# Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Redefinition of On-Site

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A95-27434

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** November 8, 1995
- **Citation:** 60 FR 56468

## Text

SUMMARY: In response to Section 107 of the Federal Facility Compliance
Act (FFCA) of 1992 which added a new subsection 3004(y) to the Resource
Conservation and Recovery Act (RCRA) (42 U.S.C. section 6924(y)), EPA
is today proposing a rule that identifies when conventional and
chemical military munitions become a hazardous waste under RCRA, and
that provides for the safe storage and transport of such waste. Today's
proposal also amends existing regulations regarding emergency responses
involving military munitions and other explosives. This amendment would
apply to responses by non-military or private personnel, as well as by
the military. The proposal also revises the definition of ``on-site,''
which applies to all generators of hazardous waste.

DATES: Written comments on these proposed rules will be accepted until
January 8, 1996.

ADDRESSES: Written comments (one original and two copies) should be
addressed to: EPA RCRA Docket #F-95-MMP-FFFFF, Mail Code 5305W, 401 M
Street SW, Washington, DC 20460. Comments also may be submitted
electronically by sending electronic mail (e-mail) through the Internet
system to: RCRA-D[email protected]. All electronic comments must be
submitted as an ascii file avoiding the use of special characters and
any form of encryption. The comments should be identified with the
above docket number.
The official action for this record will be kept in paper form.
Accordingly, EPA will convert all documents received electronically
into printed paper form as they are received and will place the paper
copies in the official record, which will also include all comments
submitted directly in writing. The official record is the paper record
kept in the RCRA Docket (see address above). (Comments submitted on
paper will not be transferred to electronic format. These comments may
be viewed only in the RCRA Docket as described here.)
Public comments and the supporting information used for this rule
are available for public inspection and copying in the RCRA Information
Center (RIC) located in room M2616 at the EPA address above. The RIC is
open from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding
federal holidays. To review docket materials, the public must make an
appointment by calling (202) 260-9327.
The RIC will be closed November 14-24, 1995 because it is
relocating to Arlington, Virginia. Between November 14 and 24, 1995,
special appointments can be made for viewing material in this docket by
calling the above number. Beginning November 27, 1995, call 703-603-
9230. After that date, the Docket will be physically located at:
Crystal Gateway, First Floor, 1235 Jefferson Davis Highway, Arlington,
Virginia. The mailing address remains the same as given above.

FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9 am and 6 pm
EST, toll-free, at 800-424-9346; 703-412-9810 from Government phones or
if in the Washington, DC local calling area; or 800-553-7672 for the
hearing impaired; or Ken Shuster, U.S. EPA (5303W), 401 M St. SW.,
Washington, DC 20460, (703) 308-8759.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Legal Authority
II. Background
A. Statutory Mandate
B. Issues Addressed in Proposal
C. Solid Waste for Regulatory Purposes vs. Solid Waste for
Statutory Purposes
III. Summary of Proposed Rule
IV. Section-by-Section Analysis
A. Definition of Military Munitions
B. Definition of ``Solid Waste'' as It Applies to Military
Munitions
1. Unused or Stockpiled Munitions
a. Status of Military Stockpile
b. Proposed Sec. 261.2(g)(1)(i)--Unused munitions that have
previously been disposed of
c. Proposed Sec. 261.2(g)(1)(ii)--Munitions removed from the
stockpile for the purposes of destruction
d. Proposed Sec. 261.2(g)(1)(iii)--Leaking or deteriorated
munitions
e. Proposed Sec. 261.2(g)(1)(iv)--Munitions determined by DOD to
be a solid waste
f. Rationale for EPA's Proposed Approach
2. Used or Fired Munitions
3. Munitions Used for Their Intended Purposes
a. Proposed Sec. 261.2(g)(3)(i)--Military training exercises
b. Proposed Sec. 261.2(g)(3)(ii)--Weapons testing
c. Proposed Sec. 261.2(g)(3)(iii)--Range clearance during
training or weapons testing
4. Discharged Military Munitions at Firing Ranges
5. Waste Materials Derived from Munitions Manufacture
C. Standards Applicable to Generators and Transporters
D. Storage of Military Munitions
E. Emergency Responses
F. Definition of ``On-Site''
G. Permit Modifications to Receive Off-Site Waste Munitions
V. Discussion of Major Alternatives
A. Stockpiled Munitions
1. Approach Based on Army Regulation 200-1
2. DOD Interim Guidance
3. Munitions Scheduled for Destruction by International Treaty
4. Alternatives Based on Condition of Munition
5. Regulation of the Demilitarization Process
B. Range Management
1. Active Ranges
2. Applicability of Range Cleanup Authorities
C. Alternative Organization (Separate CFR Part)
VI. State Authority
VII. Administrative Requirements/Compliance with Executive Order
A. Regulatory Impact Analysis Under Executive Order 12866
1. Cost Analysis
2. Benefits Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates
VIII. References/Docket

I. Legal Authority

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

II. Background

A. Statutory Mandate

Section 107 of the Federal Facility Compliance Act (FFCA) of 1992
amended the Resource Conservation and Recovery Act (RCRA) by adding a
new section 3004(y) that requires EPA to propose regulations, after
consulting with the Department of Defense (DOD) and appropriate State
officials, that identify when conventional and chemical military
munitions become hazardous waste under RCRA, and that provide for the
safe storage and transportation of such waste.
Over the years, the applicability of RCRA to military munitions has
been the subject of considerable controversy. The Department of Defense
has expressed concern that differing regulations or interpretations
from State to State substantially undermine its

[[Page 56469]]
ability to carry out its mission. DOD has particularly sought clarity
in defining RCRA's application to military munitions storage and
transport, the recycling or destruction of obsolete munitions, and
immediate responses to emergencies involving explosives.1 At the
same time, citizens groups have expressed concern that many military
activities involving munitions are insufficiently regulated. Congress
amended RCRA to include section 3004(y) in response to these concerns.

\1\ EPA and DOD have developed a considerable body of
interpretive guidance and memoranda addressing these issues. EPA's
most recent general discussion of these issues is in a June 23, 1994
letter from Michael Shapiro, Director of the EPA Office of Solid
Waste, to Patrick J. Meehan, Acting Assistant Deputy Under Secretary
of Defense for Compliance. This letter and other relevant guidance
are included in the docket to today's rulemaking.
---------------------------------------------------------------------------

Today's proposal responds to Congress's mandate in section 3004(y).
In developing the proposal, EPA has consulted extensively with DOD and
the States, as the statute requires. EPA has also met with and received
comments from a consortium of citizens groups with particular interest
in the environmental and human health impacts of military installations
around the United States. In addition, representatives of the waste
treatment industry have provided comments to EPA. Records of these
meetings and information provided to EPA are included in the docket to
today's rulemaking.

B. Issues Addressed in the Proposal

In developing today's proposal, EPA focused primarily on several
key issues that have arisen in the implementation of the RCRA program
at military installations, or that have been raised by DOD, States, or
citizens groups. These issues are:
1. When does an unused munition become a RCRA ``hazardous waste,''
potentially subject to RCRA permitting and technical management
standards? All parties agree that the destruction of unused munitions
is regulated under RCRA (if the munitions meet the definition of
``hazardous''). But at what point in the process do stockpiled
munitions slated for destruction first become subject to RCRA?
2. Should RCRA hazardous waste management standards apply to the
use of munitions in weapons testing or military training exercises?
Although EPA in the past has not regulated these activities under RCRA,
it has been argued that military munitions are ``discarded'' during
field exercises, and therefore should be subject to RCRA hazardous
waste management standards. It has also been argued that certain
activities associated with munitions training or testing--for example,
the detonation of unexploded ordnance at a firing range--properly fall
under RCRA jurisdiction.
3. How do RCRA hazardous waste regulations apply to emergencies
involving explosive materials, including military munitions? DOD has
expressed concern that current RCRA hazardous waste regulations may
complicate responses by emergency personnel to unexploded ordnance and
other emergencies.
4. In what way (if any) do RCRA requirements apply to unexploded
ordnance and environmental contamination at military ranges and impact
zones, especially ones that are closed?
5. Once it has been determined that a munition is a hazardous waste
for regulatory purposes, what storage and transportation standards are
needed to ensure protection of human health and the environment? DOD,
in particular, expressed concern that certain RCRA standards are
inconsistent with its internal regulations on munitions storage, and
that the RCRA transportation requirements (including the manifest) are
redundant with DOD controls.
Today's notice provides EPA's proposed resolution of these issues.
The notice also proposes a new definition of ``on-site,'' to reduce
unnecessary paperwork requirements for hazardous wastes transported
within large facilities, including military installations.

C. Solid Waste for Regulatory Purposes vs. Solid Waste for Statutory
Purposes

In addressing the issues above, EPA carefully reviewed the RCRA
statutory and regulatory definitions of ``solid'' and ``hazardous''
waste. To avoid confusion in today's proposal, EPA notes at the outset
that the terms ``solid waste'' and ``hazardous waste'' have different
meanings depending upon the context in which the terms appear. These
terms are defined in both the statute and in the regulations
implementing RCRA Subtitle C.
RCRA statutorily defines ``solid waste'' in section 1004, 42 U.S.C.
6903(27), in pertinent part, as follows:

The term ``solid waste'' means any garbage, refuse, sludge from
a waste treatment plant, water supply treatment plant, or air
pollution control facility and other discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting
from industrial, commercial, mining and agricultural operations, and
from community activities . . .

42 U.S.C. 6903(27). The term ``hazardous waste'' is defined in the
statute as those solid wastes that may ``(A) cause, or significantly
contribute to an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness; or (B) pose
substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed.'' 42 U.S.C. 6903(5).
The terms ``solid waste'' and ``hazardous waste'' are defined for
purposes of the regulatory program under Subtitle C of RCRA at 40 CFR
261.2 (solid waste) and 40 CFR 261.3 (hazardous waste). Materials
meeting these definitions are a subset of the materials meeting the
statutory definitions. EPA regulations at 40 CFR 261.1(b)(1) make clear
that the regulatory definition of ``solid waste'' applies only to
wastes that are also hazardous for purposes of the regulations
implementing subtitle C of RCRA. Accordingly, the statutory definition
of solid waste is broader in scope than the regulatory definitions of
the term. See also 40 CFR 261.1(b)(2).
In parts IV.A thru B.3 and B.5 of the preamble, EPA discusses the
circumstances under which unused munitions in the military stockpile
are considered to meet the definition of ``solid waste'' as defined in
the regulations implementing Subtitle C of RCRA. Therefore, in this
context the relevant definition of ``solid waste'' is the definition
contained in the Subtitle C regulations. Unused military munitions
meeting the regulatory definitions of ``solid waste'' could be
regulated as hazardous waste and thus subject to full Subtitle C
requirements.
In part IV. B.4. of the proposal EPA discusses the circumstances
under which discharged or fired munitions meet the statutory definition
of ``solid waste''. As explained below, these materials would not meet
the regulatory definition of ``solid waste'' and thus would not be
regulated as ``hazardous waste''. Nevertheless, these materials could
be ``solid waste'' as defined by the statute. Therefore, in this
context the relevant definition of ``solid waste'' is the statutory
definition. Discharged or fired munitions that meet the statutory
definition of ``solid waste'' are subject to RCRA's remedial statutory
authority.

