnecessary. 29 The drop-weight tower involves dropping a 1 kg mass repeatedly to determine the height which produces initiation 50% of the time. ABL and BAM tests use specialized sample plates and moving wheels to determine the initiation point in response to friction stimulus. EPA assumes that much of the information required for its proposed waste analysis requirements is already likely known to owners/operators. EPA is proposing that process knowledge and generator knowledge are acceptable in lieu of a detailed and complete waste analysis for a given material as long as it would meet the requirements of § 264.706(d). Process knowledge would include known reactions when materials and reagents mix. For example, the nitration of toluene to form TNT would be a form of well-established chemistry and the presence of TNT in a material may be determined from knowledge of the generating process. Many chemicals found in an explosives waste stream would already have many of the chemical properties described above known. It would not be necessary to determine the impact sensitivity of TNT given that this is well-established in the scientific literature. Owners/operators may find such published chemical data from in a chemical manufacturer's SDS that may be used instead of site generated testing data. All details of the waste analysis, including supporting information such as known chemical properties of the materials or components thereof, would be required to be submitted to the permitting authority. EPA proposes that owners/operators submit these data electronically to ease submission. EPA acknowledges that there may be unknown information with respect to certain explosives wastes and that it may not be practicable to safely conduct testing to provide data on all relevant chemical properties. EPA is proposing § 264.706(e) to require owners/operators make reasonable efforts to gather the data required in the proposed waste analysis regulations. Should there be any safety concerns with acquiring the data, the permitting authority may allow some sections to be submitted as incomplete if they would not compromise the evaluation of alternative technologies or development of protective permit conditions described in sections G and H. EPA also acknowledges there is some waste analysis information that may be of a sensitive or classified nature and notes that such information could be withheld from public disclosure and would not need to be referenced in the permit. The owner/operator would need to work with the permitting authority to determine how the data sharing and access can occur, including acknowledging that the minimum regulatory staff require access to the data and that the regulators may apply for and obtain adequate security clearance, if needed. The permitting authority is responsible for furnishing staff that can go through the security clearance process and obtaining and maintaining adequate security clearance. Summary and Request for Comment EPA is requesting comment on its proposed requirements for waste analysis applicable to explosive wastes in § 264.706. EPA is also requesting comment regarding how best to balance protection of sensitive or classified information with the duty to provide for meaningful public involvement through the public notice and comment process. D. Alternative Technology Evaluation and Implementation Introduction and Description As discussed in Section II.A. Background, this rulemaking proposes, among other changes and additions, to revise the existing regulation that established an exception to the prohibition on the OB of hazardous waste but that allows for the OB/OD of waste explosives when there are no safe modes of treatment available. The revisions are needed to provide clarity for the required actions, which are to conduct an evaluation or reevaluation of alternative technologies to OB/OD and to implement identified technologies; as well as to provide a process for demonstrating eligibility, through an alternative technology evaluation, for the exception to the prohibition and the associated timing for doing so. The existing regulation at § 265.382 banned OB, including OD, of hazardous waste with one exception—OB/OD was allowed for the treatment of waste explosives “which cannot safely be disposed of through other modes of treatment.” This means that a facility utilizing OB/OD must demonstrate that there are no other safe and available alternatives for disposing of its waste explosives. Regulatory language referring to a demonstration was included in the 1978 rule that proposed a prohibition on the OB of hazardous waste. 30 However, when the regulatory language was finalized in 1980 at § 265.382, this demonstration language was not finalized because it was concluded that open burning of hazardous waste cannot be conducted in manner that is protective of human health and the environment and thus, there was no longer a need. It is unclear, however, why the demonstration language was not included in the final regulation with respect to OB/OD but, such a demonstration remains implicit so that eligibility for the use of OB/OD can be proven and a permit can be issued for treatment of waste explosives via OB/OD. 30 Open burning of hazardous waste was originally proposed to be prohibited unless the owner/operator “can demonstrate that alternative treatment and disposal methods . . . have been evaluated and determined to be technically or economically infeasible or that the transport, treatment, and disposal of such waste poses a greater risk to human health or the environment than open burning.” 