III. Summary of Proposed Rule

Today's proposal addresses: (1) when military munitions become a
solid, and therefore potentially a hazardous waste, (2) what
transportation and storage requirements apply to military munitions
that become a hazardous

[[Page 56470]]
waste, (3) how RCRA hazardous waste regulations apply to immediate
responses to emergencies involving military munitions and other
explosives, (4) what RCRA requirements apply to fired munitions, and
(5) an amendment to the definition of ``on-site,'' as it applies to
hazardous waste generators.
On the issue of when a munition becomes a regulatory solid waste,
today's proposal provides that unused military munitions in the
military stockpile become solid waste when they are removed from
storage in the stockpile for the purpose of disposal, or for treatment
prior to disposal; when they are leaking or deteriorated to a point
where they cannot be used or recycled; or when DOD or authorized
Military Service personnel declare them to be a solid waste, whichever
comes first. The proposal would make clear that munitions disposed of
in the past, for example by burial at former military installations,
are solid waste. At the same time, the proposal explicitly provides
that use of munitions for their intended purpose (for example, in
training exercises, or in activities associated with training, such as
range clearance) does not constitute waste management regulated under
RCRA.
The proposal also discusses alternate approaches to the regulation
of unexploded ordnance and other munitions remaining at ranges after
the range has been closed. Under the approach proposed in today's
notice, these munitions would be considered statutory ``solid waste,''
potentially subject to RCRA cleanup authorities, until DOD develops
range cleanup standards, in consultation with EPA and with full
opportunity for public participation. Under today's proposal, DOD's
standards, once issued, would take precedence over RCRA.
The proposal would also codify EPA policy on immediate responses to
emergencies involving munitions and other explosives. Under the
proposal, immediate responses taken by trained personnel (whether
military, other governmental, or private) would not be subject to RCRA
permitting or other requirements. In addition, if emergency
transportation of the explosive were necessary, this could occur
without a RCRA manifest.
The proposal also includes new standards for military magazines or
bunkers used to store hazardous waste munitions. These standards are
designed to provide consistency between RCRA technical standards and
DOD standards for munitions storage. In addition, today's proposal
would exempt military munitions from RCRA manifest and other RCRA
transportation requirements, if they are being shipped to other DOD
facilities under DOD's munitions tracking system.
Finally, the proposal revises the definition of ``on-site,'' so
that hazardous waste generators may define on-site property to include
all contiguous property (regardless of whether or not it is split by a
road or right-of-way). This change will provide military installations
and other large facilities (such as universities or large industrial
complexes) greater flexibility in handling waste on site and will
eliminate redundant paperwork requirements (e.g., by eliminating the
manifest requirement).

IV. Section-by-Section Analysis

A. Definition of Military Munitions

Today's proposal includes a definition of ``military munitions''
(in Sec. 260.10). This definition, which establishes the scope of
today's rule, includes all types of ammunition products and their
components, including conventional and chemical munitions, produced by
or for the military for national defense and security. The definition
lists a number of component examples, including propellants,
explosives, pyrotechnics, and chemical and riot control agents; and
product examples, including rockets, bombs, mines, grenades, artillery,
and torpedoes. The definition excludes improvised explosive devices,
for example, home-made bombs (which are non-military) \2\ and nuclear
weapons, devices, and components thereof managed under the Department
of Energy's nuclear weapons program.

\2\ Improvised explosive devices, or IEDs, are defined as non-
standard explosive devices made from either military or non-military
materials by non-military personnel.
---------------------------------------------------------------------------

The proposed definition also clarifies that such military munitions
may be under the control of the Department of Energy (DOE), the U.S.
Coast Guard, the National Guard, or a private company producing the
munitions under contract to or as an agent for DOD, as well as the
Department of Defense.
EPA considered including in this rule non-nuclear components of
munitions managed by DOE under its nuclear weapons program. Upon
review, however, EPA has determined that section 107 of the FFCA does
not contemplate the inclusion of nuclear weapons or their components
within the scope of this rule. The statutory language and legislative
history of Sec. 107 demonstrates the intent of Congress that EPA
develop regulations that address conventional and chemical munitions.
No mention was made of nuclear weapons or their components.
Furthermore, EPA recognizes that DOE's practices and procedures for the
management of nuclear munitions under the Atomic Energy Act of 1954, 42
U.S.C. 2011 et seq., as well as the potential impacts on DOE
operations, are significantly different from those of DOD pertaining to
conventional and chemical munitions.
For these reasons, EPA has decided not to include nuclear weapons
components in today's proposal. Instead, the proposal addresses
conventional and chemical weapons, as contemplated by Sec. 107, and
specifically does not apply to nuclear weapons or the components
thereof managed under DOE's nuclear weapons program. Conventional or
chemical munitions that DOE produces or manages for the military,
however, would be subject to this proposed rule.

B. Definition of ``Solid Waste'' as It Applies to Military Munitions

RCRA section 3004(y) requires EPA to identify ``when military
munitions become hazardous waste for purposes'' of Subtitle C of RCRA.
In general, materials are considered to be ``hazardous waste,'' for
regulatory purposes, if: (l) the material is a ``solid waste,'' as
defined in 40 CFR 261.2, and (2) the material meets the definition of
``hazardous waste'' in 40 CFR 261.3. In today's proposal, EPA has
focused on the first point--when munitions become a solid waste--and
has not proposed to amend the definition of ``hazardous waste'' as it
applies to munitions.
EPA has taken this approach because the controversy over when
military munitions become regulated under RCRA Subtitle C hazardous
waste standards has centered on the question of when munitions become
``solid waste'' under Sec. 261.2, rather than on whether they are
``hazardous waste'' under Sec. 261.3. Many military munitions meet the
RCRA ``ignitability'' or ``reactivity'' characteristics, for example,
because they are explosive (see 40 CFR 261.21 and 261.23
respectively).3 In addition, other munitions are hazardous under
the ``toxicity'' characteristic, because they contain high levels of
lead or other toxic metals (see 40 CFR 261.24). EPA believes that the
current definition of ``hazardous waste'' in 40 CFR 261.3 is adequate
as it applies to

[[Page 56471]]
waste munitions, and therefore proposes no change to 40 CFR 261.3.

\3\ Some munitions are not ``reactive.'' For example, in a
memorandum of June 2, l988, EPA stated that small arms ball
ammunition of up to and including 0.50 calibers are not reactive
within the meaning of RCRA. The Department of the Army has codified
this position in Army Regulation 200-l, section 6-7(k).
---------------------------------------------------------------------------

Under 40 CFR 261.2 of the RCRA regulations, ``solid waste'' is
defined as ``discarded material.'' Section 261.2 (a) through (f)
provides a detailed regulatory definition of this term. In particular,
Sec. 261.2(b) defines ``discarded material'' as materials that are
abandoned by being disposed of; burned or incinerated; or accumulated,
stored, or treated (but not recycled) before or in lieu of being
abandoned. In today's notice, EPA proposes to add a new Sec. 261.2(g)
specifying how the regulatory term ``discarded material'' applies to
unused military munitions. This proposed provision would address the
regulatory definition of solid waste in the context of three specific
categories of munitions: (1) unused munitions in the military
stockpile, (2) used or fired munitions, and (3) munitions being used
for their intended purpose.
Additionally, EPA proposes in new Sec. 261.2(g)(4) to characterize
munitions at closed or transferred ranges as statutory solid waste
under RCRA section 1004(27). However, once DOD promulgated range
cleanup regulations under its own standards, this section would be
superseded.
1. Unused or Stockpiled Munitions
a. Status of Military Stockpile. According to DOD, the military
services currently have 5.6 million tons of conventional munitions
stored in magazines at installations within the United States. Of these
munitions, more than 5.1 million tons (or more than 90%) are in an
``active use'' inventory, and therefore are available for use in
training or war. At the same time, however, the Services have a
significant volume of munitions in ``demilitarization'' accounts (for
example, the Army's Resource Recovery and Disposition Account);
munitions in these accounts are generally considered to be excess and
unneeded, ``unserviceable'' (and needing further assessment or repair),
or obsolete.4

\4\ The Services also assign ``condition codes'' to ammunition.
For example, the Army's Ammunition Surveillance Procedures (November
l990) provides designations for ammunition such as Condition Code H
(``Material that has been determined to be unserviceable and does
not meet repair criteria'').
---------------------------------------------------------------------------

According to DOD, approximately 440,000 tons of munitions are
stored in demilitarization accounts; under DOD procedures, these
materials first undergo evaluation to determine whether they can be
returned to service, repaired, sold, or recycled. If these options are
unavailable, the munition is then scheduled for destruction. DOD
currently considers that its stockpile includes 48,000 tons of
munitions scheduled for destruction.
EPA and DOD generally agree that munitions stored in the active use
military stockpile do not meet the definition of ``discarded material''
or ``solid waste'' in 40 CFR 261.2, and therefore are not regulated
under RCRA subtitle C. There is also general agreement that obsolete or
excess munitions meet the regulatory definition of solid waste at the
point when they are received for destruction or disposal--for example,
at open burning/open detonation units or incinerators. Despite
agreement on these points, however, there has been considerable
discussion over whether and how RCRA standards apply to munitions
slated for destruction before they are received at a treatment or
disposal site.
This discussion has centered primarily on defining what event or
munition status indicates a DOD ``intent to destroy.'' EPA has had
comparable discussions with industry over when commercial products
become a solid waste. The Part 261 regulations regarding commercial
products in storage rely largely on the ``intent'' of the owner to
discard; over the years, EPA has sought to establish simple,
consistent, and enforceable principles regarding the point at which
commercial products are intended to be ``discarded''--notably these are
(1) when the products are removed from storage for disposal, or
treatment prior to disposal, (2) when the owner declares them to be
hazardous waste, and (3) when they are deteriorated or damaged (e.g.,
leaking) to the point they cannot be used, or reprocessed for
beneficial use. In today's proposal EPA has sought to apply these
general principles to military munitions.
In proposed Sec. 261.2(g)(1)(i) through (iv), EPA clarifies this
issue by identifying the specific circumstances under which an unused
or stockpiled munition would be considered to be solid waste for
regulatory purposes.
b. Proposed Sec. 261.2(g)(1)(i)--Munitions that have previously
been disposed of. Under proposed Sec. 261.2(g)(1)(i), a munition
becomes discarded, and therefore a solid waste when it is ``abandoned
by being disposed of, burned, or incinerated, or treated prior to
disposal.'' Thus, open burning/ open detonation or incineration of
unused munitions (except when done during an emergency response or
during training in use of a product) is regulated under the RCRA
subtitle C standards for hazardous waste, including the 40 CFR Part 270
permit requirements (assuming the waste munitions meet the Sec. 261.3
definition of ``hazardous waste''). Similarly, unused munitions that
were buried or landfilled in the past are solid waste, and, if
hazardous, they would become subject to applicable subtitle C
regulation when unearthed and further managed. EPA emphasizes that this
proposed section would not bring use of military munitions for their
intended purposes--e.g., the firing of military rounds--within the
scope of subtitle C. The use of a product (in this case a military
munition), in EPA's view, is not a waste management activity and does
not constitute abandonment for the purposes of proposed
Sec. 261.2(g)(1). (``Discarded material'' in the context of munitions
used at military firing ranges is addressed in proposed
Sec. 261.2(g)(4), which is discussed below.)
c. Proposed Sec. 261.2(g)(1)(ii)--Munitions removed from the
stockpile for the purposes of disposal/destruction. Proposed
Sec. 261.2(g)(1)(ii) would specify that a military munition becomes a
solid waste for regulatory purposes when it is removed from storage in
a military magazine or other storage area \5\ for the purposes of
destruction, disposal, or treatment prior to disposal.

\5\ The term ``military magazine or other storage area'' refers
to all types of military munitions storage units, including outdoor
or open storage areas, sheds, bunkers, and earth-covered and above-
ground magazines allowed under the DOD Explosives Safety Board
(DDESB) standards (DOD 6055.9-STD), which are mandatory for use by
all DOD components.
---------------------------------------------------------------------------

Stockpiled munitions, in EPA's view, are unused ``products''
comparable to unused commercial products stored by manufacturers or
their customers. Under RCRA, unused products do not become ``waste''
until they become ``discarded material,'' that is, until an intent to
discard the material can be demonstrated. Even if a commercial
product's shelf life has expired, or it can no longer be used for its
intended purpose (for example, because of physical deterioration), it
may be reprocessed or used for other purposes. Thus, it would not
necessarily be considered ``discarded material'' or solid waste.
Stockpiled military munitions are in a comparable situation, and
the classification of a munition in one of the various DOD
``demilitarization'' accounts does not, in EPA's view, constitute a
decision to discard the material because, pursuant to DOD's practices,
such a classification does not necessarily evidence an intent to
discard. Ammunition classified as ``unserviceable,'' for example, may
be returned to service, after further review, or in some cases after
reprocessing.