43 FR 59000, December 18, 1978. Further confounding implementation of alternative technologies for facilities operating under subpart X permits or “OB/OD permits,” there is no mention of the prohibition of OB of hazardous wastes nor the exception for waste explosives in the subpart X regulations at § 264.600. However, EPA did address its expectations for permitting OB/OD units in the 1987 final rule for subpart X (see footnote 13). These expectations and supporting statutory references are restated in EPA's June 7, 2022, policy memorandum entitled Open Burning and Open Detonation (OB/OD) of Waste Explosives Under the Resource Conservation and Recovery Act (RCRA). To summarize from the memorandum, EPA expects that subpart X permits would only be issued for OB/OD units treating waste explosives as defined in § 265.382, and that such permits would incorporate the prohibition on OB/OD except for waste explosives which cannot safely be disposed of through other modes of treatment (see footnote 17). Proposed Revisions and Supporting Rationale EPA proposes to clarify the existing regulations to remove any ambiguity in implementing the requirement to demonstrate eligibility for continued use of OB/OD in light of the availability of safe alternative technologies. EPA proposes to revise the regulatory text at § 265.382, and include new regulatory text in new subpart Y, §§ 264.704 through 264.715 and §§ 265.704 through 265.715, to explicitly state that OB/OD facilities must demonstrate, through an evaluation or reevaluation of available alternative treatment technologies, which, if any, of their waste streams have no available safe alternative treatment and, thus, can continue to qualify for the exception to the prohibition on OB/OD for waste explosives. In addition, this proposed rule provides the criteria for evaluating alternative technologies and the required content for documenting that evaluation, as well as the timeframes for conducting alternative technology evaluations and implementing identified alternatives. EPA notes that, during the evaluation and implementation periods for an alternative technology, owners/operators may continue use of OB/OD to treat the subject wastes. There are several reasons, discussed in this preamble, that may contribute to a misperception that unless EPA updated its regulations to state that safe alternatives are available, the requirement to demonstrate eligibility for OB/OD could not be implemented. It is not EPA's position that additional regulations must be proposed that explicitly state that new evaluations or reevaluations must be conducted to assess safe alternatives that are now available, because the expectation has been and remains that when technologies become available, they would be implemented. Nevertheless, owner/operator uncertainty regarding the requirements of the existing regulation has contributed to inconsistent application of the regulation and as a result fewer alternative technologies are being utilized than could be at this time. One of the goals of this proposed rule is to increase the use of alternative treatment technologies to the maximum extent possible by clarifying the existing regulation and providing a process and timeframes for demonstrating whether OB/OD facilities can continue to qualify for OB/OD. Need for Clarification Despite the uncertainty associated with the existing regulation that OB/OD facilities must demonstrate eligibility for OB/OD, EPA recognizes that there are facilities and regulatory authorities that have been implementing the existing regulations as written. As of April 2023, 24 facilities out of 67 operating facilities have conducted an evaluation of available alternative treatment technologies and of those, 13 have identified an alternative while 11 have concluded there are no safe alternatives available. On the other hand, 41 facilities have not conducted any evaluation and two facilities are not known to have conducted an evaluation to demonstrate eligibility. Not included in this count are the facilities that have operated or are operating alternative treatment technologies. There may be several reasons why implementation of the requirements has been inconsistent, ranging from omission of explicit demonstration language, leading to differing views on applicability; absence of a process for conducting the demonstration; or insufficient communication by EPA on the development and use of available alternatives over the past few decades leading to a “business as usual” approach to OB/OD. Availability of Alternative Treatment Technology Information As referred to above, insufficient communication regarding availability of alternative technologies may be a reason why there has not been consistent implementation. If information is available but has not been previously compiled and published in a document for reference, novel technologies can be daunting to implement regardless of requirements. In recognition of this, EPA set out to collect and publish information that could assist OB/OD facilities in evaluating potential alternative technologies and that would be helpful to permitting authorities in facilitating facilities' transition to alternative technologies. EPA published a report in December 2019, Alternative Technologies to Open Burning and Open Detonation of Energetic Hazardous Wastes, (see footnote 20) that describes available alternative treatment technologies and identifies the extent to which individual technologies have been developed. It also identifies those that have been implemented at various locations because they are mature, maintainable, reliable, and have been demonstrated to be effective and safe for a variety of explosive waste streams. The report provides the formative steps for evaluating the efficacy and the pros and cons of the technologies for particular applications but does not attempt to analyze the technologies according to the many specific types of waste explosives each is capable of treating. Much of this specific information, however, is available in the NASEM January 2019 report on alternatives, Alternatives for the Demilitarization of Conventional Munitions. (January 2019). In the NASEM report, the committee performed an analysis of the stable munitions in DoD's demilitarization stockpile that are treated by OB/OD or static fire, 31 grouped the items by category, and listed the items that can be treated by an existing alternative technology. The goal of the analysis was to provide examples of possible alternative technologies for each category (see footnote 4, pgs. 81-83). 31 Static fire is a form of open burning that is most often used for treatment of propellant in rocket motors. The rocket motors are placed either horizontally or vertically (nose down) and secured in a stand and an electrical charge initiates the burn. (See footnote 4, pg. 31.) Another resource on alternative technologies that has become available since the publication of EPA's and NASEM's reports is the International Ammunition Technical Guidelines (IATG) for Demilitarization, Destruction and Logistic Disposal of Conventional Ammunition published in March 2021 by the United Nations Office for Disarmament Affairs. 32 This report provides a description of available alternatives and their treatment capabilities, a brief mention of cost considerations for alternative technologies, use of mobile alternative treatment technologies, and negative environmental impacts of OB/OD. 32 United Nations Office for Disarmament Affairs (UNODA), IATG 10.10:2021, 3rd Edition. https://data.unsaferguard.org/iatg/en/IATG-10.10-Demilitarization-destruction-logistic-disposal-IATG-V.3.pdf. The IATG document notes that technology exists to destroy most ammunition types. However, while the technologies exist, the report does note that implementation is primarily a logistics issue due to the inherent hazards and risks associated with processing operations and large tonnages and quantities of individual items, among other site-specific considerations (see footnote 36, pgs. vi and 7). This is consistent with NASEM's finding that, with few exceptions, it appears that it is technically possible to apply existing alternative technologies to demilitarize the majority of the DODICs [DoD Identification Code] in the demilitarization stockpile inventory. The exceptions referred to are the munitions identified as unstable and potentially shock sensitive. A caveat that should be mentioned is that NASEM was unable to fully investigate whether or not existing alternative technologies are appropriate for every DODIC currently being disposed of by OB/OD, because that would require an in-depth technical and engineering analysis of the construction, fuzing, and functioning of each specific munition (see footnote 4, pg. 80). EPA discusses later in this section that alternative technology evaluations are site-specific such that each waste stream at a facility must be evaluated for available alternatives. Also of interest, the IATG document discusses MTUs as a potentially effective option. As new MTUs become available, and as more entities seek their use, they become more practical; and with the capability to rent their services, they become more accessible (see footnote 36, pg. 10 and 13). EPA recognizes that in the U.S., MTUs could provide an effective solution for facilities using OB/OD infrequently, that have smaller quantities of waste explosives requiring disposal, that have a need to supplement an existing alternative technology, or any combination of these situations. In the U.S. there are explosives treatment MTUs (which are in most cases owned by private companies) that are not widely used due to the time-consuming and resource intensive efforts to obtain a RCRA permit for a limited duration and for every location it is used. EPA is proposing a new streamlined RCRA permitting approach to facilitate the use of MTUs by removing some of the regulatory burden associated with issuing RCRA permits for these units (see Section II.L. Mobile Treatment Units for Waste Explosives). MTUs may be subject to permitting or regulation under other laws as well ( e.g., Clean Air Act). Environmental Impacts of OB/OD Although not discussed at length, the IATG document notes in several places the potential negative environmental impacts associated with OB/OD. The EPA and NASEM reports also note potential negative environmental impacts due to the release of treatment byproducts directly into the environment. There are several potential routes of release from OB/OD, including air emissions and “kickout,” that are challenging to sample, monitor and quantify. Many studies have attempted to characterize air emissions from OB/OD; such characterization is fundamentally difficult to do because neither OB nor OD have confined emissions that can be readily monitored or sampled, unlike an incinerator from which stack emissions can be monitored and sampled. OB/OD can also produce residues and “kickout,” which is the dispersal of metal fragments, unreacted