[[Page 56472]]
Munitions in the demilitarization accounts (such as the Army's Resource
Recovery and Disposition Account) may also be sold for non-military
purposes, or to nations that still maintain older weapons systems. Even
munitions scheduled for disposal may still have a deterrent purpose and
may be called back into service in cases of emergency. Therefore, in
EPA's view, inclusion of a munition in a ``demilitarization'' account
or a military determination that a munition is ``unusable'' for its
intended purpose does not constitute a decision to dispose of it.
For these reasons, today's proposal makes it clear that unused
munitions stored in military stockpiles are not considered ``solid
waste'' subject to subtitle C (except as provided in Sec. 261.2(g)(1)
(iii) and (iv) discussed below). Instead, EPA has sought to establish a
simple, consistent, and enforceable point where a munition would be
considered ``discarded.'' In EPA's view, the most appropriate point for
military munitions (and the point that is most consistent with the
regulation of commercial/industrial products) is when the material is
finally removed from storage for the purpose of disposal or treatment
prior to disposal. In practical terms, this provision would mean that
storage of stockpiled munitions would, for the most part, not be
subject to RCRA regulation (with exceptions described below); however,
once a munition was removed from a magazine for the purpose of
destruction or disposal it would become solid waste potentially
regulated under subtitle C of RCRA.
EPA emphasizes that this provision would trigger RCRA coverage only
where a decision to destroy the munition had clearly been made. In many
cases, munitions classified as ``unserviceable'' are removed from
storage and sent to central arsenals for evaluation to determine
whether they are in fact unusable, whether they can be sold for use,
whether they can be recycled or processed for other uses, or whether
they should be disposed of. In these cases, the munition is not being
shipped for the purposes of destruction or disposal, but rather for
evaluation. The munition would be handled as a waste only if no further
evaluation would take place and the decision to destroy had already
been made.\6\ Similarly, a munition may be removed from storage for the
purpose of recycling or materials recovery without triggering RCRA.

\6\ EPA has taken a similar position in the case of
pharmaceuticals returned to the manufacturer. See letter from Sylvia
K. Lowrance, Director, EPA Office of Solid Waste, to Mark J. Schulz,
Pharmaceutical Services, Inc., Browning-Ferris Industries, May 16,
1991.
---------------------------------------------------------------------------

EPA recognizes that it may not always be easy to determine whether
a decision to destroy the material has been made; however, it believes
that the status of a munition removed from storage will generally be
clear. In some cases, a decision to destroy might be evidenced by a
specific order or document. In other cases, the intent to destroy the
munition would be obvious even in the absence of such an order. For
example, a munition sent to a commercial, non-military hazardous waste
facility is presumably a waste (unless the facility is also a
commercial dismantling/reclamation facility). Similarly, if a rocket
undergoing demilitarization is disassembled, and the propellant shipped
off-site to an incinerator at another installation, the intent to
destroy the propellant would be clear. In both cases, the point of
generation of the waste would be when it was removed from storage. EPA
emphasizes, however, that the rocket disassembly process itself is not
a form of RCRA ``treatment,'' and only the propellant that is
incinerated would be a solid waste. More generally, when a munition is
disassembled, the removal of a component from the munition does not
demonstrate or suggest an intent to discard that component. These
activities are therefore not considered waste management under RCRA
(unless the material is already classified as a waste, and the
disassembly is carried out to prepare for waste disposal.)
To summarize, the disassembly of a munition and recovery of
explosives or propellants and other components for reuse does not
constitute a waste management activity. In fact, these operations
constitute a large part of DOD's Resource Recovery and Recycling
Program, and EPA strongly supports and encourages this program. EPA
views recycling of unused military munitions as being directly
analogous to the reclamation of commercial chemical products (see 40
CFR 261.2(c) and (e) and 261.33). Thus, the position EPA is taking in
today's rule on military munitions recycling or materials recovery
operations is consistent with the position it has taken with regard to
the management of commercial chemical products.
Examples of munitions recycling activities performed by DOD that
would not be regulated under RCRA include the following:
(1) Recovery of explosive filler, together with scrap metal sale.
Explosive filler material may be removed from munitions by using a
heated medium, such as steam, hot water, or air. Further processing may
be necessary if the explosive material is contaminated or the end use
requires a specific form of explosive. The filler material is then used
or reformulated for military or commercial explosives, and the inert
metal parts may be reused as is or sold for scrap value.
(2) Reuse of Hazard Class (HC) 1.3 large rocket motor propellent,
together with casing reuse or scrap metal sale. The HC 1.3 propellant
may be removed from the rocket motor case with a high pressure water
jet. The washed-out material and liquor is then processed to remove
ammonium perchlorate. The ammonium perchlorate is then crystallized and
reused as an ingredient in a large rocket motor propellant formulation,
and the motor casing is either used or sold for scrap value.
(3) Reuse of HC 1.1 large rocket motor propellant, together with
casing reuse or scrap metal sale. The HC 1.1 propellant is removed from
the rocket motor as propellant chips through a dry machining process.
These chips are then mixed with other ingredients to produce commercial
sector blasting charges for mining or quarrying. The motor casing is,
again, either reused or sold for scrap metal.
(4) Reuse of red phosphorus composition. The red phosphorus
composition is removed from unserviceable L8A1 smoke grenades for
reloading into the new L8A3 grenades.
(5) White phosphorus to phosphoric acid conversion. This process
converts white phosphorus to saleable phosphoric acid by integrating an
industrial phosphoric acid conversion process to a modified furnace.
The examples of ways in which military munitions may be reused for
military and commercial applications, while specific, apply not only to
the identified munitions but illustrate how RCRA requirements apply to
munitions of similar types. The examples, however, do not specifically
address one type of recycling identified by DOD: that is, the
processing of an unused explosive to allow its use as fertilizer. In
this case, the explosive, arguably, is being applied to the land in
lieu of its original intended use and therefore--by analogy to
commercial chemical products--its use as a fertilizer would potentially
be regulated as waste management (see 40 CFR 261.33). EPA solicits
comment on whether this type of recycling is appropriate for military
explosives and therefore whether it should be allowed under today's
rule.
Of course, treatment or disposal of residual materials generated
during the disassembly or processing of unused munitions is potentially
subject to

[[Page 56473]]
RCRA regulation. In example number 2 above, ingredients remaining after
the crystallization of ammonium perchlorate might be incinerated. EPA
would consider this incineration to constitute waste management and the
materials incinerated to be a solid waste.
Proposed Sec. 261.2(g)(5) in today's rule clarifies these points.
d. Proposed Sec. 261.2(g)(1)(iii)--Leaking or deteriorated
munitions.
Proposed Sec. 261.2(g)(1)(ii), discussed above, would define the
most common circumstances under which a stockpiled military munition
would become a solid waste--that is, when a decision has been made to
dispose of it and it is removed from storage for transportation to a
disposal site. EPA, however, recognizes (and States and citizens groups
have pointed out) that under certain circumstances military munitions
in storage may deteriorate to a point where they are no longer
``products'' in any meaningful sense and indeed may present an
environmental threat. To address these circumstances, proposed
Sec. 261.2(g)(1)(iii) would define a munition as a solid waste if it is
``deteriorated or damaged (e.g., as a result of leaks or broken seals)
to the point that it cannot be put into serviceable condition, and
cannot reasonably be recycled or used for other purposes.'' For
example, leaking chemical munitions are typically overpacked and placed
in separate storage. Further, the stabilizers and chemicals involved
have often deteriorated, and these chemicals have no reclamation
potential. In EPA's view, these munitions have lost any reasonably
possible future uses. Therefore, they should be defined as solid waste,
and if hazardous, managed accordingly.
EPA recognizes that there is no specific analogous provision for
deteriorated or damaged stockpiled commercial products. EPA believes,
however, that commercial products in similar situations without any
reasonable future uses or recycling potential would qualify as solid
waste under existing regulations. Furthermore, EPA shares commenters'
concerns that, when a munition presents a threat because of leakage or
physical deterioration and when there is no reasonable possibility of
productive use of the material, it should be treated or destroyed as
soon as feasible.
e. Proposed Sec. 261.2(g)(1)(iv)--Munitions determined by DOD to be
a solid waste. Finally, proposed Sec. 261.2(g)(1)(iv) would make it
clear that the military Services or the Department of Defense may
identify a stockpiled military munition as a RCRA ``solid waste.'' In
this case, the munition (if ``hazardous'') would be subject to
hazardous waste regulations. For example, the Department of Defense has
previously determined that M55 rockets containing chemical agents are
hazardous waste. DOD made this decision because the rockets' delivery
system no longer exists, and because DOD decided, for operational
reasons, that the rockets would not be used in military operations and
that they would not be sold or reclaimed. These rockets are now being
regulated as hazardous waste under RCRA interim status or permit
requirements. Today's proposal would not affect the waste status of
these materials, or of materials DOD in the future classifies as solid
waste.
EPA emphasizes that proposed Sec. 261.2(g)(1)(iv) requires a
specific declaration by an authorized military official that a munition
is a solid waste. As explained earlier, a decision under DOD's
classification system that a munition is ``unserviceable,'' or the
transfer of a munition into a ``demilitarization'' account would not
constitute a decision that a munition is a solid waste.
f. Rationale for EPA's Proposed Approach. EPA's proposed approach
is based primarily on the recognition that stockpiled munitions are
``products,'' generally outside the scope of RCRA; that Congress
intended for EPA to develop a ``fair and coherent'' approach regarding
RCRA's application to munitions; that DOD has in place extensive
storage standards that, in providing for safety, are also protective of
human health and the environment; and that the military Services'
safety record in storing munitions has been good. EPA further believes
that there is no compelling environmental or legal reason to develop an
intent-based test for defining when munitions become hazardous waste.
Indeed, to do so would significantly increase the regulatory burden not
only on DOD, but also on regulators, and it would certainly complicate
DOD's management of the military stockpile. These reasons are discussed
in more detail below.
In the first place, the proposed approach would be simple,
straightforward, and enforceable. Munitions while stored in the
stockpile would generally be excluded from RCRA regulation. Alternative
approaches that would divide munitions in the military stockpile into
``waste'' and ``non-waste'' munitions (based on one or another set of
intent-based criteria) would be likely to provide little certainty, and
would be difficult to implement in the field. EPA is particularly
concerned about approaches that would lend themselves to site-specific
disagreements over whether a particular stockpile munition is or is not
a hazardous waste. Congress charged EPA with developing a ``fair and
coherent approach to identifying when military munitions become a
hazardous waste,'' and expressed the opinion that, without such
regulation, RCRA jurisdiction over munitions ``will likely be left to
the courts.'' (See H.R. Conference Report No. 886, 102d Cong., 2d Sess.
29 (1992). See also Cong. Rec. H9137 (daily ed. September 23, 1992),
Floor statement of Rep. Ritter). In light of this directive, EPA has
sought to draw as clear and universal a line as possible in this
proposal, and to avoid definitions that are likely to lead to debate in
their application, or to require specialized military expertise to
interpret. EPA's goal has been to define a consistent national
standard, which would eliminate the need for complicated site-specific
judgments that may have little if any relevance to protection of human
health and the environment.
Today's proposal on military munitions is also consistent with
EPA's approach under RCRA to other products. To be sure, the proposal
does not precisely parallel EPA's approach to commercial products, but
the basic approach is the same; in both cases, unused products are
generally excluded from RCRA jurisdiction. The only substantive
differences between the proposal and the current definition of solid
waste, as it applies to ``commercial'' products, are that: (1) RCRA
jurisdiction for military munitions would generally be triggered by the
actual removal of a munition from storage for disposal or treatment,
rather than by evidence of an ``intent'' to discard the material before
its removal from storage, and (2) leaking munitions that could not be
returned to use would be explicitly defined as solid waste. EPA
acknowledges these minor differences, but believes they are appropriate
in the case of military munitions, given Congress's mandate that EPA
develop specific regulations for military munitions that reflect the
special circumstances surrounding these materials.
Moreover, EPA has chosen the proposed approach because it involves
minimum interference with the military's established system for
managing stockpiled munitions, and it would not conflict with the
Services' logistical needs or constraints. Munitions in both the active
and demilitarization accounts are managed