explosive contaminants, and other waste items, onto the land; these releases are also difficult to measure. These challenges impart uncertainty regarding quantities and types of contaminants that are released into the air, soil, groundwater, and surface water bodies from OB/OD of waste explosives. This uncertainty raises concerns about negative impacts to human health and the environment from wastes that have the potential to release heavy metals, perchlorate, particulate matter, PFAS, dioxins/furans, explosive compounds, and other toxic and hazardous contaminants. (See also Section II.A Background above.) Studies have sampled air emissions within an inflatable hemispherical detonation chamber known as a “bang box,” and by using aerostat fliers or balloons and airplanes outfitted with sampling equipment, or samplers affixed to poles, in an attempt to capture and analyze emissions from open burns. More recently, studies have utilized unmanned aerial systems (UASs) or “drones” to collect air emission data from both OB and OD. These data are considered more representative than data obtained from prior methods due to the ability to move the drone into the plume and maintain position within the plume. Based on a reasonable assumption that the plume is homogeneous, and a known mass and composition of the waste explosive being tested, the total emissions can be estimated. However, despite the advances in measuring emissions and the improved methods for calculating total emissions, questions regarding the representativeness of the data remain because more data are needed that replicate the quantities and chemical composition of waste explosives that are routinely treated at OB/OD facilities before definitive conclusions can be made. 33 34 Ideally, future studies would include both air sampling and soil/surface sampling so that a more complete mass balance can be achieved by accounting for all treatment byproducts, similar to the two studies discussed in the next section. 33 “Field determination of multipollutant, open area combustion source emission factors with a hexacopter unmanned aerial vehicle.” J. Aurell, et al. Atmospheric Environment, 2017. https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NRMRL&dirEntryId=339722. 34 “Characterization of Air Emissions from Open Burning at the Radford Army Ammunition Plant.” J. Aurell, Brian Gullet, August 23, 2017. EPA is aware of two studies that sampled air emissions and ground surface deposition from OD events. One study utilized a UAS to measure energetic residues from five separate uncovered detonations, using a block of Composition C4 explosive 35 for each detonation, that took place on snow-covered ice. 36 Snow was chosen to improve the accuracy and quality of the surface measurements. It not only provides a visual on the location and extent of residue deposition, but it also eliminates interference encountered when detonations are conducted on or under the soil, which causes soil to become entrained with the residues from the blast. The detonation reactions were very efficient, averaging 99.9993%, which means that very little explosive residue was generated ( i.e., only 0.0007% of the C4 was unreacted). Of the total energetic residue that was generated and measured via air and surface sampling, it was found that less than 7% was in the air emissions, while nearly 93% was deposited on the snow. EPA notes that this finding, in which only a negligible percentage of explosive was unreacted, are not unexpected because solid chemical explosives like C4, when not combined with other materials, combust efficiently and produce much less residue than when combined with other explosives or munitions. A significant difference between this study and typical waste treatment activities is that waste explosives and munitions treated during OD events contain more than just the explosive donor charge ( e.g., C4). The wastes can include metal casings and other items that do not undergo complete combustion and produce residues; metals are not combusted at all and depending upon the wastes treated, the dispersed metal fragments often contain unreacted explosives. 35 C4 is an explosive comprised of RDX, HMX, and plasticizer and is often used to initiate treatment of waste explosives and referred to as the donor charge. 36 “Improving post-detonation energetics residues estimations for the Life Cycle Environmental Assessment process for munitions.” Walsh M., et al. November 15, 2017. https://www.sciencedirect.com/science/article/pii/S0045653517318490. EPA has identified only one other study that has collected emissions from OD. This study, which precedes the study discussed above, was conducted using an aerostat flyer and was comprehensive in that it was the first to sample emissions from OB, static fire, and OD and collect a limited number of soil samples to ascertain whether metals and energetics collected in the plume emissions were from the existing soil content or to the munitions. 37 The study resulted in successful sampling campaigns and remains the first and only one to take measurements under conditions representative of routine open air detonations and burning of munitions. The results from detonation of Comp B compare well with the more recent sampling conducted during detonations of C4 noted above such that a very small fraction was found in air emissions. The limited data from detonation of munitions found that the amount of the metal transferred to the air was between 0.3% and 22% with the majority of data indicating about 1% or less. However, this indicates that a significantly large portion of the metal emissions are deposited on the ground, accounting for the remaining balance in the range of 78% to 99.7%. 37 “Aerostat-based sampling of emissions from open burning and open detonation of military ordnance.” J. Aurell, et al. Journal of Hazardous Materials, 2015. https://19january2017snapshot.epa.gov/sites/production/files/2015-03/documents/9546011.pdf. Both studies, while informative regarding the constituents that are released into the air from OD events, indicate that the balance of emissions from OD events are deposited on the ground surface. The findings from these studies correlate with EPA's findings that deposition from repeated OD events can cause extensive soil and groundwater contamination when the deposition products remain on the ground surface (see footnote 5 and subsequent paragraphs). As discussed, it is challenging to obtain air emission data from OB/OD events, particularly for events that would be representative of routine treatment, that could provide a quantitative estimate of potential human health and environmental impacts. Every study that has been referenced in this section has a common thread, which is that there are limited data points and that results should be verified through additional sampling. However, there is soil and groundwater data collected from OB/OD unit areas ( i.e., per monitoring and reporting requirements of § 264.601), that does provide a quantitative measure that can be used to estimate potential impacts to human health and the environment. In addition, EPA initiated a study of nine OB/OD facilities that have undergone, or are undergoing closure, to examine the assessment and cleanup procedures used to achieve closure at each of the nine sites (see footnote 5). Assessment procedures characterize the site by identifying the areas of contamination and the contaminants found in each environmental medium including soil, groundwater, surface water, and sediment. Cleanup procedures are the techniques and technologies used to conduct the cleanup. The goal of the study was to determine the extent to which the cleanup procedures implemented at each site have achieved clean closure 38 ( i.e., closure by removal or decontamination) and are protective of human health and the environment. 38 “Clean closure” in this notice refers to closure by removal or decontamination. During closure, facility owners/operators must comply with the closure performance standard at § 264.111 or § 265.111. According to §§ 264.111 and 265.111, closure must be completed in a manner that: (a) minimizes that need for further maintenance; (b) controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to ground or surface waters or to the atmosphere; and, (c) complies with the unit-specific closure requirements of part 264 or 265. Generally, two types of closure are allowed—closure by removal or decontamination and closure with waste in place. Because OB/OD is considered treatment rather than disposal, OB/OD facilities are required to conduct closure by removal or decontamination. Drawing on information and data provided for the site assessment procedures, EPA documented the contaminants that exceed action levels in environmental media at closed OB/OD units. 39 These contaminants include explosives (RDX, HMX, TNT, DNT, perchlorate, nitroglycerine), heavy metals (aluminum, arsenic, barium, cadmium, chromium, cobalt, copper, lead, manganese, mercury, selenium, silver, thallium, zinc), and other contaminants (PCBs, benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, bis(2-ethylhexyl)phthalate, chrysene, dioxins/furans, DNB, EDB, endosulfan, ethylbenzene, fluoranthene, indeno(1,2,3-cd)pyrene, naphthalene, nitrates, nitrobenzene, TNB, xylenes). In summary, sites that open detonated waste explosives exceeded action levels more often than sites that only open burned. In cases where both OB and OD led to an exceedance, the maximum concentration of the contaminant associated with OD was most often greater than the concentration resulting from OB (see footnote 5). Overall, this study, which can be found in the docket for this rulemaking, demonstrates that dispersal of OB/OD treatment residues into the environment contributes to soil and groundwater contaminant concentrations that exceed risk threshold levels. 39 Each site determined remediation standards based on the expected future use of the site, thus the action levels reported for each facility may vary in their representation ( e.g., residential specific screening levels, residential and industrial Maximum Contaminant Levels, preliminary remediation goals, etc.). In closing, it should be noted that enclosed thermal technologies such as incineration have been more thoroughly evaluated than OB/OD, due to the above-noted challenges with evaluation of OB/OD emissions and potential release of contaminants, byproducts, and wastes; and it has been determined that combustion controls and air pollution controls are needed to ensure protective operation of these technologies (see §§ 264.340, 266.100, 270.62, 270.66, 63.1200). Due to its open nature, it is not possible to apply such controls to OB/OD. Thus, these uncontrolled emissions from OB/OD are a clear cause for concern. Alternative Treatment Technology Evaluation Criteria and Content In March of 2022, EPA held a series of early engagement meetings to solicit feedback on revising and amending several regulatory requirements related to OB/OD. One of four topics that EPA presented for feedback