[[Page 56474]]
under the same storage and transportation standards, and they are often
stored together in the same magazines. The threat from a specific
munition does not change when it is determined to be ``unserviceable'';
when it is reclassified into a demilitarization account; or when it is
scheduled for treatment or disposal. Today's proposal recognizes the
efficiency of managing the military stockpile within the current
system. Under the proposal, the demilitarization process would remain
governed by logistical, safety, and strategic considerations; munitions
slated for destruction or treatment could be removed from magazines and
shipped to waste treatment or disposal facilities according to an
orderly process, rather than by regulatory schedules.
Finally, EPA's proposal reflects the Agency's preliminary judgment
that RCRA regulation of stockpiles of largely military ``products''
(only a very small portion of the stockpile would be ``waste'') would
not significantly increase protection of human health and the
environment. The military's storage standards and practices for
munitions generally provide protection that is comparable to or better
than RCRA regulation would provide. The storage of military munitions
is regulated under standards overseen by the Department of Defense
Explosives Safety Board (DDESB), an organization independent of the
Services within DOD that was established by Congress and reports to the
Secretary of Defense. EPA and one interested party, representing
certain members of the waste treatment industry, have reviewed the
DDESB standards in detail. Both concluded that the technical design and
operating standards of the DDESB meet or exceed RCRA standards in
virtually all respects. There were gaps in certain procedural
requirements, and in areas unrelated to risks from explosive
materials--e.g., in requirements to coordinate with local authorities
or in closure requirements. At this point, however, EPA is not
convinced that RCRA standards would substantially increase
protection.7 (Both EPA's and the commenter's review is available
in the docket of today's rulemaking.)

\7\ Strategic Environmental Services, Inc., in comments to EPA,
cited three particular areas where it concluded that DDESB standards
were less stringent than RCRA's: preparedness requirement with the
local community, closure requirements, and inspection frequency. EPA
believes that the differences in approach between the standards in
these areas is of limited significance. First, under RCRA
preparedness requirements, a facility must attempt to make
arrangements with local police, fire departments, emergency response
teams, and hospitals to allow them better to respond to emergencies.
If these local institutions do not respond to overtures from the
facility, however, the facility has satisfied its obligation.
Military installations already have extensive contingency plans for
munitions emergencies, and responsibility for responding to these
emergencies generally falls on military rather than local personnel.
Therefore, coordination with local response authorities is less
important than it is with civilian facilities. Furthermore, it is
unclear what value would be added by preparedness plans that applied
only to that part of an installation's munition stockpile that was
classified as waste, and not to other munitions on the
installation--especially given that the active stockpile would
typically dwarf ``waste'' munitions in quantity. The situation is
different for stockpiled chemical munitions--partly because of the
greater possibility that an emergency would have off-site effect,
and partly because of heightened public concern. However, Congress
has already required the Secretary of Defense to establish a
chemical weapons stockpile safety contingency plan (National Defense
Authorization Act for Fiscal Year (FY) 92) and the Secretary of the
Army to establish citizens' commissions for states with stockpile
sites (National Defense Authorization Act for FY93). Second, as to
closure requirements, it is unclear how typical munitions bunkers
would lead to contamination problems. In any case, however, storage
magazines are subject to the decontamination and remediation
requirements of CERCLA 120(h)(3) when the property is transferred,
and DOD is required to clean up environmental contamination under
the Defense Environmental Restoration Act. Residual contamination is
also subject to other cleanup authorities, including RCRA section
7003. Finally, EPA sees no reason why Service inspection procedures
for the active stockpile are not adequate for munitions slated for
disposal.
---------------------------------------------------------------------------

In addition, the military's safety record for the entire stockpile
has been good. According to DOD, there have been 27 ``incidents''
involving stockpiled munitions over the last twenty years, with only l3
of these involving structural damage to a bunker or storage unit. This
represents a very low accident rate, considering the enormous quantity
of munitions stored and handled (currently 5.7 million tons of
conventional munitions in 28,122 storage units) and the high inherent
hazard of the material. EPA questions whether RCRA regulation would
improve this safety record. (Indeed, RCRA regulation of ``waste''
portions of the stockpile might increase risk, by leading to increased
movement of munitions.)
2. Munitions That Have Been Used/Fired That Are Subsequently Discarded
Proposed Sec. 261.2(g)(2) addresses munitions that have been used
or fired and then are subsequently recycled or disposed of. This
section clarifies that RCRA management standards apply to the recycling
or subsequent disposal (assuming the material is hazardous).
Specifically, Sec. 261.2(g)(2) states that munitions that have been
used or fired are solid waste when they meet the definition of
discarded material in Sec. 261.2(a)(2), except as provided in
Sec. 261.2(g)(3). In other words, a used or fired munition is
considered a solid waste if it is abandoned or recycled, or if it is
inherently waste-like (i.e., it meets the definition of ``discarded''
in Sec. 261.2(a)(2)). But the proposed language explicitly states that
this definition does not include munitions used for their intended
purpose (i.e., munitions covered under Sec. 261.2(g)(3)). As explained
below, munitions used for their intended purpose are products not
subject to RCRA regulation. Under this approach, munitions that have
been fired and can no longer be reused would be potentially subject to
Subtitle C regulation if removed from their landing spot and then
transported off-range and stored, reclaimed, treated, or disposed of
(assuming they are ``hazardous''). For example, former installations no
longer under military control (i.e., Formerly Used Defense Sites or
FUDS) often contain unexploded ordnance or other hazardous material.
Used or fired munitions removed from their landing spot and transported
off-site would have to be handled under RCRA subtitle C (assuming they
are ``hazardous''). Similarly, used or fired munitions resulting from
military research or training exercises, when removed from firing
ranges and sent off-range for destruction would be considered solid
waste. (As discussed below, use of a product for its intended purpose
is not considered abandonment; Sec. 261.2(g)(3) specifies certain
activities that fall within the intended use of military munitions.)
3. Munitions Used for Their Intended Purposes
Under RCRA, the use of products for their intended purpose does not
constitute waste management and is not subject to regulation. For
example, RCRA does not regulate the use of pesticides by farmers, even
though pesticides are discharged to the environment during use (see 40
CFR 262.10(d) and 262.70). By the same logic, RCRA does not regulate
the use of dynamite or other explosives during construction. Similarly,
EPA has consistently held that the use of munitions (military or
otherwise) for their intended purpose does not constitute waste
disposal, and does not require RCRA permits. Proposed Sec. 261.2(g)(3)
(i) through (iii) clarifies this point and provides specific examples
of military activities that are excluded from RCRA regulation.
a. Proposed Sec. 261.2(g)(3)(i)--Military training exercises.
Proposed Sec. 261.2(g)(3)(i) clarifies that the use of munitions in the
training of troops and explosive ordnance disposal (EOD) personnel is
not regulated under RCRA.

[[Page 56475]]
This is because such training constitutes the normal use of a product,
rather than waste disposal.
The proposed language also makes it clear that training includes
training troops in the destruction of excess propellant and other
munitions, when that destruction is integral to the product's use.
Propellant used for artillery and mortar rounds comes in packaged
allotments that vary by the type of weapon, round, and propellant. Each
allotment is made up of individual increments to allow troops to vary
the distance a shell is fired--the more increments used, the farther
the shell is fired. The Services generally package the allotments for
wartime use, that allow maximum firing capability. During firing
exercises (whether for training or during wartime), the full allotment
is often not needed. In these circumstances, military procedures for
safety reasons require that unused increments of propellant be burned.
(In wartime, procedures specify that the excess propellant be burned at
the closest safe point.) To ensure that troops can safely destroy
propellant during wartime, according to DOD, military training
exercises involving artillery and mortar rounds typically include the
burning of excess propellant.
In EPA's view, the training of troops in the wartime use of
munitions is a legitimate use that lies outside the scope of RCRA; the
Agency has no reason to question DOD's position that training troops in
the safe destruction of excess propellant constitutes legitimate
training. Indeed, such training exercises typically follow detailed
protocols for training troops in handling and burning of excess
propellants. EPA in the past has concluded that training in the
destruction of excess propellant is not subject to RCRA regulations,
and is proposing in today's rule to codify this interpretation.
Critics of DOD have expressed concern over the burning of excess
propellant, pointing out that the amount of excess propellant destroyed
may equal or exceed the propellant actually used in firing the weapons.
Concerns of the public have particularly focused on air emissions,
although the burning of propellant directly on the ground can lead to
soil (and possibly groundwater) contamination. For this reason, the
Services often conduct the burning in lined trenches. (In some cases,
this precaution has been required by state regulators.) In other cases,
local opposition to burning of excess propellant has led individual
installations to abandon the practice (and in at least one case to
abandon training altogether), or reduce the number of increments used.
Some states and citizens groups have also argued that such burning
could lead to sham training, when the primary purpose is really waste
disposal. In enforcing today's proposal, EPA might look at whether
propellant burning during a specific exercise was part of legitimate
training--for example, that troops were in fact being trained and that
the training was done in accordance with a specific training manual or
training procedures. However, if these tests were met, EPA would
consider the destruction of excess propellant to be normal use of
munitions in a training exercise and not regulated under RCRA. In
response to the concerns over sham training, DOD has suggested the
existence and use of training manuals, and appropriate documentation of
training activities should be accepted as evidence of training. EPA
agrees that, should activities in a specific training exercise be
challenged, such procedures and documentation would provide evidence
that the activity did not involve waste disposal.
More generally, EPA appreciates the concerns of critics of DOD on
this issue, but it tentatively accepts DOD's argument that the practice
is necessary for effective training. At the same time, however, EPA
solicits comments on this issue, in particular whether it is
appropriate or necessary, under RCRA, to impose specific restrictions
on burning of excess propellant, and if so what those restrictions
should be.
b. Proposed Sec. 261.2(g)(3)(ii)--Weapons testing. Today's proposal
also clarifies that munitions used in weapons research, development,
testing, and evaluation programs are not regulated under RCRA. Testing
munitions, or using munitions to test a weapon system, to determine
their performance capabilities clearly falls within the definition of
use of a material/product for its intended purposes. EPA also considers
removal of a used or fired munition from a testing or training firing
range for further testing and evaluation to be within the definition of
use of a material for its intended purpose.
c. Proposed Sec. 261.2(g)(3)(iii)--Range clearance operations as a
result of training or weapons testing. The military services often
conduct range clearance exercises as a result of weapons testing or
training at firing ranges. During these exercises, military specialists
sweep ranges for debris and unexploded ordnance, which may be destroyed
on-site or shipped off-range for treatment. EPA considers range
management to be a necessary part of the safe use of munitions for
their intended purpose; thus the range clearance activity is an
intrinsic part of the training or testing exercise. Furthermore, from
an environmental perspective, it makes no difference whether ordnance
explodes on impact or is subsequently detonated by an EOD specialist.
Therefore, today's proposal would exclude range clearance exercises
from RCRA subtitle C regulation. As mentioned earlier, however, when
shipped off-range for destruction (but not for further evaluation) the
debris or UXO is a solid waste, and if a hazardous waste, potentially
subject to the RCRA subtitle C requirements.
4. Discharged Military Munitions at Firing Ranges
In today's proposal, as well as in previous statements, EPA has
taken the position that the discharge of a weapon does not constitute
``waste management'' for the purposes of RCRA. This position is
reflected in proposed Sec. 261.2(g)(3), discussed above, which excludes
munitions used for their intended purposes from the definition of solid
waste. At the same time, however, this proposal provides that spent
munitions left in the environment may at some point become
``discarded,'' in a RCRA statutory sense, and therefore may be
potentially subject to various RCRA remedial statutory authorities. The
most important of these authorities are: (1) RCRA section 7003, which
authorizes EPA to require remedial action in cases in which solid
wastes may present an imminent and substantial endangerment; (2) RCRA
sections 3004(u) and (v), which require corrective action for releases
of hazardous waste or constituents from any solid waste management unit
at treatment, storage, or disposal facilities seeking a RCRA hazardous
waste permit, and (3) RCRA section 3008(h), which allows EPA to require
corrective action at interim status facilities.
Proposed Sec. 261.2(g)(4) would specify how these authorities would
apply to discharged munitions found at military firing ranges and
impact areas. Proposed Sec. 261.2(g)(4)(i) states that munitions left
at closed ranges, or at ranges transferred out of military control, are
discarded material. ``Closed'' ranges are ranges taken out of service
by the military as ranges and put to new uses incompatible with range
activities--e.g., as storage or warehouse areas. However, an
``inactive'' range--i.e., a range that is not currently being used, but
that is still considered by the military to be a potential range area
or that simply has not been put to any new use