was an explicit requirement to evaluate alternative treatment technologies and implement identified alternatives, as well as criteria that should be considered when evaluating alternative technologies. Across the individual participant groups, there were no objections to inclusion of an explicit regulatory requirement. Regarding the criteria, EPA received a variety of suggestions, but a common thread was that safety is the most important criterion. In addition to safety, suggested criteria are maturity, environmental protectiveness, demonstrated effectiveness, cost, overall lifecycle emissions and exposure, volume and characteristics of waste streams, commercial availability, reliability, and maintainability. One commenter grouped individual criteria under the umbrella of “viability,” such that technologies must be consistently reliable, maintainable, and not have high operational costs (see footnote 23). EPA believes that certain criteria should be mandatory while others should not but could be utilized to make a business decision—for example, to select the best technology or technologies for the individual facility's needs. The criteria that EPA proposes to be mandatory for every technology evaluation are unchanged from the original criteria finalized in 1980 at § 265.382, which are that technologies must be safe and must be available. As explained in more detail in this section, a safe technology accounts for potential risk of explosion when handling and treating waste explosives as well as potential risk to human health and the environment from treatment of munition constituents, byproducts, and wastes associated with OB/OD. EPA recognizes there are long-term risks and immediate risks when managing waste explosives. Any acute risks from explosion due to increased handling and storage associated with alternate technologies must be evaluated by an explosives safety expert as part of the “safe” technology determination. Available means that a technology can be used, rented, leased, purchased, or custom designed and constructed from a qualified vendor or qualified entity and has been determined through a technical evaluation, such as a demonstration at full-scale, to consistently perform the functions necessary to be effective. These factors are based upon EPA's mandate under RCRA to protect human health and the environment, and in consideration of the hazards associated with the handling, storage, transportation, and treatment of waste explosives. A requirement to implement an alternative technology cannot be met if one is not safe and available. Criteria that EPA does not believe should be included as mandatory criteria for evaluating whether technologies can be used are tied to the cost of implementing and operating alternative technologies. These cost-related criteria should not remove a technology from consideration. Ultimately, these criteria relate to a business's determination of a technology's suitability for its waste streams. Cost is a criterion given considerable weight by regulated entities when choosing between available treatment and disposal options that meet their needs and environmental compliance requirements. However, EPA does not believe it should be a mandatory criterion for screening out potential alternative technologies. The relevant standard under RCRA section 3004 requires that treatment technologies protect human health and the environment. Therefore, regulated entities must identify and implement technologies that meet this standard. While EPA recognizes regulated entities will likely consider cost and other practical factors in such screening, there is no need for EPA to identify these considerations as mandatory criteria, nor would it be appropriate for EPA to do so, because the regulated entity must ultimately demonstrate that the approach selected meets the protectiveness standard. Therefore, EPA has not included cost as a criterion that could be used to screen out potential alternative technologies. EPA restated in the 1987 final rule that OB of nonexplosive waste could not be conducted in a manner that was protective of human health and the environment, saying the Agency “made this finding in 1980 in promulgating the general ban on OB of nonexplosive hazardous waste (§ 265.382) and has no new information to suggest this conclusion should be revised. The Agency, therefore, intends to deny any permit applications it receives under subpart X for such activities.” (See footnote 13.) Alternative Technology Criteria and Evaluation Contents Requirements The following sections present the technology criteria that EPA proposes to require for evaluating potential alternative treatment technologies, and the content believed to be necessary to allow for regulatory authorities to determine that the evaluation conducted by the facility, or on behalf of the facility, is complete and the conclusions provide adequate rationale. All information would be compiled in a report for submission to the regulatory authority for review and approval. The proposed regulations are located at §§ 264.707 and 265.707. Alternative Technology Criteria For the alternative technology criteria, EPA is specifying the proposed criteria according to the existing requirements: safe and available. The only revision is that EPA is now providing clarity by describing how these terms are to be applied when evaluating alternative technologies. Safe means that a technology must be designed, constructed, and operated in a manner that is safe for the wastes to be treated and that appropriate procedures and technologies are used to ensure safe handling and treatment and appropriate safeguards for worker safety as determined by explosives specialists. Safe can also refer to “protection” of human health and the environment when considering a technology's treatment byproducts; however, protectiveness in this sense would be evaluated during the permitting process when the appropriate standards are developed. EPA discusses, in Section II. F. Permitting of Alternative Technologies, how the ability to monitor operations and treatment byproducts and the capability to treat toxic byproducts are critical factors to assure protectiveness. Available means that a technology can be used, rented, leased, purchased, or custom designed and constructed from a qualified vendor or any entity and has been determined through a technical evaluation to consistently perform the functions necessary to be effective. Published sources such as EPA's and NASEM's reports may also be consulted to help inform whether certain technologies could be applied. Safe EPA recognizes that any technology under consideration for use must be safe for the wastes to be treated. Safety has been an existing standard since 1980, serving as one of the criteria for allowing an exception for waste explosives to be treated by OB/OD. In this rulemaking, EPA is clarifying that safety remains an important criterion, but is providing additional context in terms of alternative technologies that are now available. Given that any decision regarding whether a technology is safe to use is based on the degree of risk the entity using the technology is willing to accept, EPA is clarifying that safety is a mandatory criterion and proposes safety to mean that a technology must be designed, constructed, and operated in a manner that is safe for the wastes to be treated and that appropriate procedures and technologies are used to ensure safe handling and treatment and appropriate safeguards for worker safety as determined by explosives specialists. See proposed safety criterion at §§ 264.707(b)(1)(i) and 265.707(b)(1)(i). Safety is cited by regulated entities as an important criterion and the number one criterion by the DDESB for acceptability of an alternative treatment technology. DoD's goal is to expose the minimum number of people, to the minimum amount of explosives for the minimum period of time (see footnote 23). Both OB/OD and alternative technologies require explosives handling: transport to storage, placement in storage, removal from storage and loading for transport, transport to treatment site, and unloading and placement at the site. Additional handling may be required for alternative technologies, including any needed pre-treatment activities such as disassembly or size reduction ( e.g., to reduce the physical size and NEW). Although most alternative technologies and pre-treatment technologies increase handling, highly automated processes may reduce safety risks to workers when compared to OB/OD (see footnote 4, pg. 25). Automated processes are designed according to specific waste types, and thus are more likely to be utilized by facilities that have large quantities of similar waste types that would not require frequent re-tooling and re-programming to switch from one waste type to another. There are also instances when additional handling is performed in preparation for OB/OD, for example, when projectiles contain submunitions. The submunitions are removed from the projectile casing by disassembly before treatment to prevent untreated submunitions from being dispersed into the environment. Thus, in some instances OB/OD may involve the same amount of explosive risk through handling as compared with an alternative technology. A first step in evaluating alternative technologies is determining which wastes are amenable to treatment by an alternative technology. For waste explosives that are documented to be unstable and/or potentially shock sensitive and have been determined to be unsafe by an explosives specialist, 40 there may be no other choice but to treat these wastes by OB/OD. The NASEM report acknowledges in several instances that OB/OD may be the only safe option for munitions that may detonate or deflagrate when disturbed. Thus, handling and transportation of these munitions should be minimized to reduce exposure of workers to the explosive hazard (see footnote 4, pg. 79). However, the NASEM report also indicated that only two munitions that were in the demilitarization stockpile or “B5A account” at that time had been identified to the committee by the Office of the Product Director for Demilitarization (PD Demil) as not suitable for alternative contained demilitarization due to instability. According to PD Demil, the 105 mm rocket-assisted projectile (quantity of 240 tons) and 8 in. rocket-assisted projectile (quantity of 744 tons) were potentially shock sensitive due to depletion of stabilizers in the rocket propellant (see footnote 4, pg. 78). To put this into perspective, of the total 430,987 tons of munitions in the total demilitarization stockpile as of September 30, 2017, 984 tons, or approximately 4%, could not be treated by an alternative technology due to instability. This inventory will fluctuate over time, but it is helpful to understand approximately how much waste may continue to require treatment by OB/OD. EPA does anticipate that, as more alternative technology evaluations are conducted at individual facilities as a result of this rulemaking, the number of wastes identified as unstable will increase as munitions waste streams are evaluated specifically to determine suitability for an alternative technology. 