[[Page 56476]]
incompatible with range activities--would not be considered ``closed.''
In the case of a closed range, the site is no longer being used as
a range and it has been put to a new use incompatible with range
activities. Under the proposal, any remaining munitions and debris that
are left in place would be considered discarded and therefore such
munitions and debris would be a ``solid waste'' according to the RCRA
section 1004(27) definition. In the case of transferred ranges, the
military no longer has control over the site and therefore the view
taken by EPA in the proposal is that any remaining munitions and debris
would have in effect been ``discarded.'' This is not to say that the
transfer of the property would constitute the act of discarding. Under
this approach, the property transfer would simply affirm that the
remaining materials on the range could be considered to have been
discarded.
This approach to closed and transferred ranges would not be
unprecedented. There are a number of scenarios under which hazardous
wastes may be found in the environment, but were not put there through
an act or circumstance that was a violation of RCRA or that otherwise
subjects those wastes in place to subtitle C permitting or other
requirements. A similar example of materials that may be classified as
statutory ``solid waste'' under RCRA, but which are not automatically
subject to RCRA subtitle C permitting or in-place waste management
requirements, are wastes that had been disposed of before the effective
date of RCRA. These materials would also potentially be subject to RCRA
remedial authorities such as sections 7003, 3004(u) and (v), and
3008(h), or to CERCLA remedial authorities.
Today's proposal, however, contemplates that RCRA regulation of
cleanups at closed and transferred ranges would be temporary. The
proposal would further provide that, if DOD promulgates, pursuant to
DOD's own statutory authorities, rules that allow for public
involvement in cleanups of these ranges and that are fully protective
of human health and the environment, then these DOD regulations would
supersede RCRA regulations. The DOD regulations, rather than RCRA,
would then govern range cleanups. EPA would issue a notice at the time
DOD's regulations were issued, announcing that DOD cleanup regulations
took precedence and that munitions at closed or transferred ranges are
not to be considered RCRA statutory solid waste.
This ``sunset'' provision reflects EPA's conclusion that the legal
arguments supporting the characterization of munitions on closed or
transferred ranges as ``solid waste,'' and the legal arguments opposing
such a characterization are finely balanced, with the result that EPA
has the discretion to select either interpretation pursuant to section
3004(y). The choice of whether to define such munitions as ``solid
waste,'' then, rests with EPA, and the proposal reflects EPA's views of
how human health and the environment can best be protected, given the
special hazards posed by military munitions.
In fact, the applicability of RCRA corrective action authorities to
ranges has long been subject to dispute. The Department of the Army's
Regulation 200-1, Environmental Protection and Enhancement, explicitly
states that RCRA sections 3004(u) and (v) do not apply to military
ranges (AR-200-1, section 6-7(j), April 23, 1990). In its proposed
subpart S corrective action regulations, EPA agreed, suggesting that
military firing ranges and impact areas ``should not be considered
solid waste management units,'' and therefore sections 3004(u) and (v)
would not apply (55 FR 30809, July 27, 1990). On the other hand,
several EPA regions and States have asserted that these authorities
apply to military ranges.
Today's proposal would resolve this question. If adopted, proposed
Sec. 261.2(g)(4) would have the effect of bringing munitions at closed
ranges and at ranges being transferred from military control under RCRA
corrective action standards, if the installation were otherwise subject
to RCRA permitting requirements. Under this proposed section, munitions
at a closed range would be defined as solid waste, and the range (if it
contained munitions or other contaminants) would constitute a solid
waste management unit. Releases of hazardous wastes or constituents at
or from the range would therefore potentially be subject to corrective
action under sections 3004(u) and (v), or 3008(h). On the other hand,
active and inactive ranges would not be considered solid waste
management units. In addition, proposed Sec. 261.2(g)(4) would provide
that, once DOD issued regulations for range cleanup, these DOD
regulations would supersede RCRA cleanup authorities.
In practice, RCRA corrective action would generally require an
assessment of possible risks and releases at closed ranges. In some
cases, sampling of environmental media (for example, soil, ground
water, or surface water) might be required. The level of assessment
needed would be consistent with the potential risk of exposure. It is
important to emphasize, however, that the RCRA corrective action
authorities do not automatically require cleanup to specific levels.
For example, risks from unexploded munitions might be controlled, where
appropriate, through access restrictions. In fact, DOD is already
required to address range cleanup as part of its own restoration
program. Thus, today's proposal, if adopted, would simply provide EPA
or a delegated State with independent oversight of cleanups at RCRA
sites, but would not affect the substantive cleanup standards that
apply.
Proposed Sec. 261.2(g)(4)(i) specifies that munitions remaining at
closed ranges would be solid waste, for statutory purposes. Some may
argue that EPA should propose to define munitions on active ranges as
solid wastes as well. EPA, however, focused on closed rather than
active ranges because it is technically difficult to address munitions
on active ranges, and because periodic cleanups (other than range
clearance exercises) at these ranges are likely to be of limited
environmental value, particularly since the ranges are under direct
control of the military and public access is restricted. Also, it could
involve risk to cleanup personnel. EPA emphasizes, however, that non-
munition releases are unaffected by today's rule. Also, environmental
releases from range activities that migrate off-range in ground-water
or runoff, including from active ranges, would be statutory ``solid
waste,'' and could be addressed under RCRA section 7003 . They could
also be addressed under the Clean Water Act or CERCLA.
EPA also considered including munitions on ``inactive'' as well as
``closed'' ranges in proposed Sec. 261.2(g)(4)(i). This approach would
have the effect of pushing RCRA sections 3004(u) and (v), and 3008(h),
corrective action requirements earlier in the process. EPA, however,
has not proposed this approach. The Agency recognizes that inactive
ranges may frequently be reused, and questions the value of a formal
corrective action process when the area will likely be subject to range
use again. Furthermore, such an approach might only encourage
installations to continue use of ranges, rather than discontinue their
active use, for fear of triggering EPA or State oversight. In any case,
any necessary remedial action would be required at the time of change
in land use or transfer of the range from military control, since at
that point the range would clearly be closed.
There are very substantial legal arguments and, assuming DOD issues

[[Page 56477]]
protective standards for range cleanup, compelling policy reasons for
EPA to exercise its authority pursuant to Sec. 3004(y) in a way that
will not lead to RCRA jurisdiction over range clean up at any stage. In
Barcelo v. Brown, 478 F. Supp. 646, 668-669 (D. Puerto Rico 1979), the
District Court held that materials resulting from activities that do
not resemble industrial, commercial, mining, or agricultural
operations, or community activities fall outside the definition of
``solid waste'' in RCRA. Because ``uniquely military'' activities such
as target practice at bombing ranges do not fall into any of these
categories, the Court held that such activities were not regulated
under RCRA. This conclusion also would be consistent with the approach
EPA took in its Subpart S proposal (55 F.R. 30809, July 27, 1990).
Thus, the Barcelo decision provides a rationale for excluding munitions
remaining at firing ranges from the RCRA definition of solid waste.
EPA, however, recognizes that the lines between ``uniquely military''
range activities and other activities (for example, target practice at
small arms ranges) are not always clear. Therefore, EPA seeks comment
on what sorts of range activities are properly considered uniquely
military.
Additional legal arguments in favor of this alternative approach
have been advanced, including the argument that unexploded military
munitions cannot become a ``discarded material'' because DOD is
statutorily obligated by 10 U.S.C. 172 and 10 U.S.C. 2701 to address
the human health and environmental hazards posed by its munitions and
unexploded munitions whenever and wherever encountered. These statutory
obligations, according to this argument, make it legally impossible for
DOD to ``abandon'' such materials.
DOD has an existing responsibility to address environmental
restoration under the ``Defense Environmental Restoration Program''
(DERP) (10 U.S.C. 2701 et seq.), and CERCLA response authorities, and
is generally responsible for preventing hazardous conditions related to
munitions under 10 U.S.C. 172. EPA understands that DOD intends to
propose clean up standards and a clean up process under these
authorities in a rulemaking to commence by January 31, 1996, and to be
completed by October 31, 1996. DOD intends that the rulemaking will be
an open process, with ample opportunity for the active participation of
the States and of the public. Further, the remedy selection and
implementation process in the rule will include a significant role for
the affected states and the interested public. The proposed rule will
specifically address the role of State regulatory agencies and the
interested public. DOD's proposed rule will address the nature of the
role of the States and will request comment on this important issue.
DOD will conduct this rulemaking in consultation with EPA. The
rulemaking is to fully involve the public and the States and adequately
address the safety, health, and environmental concerns posed by
munitions on closed and transferred ranges.
With the promulgation of such a rule, EPA believes that the
proposed designation of munitions on closed or transferred ranges as a
solid waste would be unnecessary. In this case, cleanups would be
governed by clear regulations that are issued through a public process
and that reflect the unique explosive safety considerations associated
with munitions and the need for environmental protection. Therefore,
regulation under a separate statute would be unnecessary. Further, if
DOD promulgates such rules after EPA's proposed rule becomes final,
then EPA believes that the DOD rules should supersede the EPA rule
identifying munitions on closed or transferred ranges as solid waste.
Citizens groups have expressed concern that, because CERCLA
authorities are limited to ``hazardous substances'' which include
``hazardous waste,'' unexploded munitions might escape CERCLA control
if it were not defined as being a solid (or hazardous) waste. EPA
believes this concern is unfounded, because it is the Agency's
expectation that most unexploded munitions fit within the CERCLA
definition of ``hazardous substance,'' independent of whether it is
considered a solid waste.
Finally, proposed Sec. 261.2(g)(4)(ii) would define military
munitions fired off-range and not promptly rendered safe (if necessary)
and retrieved to be solid waste, for the purposes of section 1004(27)
of RCRA. Firing munitions that land outside of a range at a military
installation would not be considered the intended use of the product
(i.e., the munition.) However, today's proposal would be based on the
view that a failure to render safe and retrieve a munition that lands
off range would be evidence of an intent to discard the munition.
Rendering safe might include treatment to prevent explosion as well as
destruction of the ordnance. If remedial action were infeasible--for
example because the munition was deeply buried or could not be
located--the operator of the installation would be required to maintain
a record of the event as long as any threat remained.
5. Waste Materials Derived From Munitions Manufacture
DOD and explosives manufacturers have often raised questions about
the applicability of RCRA requirements to residues from munitions
manufacture or manufacturing rejects. EPA, however, does not believe
that munitions manufacture raises special regulatory issues, and it is
not proposing to amend the current rules in this area. Instead, EPA's
long-standing regulations defining when manufacturing products and
secondary materials become solid wastes would continue to apply to
residues and other byproducts of munitions manufacture and processing.
These regulations are found in 40 CFR 261.2 and 261.6, and part
266. Under these regulations, ``secondary materials'' from munitions
manufacture or processing--including spent materials, sludges, by-
products, certain commercial chemical products, and scrap metals
8--are considered to be solid waste depending on how they are
managed (for example, see section 261.2(c)). And, if these materials
are also ``hazardous,'' they are regulated under Subtitle C. On the
other hand, off-specification ordnance or line rejects are considered
products, and not wastes subject to regulation under RCRA. If these
off-specification materials or rejects continue to meet the definition
of military munitions, today's rule would define when they became
hazardous waste.