40 Items can become unstable and potentially shock sensitive as the result of the depletion of stabilizers in the explosives or propellants caused by excessive age or the environment in which it was contained. In addition, items that are damaged can have unpredictable stability. EPA notes that facilities engaged in RDT&E produce explosive waste streams that vary widely and may be difficult to characterize due to changes in stability resulting from testing and evaluation. The testing and evaluation phases subject the explosive containing items to physical and thermal stressors to ascertain their stability and performance. These activities damage the items and increase the sensitivity which in turn, increases the handling risks. Therefore, many of these wastes are not amenable to pre-treatment technologies ( e.g., cutting, disassembly) which may be required when the NEW must be reduced to be treated in an alternative technology. In addition, some RDT&E explosive waste streams consist of novel chemical formulations and physical features that are intended to change the fundamental chemical and physical characteristics of the energetic material, which imparts uncertainty regarding how they will behave when treated in the confined conditions of an alternative technology. This also means that formulations with the same chemical composition may have different physical properties and may warrant different treatment technologies. However, this does not mean that RDT&E wastes cannot be treated using alternative technologies, nor does it mean that none of these wastes can be pre-treated using other methods, but the likelihood is reduced in comparison to the explosives contained in certain munitions or bulk explosives and propellants. According to alternative technology reviews submitted by two facilities that generate RDT&E waste, all of these wastes are currently treated by OB or OD, despite identification of potential alternatives. One facility stated that approximately 50% of its waste could be treated in a closed detonation unit. (Note: pre-treatment technologies were not evaluated so it is assumed that none are required or could not be used due to safety concerns and so 50% represents waste that can be directly place in a closed detonation unit). 41 Another facility stated that 54% of the waste could be treated by a closed detonation unit. 42 Both facilities provided reasons why an alternative technology would not be implemented, but the shared conclusion was that no one technology or combination of technologies could completely replace OB/OD, or that none stand out as a clear and attractive alternative to OB/OD. Based on EPA's proposed criteria, this is not an acceptable reason for not implementing identified alternatives. EPA's proposed criteria only requires that a technology be safe and available for the waste streams requiring treatment. Thus, if an alternative technology is identified for any of the facility's waste streams, then it must be implemented for those waste streams. EPA expects that in many cases, a facility would need to implement more than one technology. 41 Evaluation of Alternative Technologies to Open Burning and Open Detonation of Energetic Wastes by the Naval Surface Warfare Center, Dahlgren Division. Appendix 2-5, Supplementary Information for OB/OD Alternative Treatment Methods. 42 Updated OB/OD Alternatives at NAWS China Lake 2022, Goodman, B.T, Ph.D.; April 6, 2022. The potential for injury or loss of life or loss of equipment is always present when handling, storing, transporting, and treating waste explosives. In some respects, use of alternative technologies may result in no change in the potential for an accident when the wastes are stable, and the treatment processes are fully automated. In other respects, use of alternative technologies increases the potential for an accident, but it may continue to be within acceptable safety risk parameters, or it could increase beyond acceptable safety risk parameters. EPA believes that most stable waste explosives awaiting treatment have available and safe alternatives but realizes that there are exceptions when the stability is questionable or when munitions cannot be safely size-reduced. EPA also recognizes that the explosives specialists evaluate the safety related to the handling and treating waste explosives. That does not imply however, that if EPA or a regulatory authority questions a safety decision at any point in the evaluation process or final report, that the decision is being challenged. Rather, the information is needed to better understand and to build a record for the regulatory authority's decision. Available Similar to the safety criterion, this is an existing requirement that serves as the second criterion for allowing an exception for waste explosives to be treated by OB/OD. EPA is clarifying that availability remains an important criterion for determining when an alternative technology must be used and is also providing more context for what it means to be available in recognition that there are different stages of development with some technologies that have been proven and successfully used. EPA is proposing that a technology be considered available if it can be used on-site or off-site, rented, leased, or purchased from, or custom designed and constru [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-05088. Public record. Not legal advice.