\8\ These terms are defined in 40 CFR 261.1(c) and 261.33.
---------------------------------------------------------------------------

EPA believes that it would be inappropriate to change these long-
standing rules on the definition of solid waste in the context of
today's rulemaking. At the same time, however, EPA is considering
substantial amendments to its current rules to facilitate the recycling
of secondary materials. These amendments would likely apply to
secondary materials resulting from munitions manufacturing as well as
secondary materials from other industrial and manufacturing operations.

C. Standards Applicable to Generators and Transporters

Today's proposal would make two changes to the RCRA generator and
transportation requirements. First, proposed Secs. 262.10(h) and
263.10(c) would clarify that persons responding to immediate threats
from explosives and military munitions are not subject to RCRA
generator and transportation

[[Page 56478]]
requirements. This proposal would apply to all explosives emergency
responses (military and non-military) as well as to all conventional
and chemical military munitions emergency responses. This proposal is
discussed in more detail in Section IV.E of this preamble.
Second, proposed Secs. 262.10(i), 263.10(d), 264.70(b)(2), and
265.70(b)(2) would exempt stockpiled munitions (that are hazardous
wastes under sections 261.2(g)(ii-iv)) shipped off-site to DOD-owned or
controlled TSDF under DOD tracking procedures from RCRA manifest
requirements. This exemption would apply not only to military
personnel, but also to commercial carriers who have signed a compliance
agreement with the Military Traffic Management Command, and who operate
under the DOD system. This exemption would not apply to the off-site
transport of non-stockpile munitions (e.g., excavated hazardous wastes
under proposed Sec. 261.2(g)(1)(i) or range clearance munitions), since
these materials are not subject to the same stringent DOD off-site
shipping controls as are stockpiled munitions. Thus, the off-site
shipment of buried or landfilled munitions, UXO, or munition debris
would require the RCRA manifest and container markings (if the material
were hazardous). The exemption would also not apply to the transport to
a commercial (off-site) treatment, storage, or disposal facility.
This proposal to exempt stockpiled military munitions from the RCRA
manifest is based on EPA's conclusion that the DOD transportation and
inventory controls are at least equivalent to the RCRA manifest
controls, and on the safe transportation record of DOD.
The DOD shipping standards and controls provide a ``closed-loop''
system similar to the RCRA manifest. These controls include the
following forms: Government Bill of Lading (GBL) (GSA Standard Form
1109) and associated Special Instructions and Notes (SIN) and Routing
Instructions and Notes (RIN)--a series of files within an automated
information base used in preparing the GBL continuation sheets;
requisition tracking form DD Form 1348; the Signature and Talley Record
(DD Form 1907); Special Instructions for Motor Vehicle Drivers (DD Form
836); and the Motor Vehicle Inspection Report (DD Form 626). The DOD
Standards, giving instructions on the use of these forms, include: Army
Regulation (AR) 55-355--Transportation of Ammunition, Explosives, and
Other Hazardous Materials; AR 725-50--Requisitioning, Receipt, and
Issue System, Army Material Command (AMC)-R 385-100--Safety Manual; and
DOD Directive 6055.13--Transportation Accident Prevention and Emergency
Response Involving Conventional DOD Munitions and Explosives. ``A
Report to Congress On the Adequacy of Department of Defense Safety
Standards for Transportation of Hazardous Materials'' (1989) provides a
summary of these controls. These documents are available in the public
docket for today's proposal.
Features of the DOD transportation system include pre-trip routing
plans, safe havens and secure holding areas for vehicles experiencing
difficulties or for overnight storage, safe haven hotline, satellite
motor surveillance and tracking, shipper seals, dual driver protective
and escort services, firefighting instructions, and electronic
notifications/communications between shipper, carrier, and receiver.
DOD munitions shipments also comply with the DOT hazardous materials
transportation standards, which address packaging, labeling, marking,
placarding, emergency response, training, and shipping documentation
(49 CFR 100-179, 350-399). Although the DOT standards are not mandatory
for Federal agencies, DOD's standards have made them mandatory (e.g.,
DOD 4500.9-Transportation and Traffic Management, January 26, 1989).
EPA has reviewed these DOD documents and concludes that the resulting
procedures, in conjunction with the applicable DOT standards, provide
for consistency with the requirements of RCRA section 3003.
As a result of these and other controls, DOD's transportation
safety record is excellent. DOD makes approximately 50,000 shipments of
military munitions and explosives annually, including shipments for
demilitarization. According to the U.S. Army Technical Center for
Explosives Safety's Explosives Safety Information Database and the
DDESB's Historical Accident Database, there are about 20 minor non-
explosive incidents per year (e.g., minor traffic accidents). In the
past 20 years, there have been only three accidents involving the
munitions cargo itself, and of these three, only one resulted in an
explosive detonation.
Regarding the RCRA manifest and marking requirements, DOD is
concerned about training its personnel in two separate systems, and
maintaining both of these systems simultaneously--one for its own
management of the military stockpile, and one (covering a small portion
of the stockpile) for regulatory oversight. In addition, DOD is
concerned about certain specific aspects of RCRA transport
requirements--for example, the prohibition in Sec. 263.12 against
storage of wastes in transport in unpermitted ``transfer facilities''
for longer than ten days. According to DOD, this restriction may
conflict with its need to sequester shipments of munitions in
designated safe havens in case of emergencies or unanticipated
transportation difficulties. At the same time, critics of DOD are
concerned about any system that is self-regulating, and question the
burden that compliance with RCRA would impose.
In light of the concerns of DOD and members of the public, EPA
solicits comment on: (1) whether RCRA transportation requirements are
needed for military munitions, given DOD's current practices, and
whether other alternatives would be appropriate (e.g., the approach EPA
adopted for ``universal wastes'' (60 FR 25492, May 11, 1995), which
requires recordkeeping and a streamlined tracking system for certain
recycled wastes), (2) whether transport of unused munitions (i.e.,
munitions in the stockpile) going for disposal should be handled
differently from used or previously disposed of munitions, (3) whether
other modifications (besides the manifest and marking exemptions)
should be made to RCRA transportation requirements to address DOD
concerns, and (4) whether shipment of munitions from FUDs sites or
shipment to commercial waste management facilities should also be
exempted from transportation requirements.
EPA has not proposed other amendments to generator or transporter
standards for waste munitions. DOD has raised concern that, under
today's proposal, compliance with generator standards could be
complicated and expensive, particularly because of 40 CFR 262.34
requirements for contingency plans, inspections, personnel training
plans, and tank or container storage. EPA emphasizes that facilities
with military magazines used to store stockpiled munitions would not be
subject to these requirements. These requirements apply to generator
facilities that accumulate hazardous waste. Since in most cases a
stockpiled munition in storage would not be regulated as waste until it
was removed from the magazine, the facility (and the magazine) would
not be subject to accumulation standards. Instead, installations
removing stockpile munitions from storage for the purposes of disposal
would be subject to the following standards: (1) Determining if the
waste were hazardous and determining treatment requirements; (2)

[[Page 56479]]
obtaining a RCRA identification number; (3) preparation of a RCRA
biennial report and RCRA section 3016 biennial report; and (4) waste
minimization program certification under RCRA section 3002(b). EPA
solicits comment on the appropriateness of these requirements and
whether they are necessary.

D. Storage of Military Munitions

In enacting RCRA Sec. 3004(y), Congress sought to ensure that
management standards for waste military munitions under RCRA would not
be inconsistent with safety standards established under 10 USC
Sec. 172. In the development of the FFCA, EPA and DOD jointly took
forward a legislative proposal to provide for better integration of the
DDESB explosives safety regulations and the specific requirements of
the RCRA regulations. Although the specific statutory language of RCRA
Sec. 3004(y) does not address integration of the RCRA standards with
the DDESB explosives safety standards, this point was spoken to during
the legislative development process and appears throughout the
legislative history for RCRA Sec. 3004(y).
Today's proposal includes a new subpart EE in 40 CFR Parts 264 and
265 for military magazines storing hazardous waste munitions. This
subpart combines the environmental features of the current RCRA storage
unit standards with the DOD Explosives Safety Board (DDESB) munitions
storage magazines standards to eliminate potential inconsistencies or
conflicts between the RCRA and DDESB standards. The proposal does not
require that all munitions be stored in magazines meeting these
standards, but rather, provides an alternative for permitting the
storage of military munitions waste under RCRA. Depending on the
explosive hazards, military installations may still seek a permit and
store waste munitions under the already existing 40 CFR parts 264 and
265 standards for other types of storage units, including containers
(subpart I), tanks (subpart J), containment buildings (subpart DD), and
perhaps waste piles (subpart L). DOD would apply for a permit under the
most appropriate of these sets of standards. The new subpart EE
standards would be more appropriate for most military explosive and
chemical munitions wastes, including products that DOD determines are a
hazardous waste under today's Sec. 261.2(g)(1)(iv) and unexploded
ordnance recovered from ranges and moved into storage prior to
treatment or disposal.
Consistent with the RCRA standards, today's proposal covers design,
operation, monitoring, inspection, closure, and post-closure care, and
it addresses the same concerns as do the other RCRA storage unit
standards. The design and operating standards set containment and
control performance standards to prevent contamination of soil, ground
water, surface waters, and the air; they also address the DOD safety
concerns to protect against explosions and to minimize the impact if
one should occur. The proposal includes a primary barrier or
containment system, which may be a bomb shell, a protective casing, a
storage container, or a tank. For non-liquid wastes stored outdoors or
in open storage areas, the unit design and operation must provide that
the waste will not be in standing precipitation. This may be
accomplished by a number of design and operating features, including a
sloped impervious base or a pervious base, and/or waste elevation.
For those few military munitions wastes that are liquids, in
addition to the primary barrier or container, the unit would have to
provide a secondary containment system. The secondary containment
system design, operation, controls, and monitoring features may include
a combination of sumps, pumps, drains, slope, double-walled containers
or tanks, and/or elevated waste or other features that provide that any
released liquids or precipitation are contained and promptly detected
and removed from the waste area.
The proposal covers the three basic designs of the DDESB storage
standards: (1) earth-covered magazines (which are frequently used for
shock sensitive and other munitions), (2) above-ground magazines (which
might be used for munitions that do not pose a mass detonation or
fragment producing hazard), and (3) outdoor or open storage areas
(typically for munitions that do not pose a significant potential for
explosion).
Monitoring and inspections would be required to assure that the
containment systems and controls are working as designed, that the
wastes are stable, and that no contaminants that might adversely affect
human health or the environment are being released from the magazine.
In addition, all hazardous waste munitions would have to be inventoried
at least annually, which is consistent with current DOD requirements.
The closure standards mirror the other RCRA storage unit closure
standards, requiring waste and contaminant removal and containment
system decontamination.
In addition to the subpart EE approach, EPA is considering and
solicits comment on three alternative approaches.
Under the first alternative, EPA would defer regulating the storage
of waste military munitions under RCRA and subject them only to the
explosives safety standards developed by DDESB and Services. DOD
believes that this is statutorily permissible under the definition of
hazardous waste found in RCRA Sec. 1004(5). This definition states that
a ``hazardous waste'' is a ``solid waste, or combination of solid
waste, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may: (A) cause, or
significantly contribute to, an increase in mortality or an increase in
serious, irreversible, or incapacitating reversible illness; or (B)
pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed.'' With respect to the first criterion, DOD
maintains there is no evidence that waste military munitions in storage
cause or contribute to an increase in mortality or illness (save for
the case of an accidental detonation of those munitions, which the
DOD's excellent safety record shows is unlikely). Regarding the second
criterion, DOD believes that the existing DOD controls over the storage
and transportation of all munitions, including waste munitions, are
adequate to prevent waste military munitions from posing a substantial
or present threat to human health or the environment.9

\9\ This logic does not extend to the treatment or disposal of
waste munitions where EPA believes that full RCRA compliance is
appropriate to protect human health and the environment.
---------------------------------------------------------------------------

DOD's underlying rationale for this approach is as follows. The
regulatory program developed by EPA in response to the RCRA mandate
establishes standards for the storage of wastes both by those who
generate the waste and those who provide permanent long-term storage,
treatment, or disposal. These regulations were designed from the outset
to address problems stemming from waste management at, for example,
industrial operations that, prior to RCRA, were largely unregulated.
Hence, EPA has historically examined the consequences of ``plausible
mismanagement'' scenarios since there were no other controls over the
management of these wastes. DOD believes that the case of military
munitions is fundamentally different in that there are existing
statutory

[[Page 56480]]
authorities and regulatory programs addressing the storage of military
munitions, including waste military munitions. The design and operation
of all DOD ammunition storage units are conducted in compliance with
standards set by DDESB and Service-specific regulations and
implementing procedures. While these standards have safety as the
primary concern, as explained earlier in this preamble, EPA and one
interested party have reviewed the DDESB standards in detail and
concluded that the technical design and operating standards of the
DDESB meet or exceed RCRA standards in virtually all respects. There
were gaps in certain procedural requirements and in areas unrelated to
risks from explosive materials (e.g., in requirements to coordinate
with local authorities or in closure requirements). At this point,
neither EPA nor DOD is convinced that application of the RCRA standards
in addition to DDESB and Service-specific standards would substantially
increase protection of human health or the environment.
For example, all military munitions-related operations, including
those involving waste military munitions, are conducted in accordance
with an approved Standing Operating Procedure (SOP) that provides
detailed guidance on how personnel are to complete a specific activity.
These SOPs address a wide variety of issues including, but not limited
to: safety, security, environmental protection, and quality assurance.
Each SOP must be approved by different functional areas at the
installation, including: operations, safety, industrial hygiene,
environmental compliance, security, quality assurance, and command
representatives. Personnel implementing these SOPs are required to be
trained and certified as qualified to perform the task to which they
are assigned.
Munitions storage units are also required to be inventoried on at
least a yearly basis; however, some munitions (i.e., security class I
or II) require inventory more frequently.10 During these
inventories, in addition to counting the munitions present, the
organization conducting the inventory updates other data elements in
the record. Discrepancies are addressed through a research,
investigation, and reconciliation process. All inventory-related
activities are overseen by an independent quality control and quality
assurance organization. Accounting procedures for these munitions are
managed through two separate and distinct data systems, one at the
installation and one at a central repository. The records kept at the
installation include: quantity, location, ownership (i.e., specific
organizational element within DOD), physical condition, and current
inventory status.

\10\ These are items with a high intrinsic value and items for
which additional security procedures are required to prevent their
theft.
---------------------------------------------------------------------------

The actual storage procedures for military munitions are based on
four factors that relate to the physical and chemical characteristics
of these materials: (1) compatibility grouping; (2) hazard class; (3)
net explosive weight (NEW); and (4) quantity distance formulae. These
are contained in the DDESB standards ``DOD Ammunition and Explosives
Safety Standards'' DOD 6055.9-STD, which may be obtained by contacting
Ms. Lydia Sanchez, DOD Explosives Safety Board, 2461 Eisenhower Ave.,
Rm. 856-C, Alexandria, VA 22331-0600, or by
E-mail at [email protected], or from the EPA docket for
today's rule.
DOD also argues that the proposed approach in this first
alternative is consistent with other aspects of RCRA, other findings in
law, and the approach taken in other regulatory matters addressed by
the Federal government.
DOD points out that the DDESB standards for the storage of
munitions were subjected to judicial review in Pratt v. Hercules, Inc.,
570 F. Supp. 773, Cir. 1982. In this decision the court held: For
reasons cited in the court's earlier analysis * * * this court finds
that the standards promulgated by the DDESB * * * were sufficient to
comply with the mandate (10 U.S.C. 172) of eliminating undue risk of
harm to those (inside and) outside the (facility). Further, the
Occupational Safety and Health Administration has recognized the
statutory authority of DDESB and their expertise in establishing
requirements for the safe storage of military munitions. In a November
8, 1990, rule OSHA stated: The DDESB has the final review and approval
authority for any engineering changes at government owned facilities to
assure that they are consistent with explosives safety standards and do
not increase explosive risk (55 FR 46948, November 8, 1990).
The most important piece of evidence in support of DOD's position
is the Services' excellent record in providing for the safe storage and
transportation of military munitions, as discussed elsewhere in this
preamble.
In addition, DOD believes that such an approach is wholly
consistent with the President's initiative to reform Federal
regulations to eliminate unneeded, duplicative, or superfluous
requirements and is also entirely consistent with the President's
requirements for promulgation of new regulations, as set forth in
Executive Order 12866. Executive Order 12866 requires that any
Executive Branch agency consider, as part of developing new
regulations, whether existing regulations (or other laws) have created
or contributed to the problem that a new regulation is intended to
correct, and whether those regulations (or other laws) could be
modified to achieve the intended goal of regulation more effectively.
For these reasons, DOD asserts that waste military munitions do not
have to be managed in accordance with RCRA standards for the storage of
hazardous waste so long as they are stored in accordance with the
regulations established by DDESB and the Service-specific implementing
procedures and requirements. As a separate matter, however, to meet the
obligations imposed by Executive Order 12866, DOD is working with EPA
to address those limited areas in the DDESB standards where EPA has
noted differences between the DDESB standards and RCRA standards.
Therefore, EPA solicits comments as to what specific requirements are
needed to make the DDESB standards consistent with RCRA.
The second alternative approach would specify that waste munitions
transported and managed in accordance with DDESB standards would not be
an RCRA hazardous waste, and therefore would not be subject to Subtitle
C standards. RCRA section 1004(5)(B) defines as ``hazardous'' those
wastes that may present a hazard ``when improperly * * * managed.'' In
addition, section 3001 of RCRA authorizes EPA to determine whether to
designate a waste as ``hazardous.'' In determining whether a specific
waste should be designated as ``hazardous,'' EPA traditionally
considers plausible ``mismanagement scenarios.'' If significant risk
were likely to occur under these scenarios, EPA would designate the
waste as hazardous. The Agency, however, believes that it is not
required to consider implausible mismanagement scenarios in determining
whether a waste is hazardous. Thus, if mismanagement of a particular
waste is implausible even without regulation under Subtitle C, EPA
believes it has authority to refrain from regulating the waste under
that subtitle. Under this approach, EPA would take into account DOD's
record in storing waste munitions and DOD's existing storage standards
in

[[Page 56481]]
determining whether it was necessary to regulate waste military
munitions as hazardous. Once these controls are taken into account, it
would be argued that mismanagement of waste munitions is unlikely and
regulation of these materials under Subtitle C is redundant.
EPA is considering this approach in several other rulemakings and
will be discussing the legal rationale in detail in those rulemakings.
A more detailed legal discussion will be provided in EPA's forthcoming
Hazardous Waste Identification Rule proposal, scheduled for publication
in November 1995. Where it is relying on this approach, EPA typically
intends to prescribe specific conditions or procedures to ensure that a
waste would not be mismanaged. In the case of military munitions, EPA
is considering a comparable approach. Under this approach, EPA would
specify that waste munitions were not ``hazardous'' as long as they
were stored in compliance with DDESB standards. Failure to store waste
munitions in compliance with these standards would, in effect, render
the material ``hazardous'' and constitute illegal management of
hazardous waste.
Under the third alternative, EPA would not establish special
performance standards for waste military munitions under 40 CFR Parts
264 and 265 Subpart EE; instead, EPA would simply specify in Parts 264
and 265 that storage of waste munitions must meet DDESB standards.
Waste storage units at interim status facilities would automatically be
required to comply with these standards. For permitted units, EPA or
the State would not specify particular standards in the permit, but
would simply cite DDESB standards. This approach would allow EPA or
State regulators directly to enforce DDESB standards, but would
eliminate any possible inconsistency or redundancy between military and
EPA standards.
EPA took essentially the same approach in its regulations of
underground storage tanks in 40 CFR Part 280. In this regulation, the
Agency stated that compliance with the specific industry codes
constituted compliance with EPA technical standards. One traditional
concern with this general approach is that industry standards change
from time to time, complicating regulatory referencing. In the third
alternative approach under consideration in today's proposal, EPA would
not expect to revise its RCRA standards every time the DDESB changed
its standards. To do so would not only require constant EPA rulemaking,
unnecessarily consuming limited resources; more important, perhaps, it
would foster enormous confusion, because there would always be a time
lag between DDESB's adoption of new standards and EPA's revision of the
RCRA regulations. When DDESB came out with new standards, facilities
would be required to meet them, and the standards would be enforceable
through DDESB's regular compliance mechanisms. But (until EPA changed
its standards), facilities would also remain subject to the older
standards incorporated into the RCRA regulations. The state
authorization process under RCRA would complicate the process even
more, since it would lead to further delay in regulatory adoption of
new DDESB standards. As a result, under this option, EPA would refer to
the most recent DDESB standards. Given DOD and the Services' long
record of safety in the storage of military munitions and the DDESB's
independent status within the Department of Defense, EPA believes that
this approach would be both enforceable and fully protective of human
health and the environment.
As mentioned above, EPA recognizes that certain RCRA requirements
(e.g., those related to closure) are not in the DDESB standards.
Therefore, EPA solicits comments on what specific requirements should
be added to supplement the existing DDESB standards under any of the
four alternatives and whether these should be added to the RCRA or the
DDESB standards.
All three of the alternative options discussed above rely on the
DDESB standards. Military facilities would be assured that their basic
obligation, in storing waste munitions, would be to comply with DDESB
standards. If they were doing so, then under the first alternative,
they would be excluded from RCRA coverage entirely; under the second
alternative, the stored ``waste'' munitions would be RCRA solid waste,
but would not be regulated as hazardous waste (e.g., permits would not
be required); under the third option, ``waste'' munitions would be RCRA
hazardous waste, but compliance with DDESB standards would constitute
compliance with RCRA technical standards.
The first alternative differs from the other two options in one
important respect: under this alternative, EPA and authorized States
would have no enforcement or regulatory role in the storage of waste
munitions. Under the other alternatives, EPA and the States would have
an oversight role, and regulatory agencies could enforce against
facilities storing waste munitions out of compliance with DDESB
standards. At the same time, however, the second alternative would
provide significantly more relief to DOD and the Services than the
third, and in many respects is similar to the ``deferral'' alternative.
In particular, the approach (like the ``deferral'' approach) would
eliminate permit requirements for storage of waste munitions (e.g., the
procedures of Part 270, including public notice would not apply to
storage of waste munitions, because waste munitions stored in
compliance with DDESB standards would not be considered ``hazardous
waste''); facilities generating waste munitions would not have to
comply with generator standards (e.g., filing biennial reports); the
land disposal prohibitions against extended storage would not apply;
and permitted facilities receiving munitions for disposal would not be
prevented from receiving that material, even if they had ``off-site''
prohibitions in their permits--since the material would only become a
hazardous waste when it arrived at the treatment or disposal unit.
EPA solicits comments on all three of these alternatives, as well
as the subpart EE approach in today's rule.

E. Emergency Responses

Today's proposal clarifies that RCRA generator, transporter, and
permit requirements do not apply to immediate responses to threats
involving military munitions or other explosives. EPA is proposing this
language to address concerns of DOD and other emergency response
officials that RCRA requirements may impede emergency responses,
especially by causing delays or confusion.
The current RCRA rules exempt emergency responses from full permit
requirements in two ways: (1) permits are not required for immediate
responses to a discharge of hazardous waste or an imminent and
substantial threat of a discharge (Secs. 264.1(g)(8), 265.1(c)(11), and
270.1(c)(3)); and (2) in cases of imminent and substantial endangerment
to human health or the environment, a temporary emergency permit may be
issued to a facility to treat, store, or dispose of hazardous waste--
this permit may be issued orally, if followed by a written emergency
permit within 5 days, and may not exceed 90 days in duration
(Sec. 270.61). (In clarification, EPA emphasizes that the exemption
from permit requirements in the case of immediate responses is an
exemption from the requirement for an emergency permit under
Sec. 270.61, as well as from full RCRA permitting. Thus, an immediate
response, under Federal regulations,

[[Page 56482]]
would require neither a full RCRA permit nor an emergency permit.)
EPA has received a number of inquiries, from both military and non-
military sources, seeking clarification of how these provisions apply
to emergency situations involving explosives. In response, EPA has
stated that it considers immediate responses to situations involving
explosives to be exempt from RCRA permitting (including emergency
permitting), and substantive requirements (e.g., the risk assessment
requirements for OB/OD treatment) under the exemptions listed in
Secs. 264.1(g)(8), 265.1(c)(11), and 270.1(c)(3). In EPA's view, time-
critical responses to explosives emergencies constitute immediate
responses to a discharge, or imminent and substantial threat of a
discharge, of hazardous waste. On the other hand, if an immediate
response is not necessary to address the threat, and the response can
be deferred, the responding personnel should seek a RCRA emergency
permit under Sec. 270.61.
The intent of today's proposal is to codify, with some
clarifications, the existing EPA policy. Proposed
Secs. 264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D), and 270.1(c)(3)(i)(D) make
it clear that explosive and chemical munition emergencies can be
addressed without a RCRA permit (including an emergency permit). The
proposal also clarifies, in Secs. 262.10(h) and 263.10(c), that, if an
emergency response expert at the site determines it to be appropriate,
the explosive material may be removed and transported for safe
treatment without a RCRA manifest, and the transporter is not required
to have a RCRA identification number. Such transport could be to an
open space or an EOD range. This proposal, which EPA believes is
necessary to allow prompt response to explosives emergencies, is
consistent with current EPA policy.
Today's proposal includes three new definitions in Sec. 260.10 to
help clarify the scope of this exemption. The definition of
``explosives and munitions emergency'' describes in detail what would
constitute an emergency, and clarifies that an emergency situation
includes suspect or unknown situations with significant uncertainties,
including improvised explosive devices (IEDs, e.g., home-made bombs).
The definition also states that the ``emergency response expert'' is
responsible for determining whether an emergency exists.
An ``explosives and munitions emergency response expert'' is
defined to include all military and non-military personnel trained in
the identification, handling, treatment, transport, and destruction of
explosives or conventional or chemical military munitions. Military
emergency response experts include DOD Explosives Ordnance Disposal
(EOD) personnel, who are trained in responding to emergency situations
involving military munitions and explosives, and DOD Technical Escort
Unit (TEU) personnel, who are trained to respond to emergency
situations involving chemical munitions. EOD and TEU personnel respond
to on-installation and off-installation incidents involving military
munitions. They also respond to requests by other Federal agencies or
local civil authorities for assistance with incidents involving non-
military explosives. Non-military emergency response experts include
the Bureau of Alcohol, Tobacco, and Firearms (BATF), Federal Bureau of
Investigation (FBI), Central Intelligence Agency (CIA), Drug
Enforcement Administration (DEA), US Postal Service, Federal Aviation
Administration (FAA), other Department of Transportation (DOT),
Department of Interior Bureau of Mines, State and local enforcement and
emergency response personnel, and private sector explosives experts or
specialists.
Finally, an ``explosives and munitions emergency response'' is
defined as all immediate response activities identified and carried out
by the emergency response expert to eliminate the threat, including all
handling, render-safe (e.g., methods to defuse or separate initiator
from the explosive), transportation, treatment, and destruction
activities. These emergency actions might involve defusing, detonation,
or other treatment of ordnance in-place, or transportation to a safer
location, including to an EOD range, to defuse, detonate, or otherwise
to abate the immediate threat.
DOD has raised three concerns regarding the regulation of emergency
responses involving munitions or explosives under RCRA: (1) the effect
of the RCRA land disposal restrictions on response actions, (2)
possible RCRA corrective action liabilities, and (3) the possibility
that treatment permits would be required for areas ``routinely'' used
to handle emergencies. To the extent that any of these issues would
delay or complicate responses to emergencies involving explosive
material, EPA shares DOD's concerns. EPA's objective in proposing
today's rule, and in clarifying the applicability of RCRA to emergency
responses, is to remove regulatory impediments to emergency responses
and to promote the safe and prompt management of explosives
emergencies. EPA agrees with DOD that any regulatory impediments to
prompt responses should be removed. DOD's three concerns are
specifically discussed below.
Concerning the first issue--the application of the RCRA land
disposal restrictions to explosives emergencies--EPA continues to
regard open burning/open detonation as not constituting land disposal.
Therefore, the land disposal restrictions do not apply. See 51 FR 40580
(November 7, 1986) and 52 FR 21011 (June 4, 1987). With regard to
emergency responses to explosives involving deactivation methods other
than open burn/open detonation, EPA notes that the treatment standard
for reactive wastes is deactivation (i.e., removal of the hazardous
waste characteristic of reactivity); see 40 CFR 268.42, Table 2. These
standards are consistent with typical responses of an EOD team to an
explosives emergency, and therefore the RCRA treatment requirements
would not present a problem.
The responding agencies primary concern on the second issue--the
applicability of RCRA corrective action requirements--is the
possibility that they might incur liability for site remediation or
investigation when they conducted an emergency response. In response to
this concern, EPA emphasizes that RCRA corrective action requirements
would not fall on the responding agency and that today's proposal would
not in any way change or increase the responding agency's liability.
In the first place, the standard RCRA corrective action authorities
in sections 3004(u), 3004(v), and 3008(h) would not be at issue,
because they apply only to RCRA permitted or interim status facilities.
Thus, these requirements would apply only if the emergency response
took place at a RCRA treatment, storage, or disposal facility, and in
this case any responsibilities for corrective action would fall on the
facility owner, rather than on the responding authority. Furthermore,
RCRA corrective action requirements do not apply to actions taken under
the immediate response provisions of 40 CFR 264.1(g)(8), 265.1(c)(11),
and 270.1(c)(3). Finally, in the case of a response conducted under a
RCRA emergency permit (40 CFR 270.61(b), RCRA corrective action
requirements would be excluded under 40 CFR 270.61(b)(6). This
provision requires that emergency permits exclude conditions that would
be inconsistent with the emergency situation that the permit was
addressing. (EPA discussed this point in its RCRA corrective action
proposal of July 27, 1990, 55 FR 30806.) Finally, if a response action
is taken under CERCLA authority, CERCLA

[[Page 56483]]
section 107(d)(1) provides that no person ``shall be liable under this
title for costs or damages as a result of actions taken or omitted in
the course of rendering care, assistance, or advice in accordance with
the National Contingency Plan (NCP) or at the direction of an onscene
coordinator appointed under such plan, with respect to an incident
creating a danger to public health or welfare or the environment as a
result of any releases of a hazardous substance or threat thereof.''
DOD's concern on the third issue is that, if the responding agency
transported an explosive device to an off-site treatment area, that
area might become subject to RCRA permitting requirements. In emergency
situations, DOD EOD teams and other responding agencies often find it
safer to move explosive material away from the site where it was
found--where it may threaten people or property--and transport it to an
EOD range. In such cases, the fact that the material can be transported
to another location does not necessarily mean that the dangerous
situation is under control or the emergency is over. Rather, it
indicates a need to find an area where site access is controlled and
the site conditions are known (e.g., the distance to nearby structures
is adequate and there are no subsurface utilities), so that the
material can be disarmed, defused, deactivated, or destroyed with
confidence that an explosion will not cause injury or collateral
damage. In previous guidance, EPA has consistently stated that off-site
treatment of explosives derived from emergency responses does not
trigger permit requirements, as long as it is legitimately part of the
emergency response.
Because of this need for safe treatment sites, some EOD ranges may
be regularly used to destroy explosives managed during emergency
responses. The issue has been raised (and previous EPA guidance
suggests) that some level of ``routine'' use of a particular range
should trigger RCRA permit requirements. In EPA's view, however, the
question of whether a permit is necessary hinges on the nature of each
individual response (i.e., whether or not it involves an emergency),
rather than on the number of times a given area is used for emergency
responses. As long as the response to each individual incident was an
emergency response, a RCRA permit would not be required.

F. Definition of ``On-Site''

Today's proposal would modify the definition of ``on-site'' in 40
CFR Sec. 260.10 by adding contiguous property under the control of one
person that is divided by a public or private right-of-way, even if
access is by travelling along (as opposed to across) the right-of-way
to gain entry.11 The definition of on-site determines whether
waste must be accompanied by a manifest during transportation and
whether part 263 transporter requirements apply. (See, e.g., 40 CFR
262.20(a) and 263.10(b).

\11\ The current regulatory definition is: ``On-site means the
same or geographically contiguous property which may be divided by
public or private right-of-way, provided the entrance and exit
between the properties is at a cross-roads intersection, and access
is by crossing as opposed to going along, the right-of-way. Non-
contiguous properties owned by the same person but connected by a
right-of-way which he controls and to which the public does not have
access, is also considered on-site property.''
---------------------------------------------------------------------------

Many facilities generating hazardous wastes (including most
military installations) are found on large properties split by public
roads. Under current regulations, a generator or TSDF who produced or
managed waste at one location and moved the waste across the road for
temporary storage would be moving the waste ``off-site,'' if the waste
were transported along rather than directly across the road. The waste
transported along the route currently requires a RCRA manifest. This
requirement does not currently apply, however, if the wastes are
transported directly across the road.
Today's proposal would expand the definition of ``on-site'' to
allow transportation without a manifest between contiguous properties
controlled by the same person regardless of how access is gained from
one parcel to another when such contiguous property is cut by a public
or private right-of-way. All other aspects of the definition would
remain the same.
The question of how ``on-site'' is defined arose in the context of
military munitions because many military installations are crossed by
public roads. Today's proposal, however, would apply to hazardous waste
generators and TSDFs in general, because the same situation exists for
non-military entities. For example, a number of universities, with
laboratories and other sources of small amounts of hazardous waste
dispersed throughout campuses, have found that the manifesting and
transportation requirements make it difficult to consolidate wastes at
a single location for off-site shipment under the current requirements.
Similarly, large industrial facilities may face the same administrative
or logistical difficulties.
Whether waste no longer subject to the manifest would continue to
be subject to Department of Transportation (DOT) requirements will
depend on whether that material is regulated under any other DOT hazard
class. The Hazardous Materials Regulations (HMR, 49 CFR parts 171
through 180) define a hazardous waste as any material that is subject
to the Uniform Hazardous Waste Manifest Requirements of the EPA
specified in 40 CFR part 262 (49 CFR 171.8). If a material is not
subject to EPA's manifest requirements, it is not considered a
``hazardous waste'' by DOT. However, such material may still be
regulated as a hazardous material and subject to the HMR if it meets
the defining criteria for one or more of the DOT hazard classes.
Therefore, for these shipments, generators and/or TSDFs must decide if
the waste falls under any of the other DOT hazard classes in order to
determine if compliance with the DOT requirements under CFR parts 171
through 180 is required.
EPA believes that change in the definition of ``on-site'' will
result on balance in an increase in protection of human health and the
environment. EPA believes that the current definition of on-site may be
discouraging consolidation within a generator's or TSDF's site,
resulting in less control of the waste by the generator or TSDF.
Removing barriers to consolidation of waste in one main area, rather
than several small areas, will reduce the possibility that the public
and the environment will come into contact with hazardous waste.
EPA also believes that facilitating more central consolidation will
allow generators and TSDFs to place such consolidation sites in more
remotely located areas than they would if confined to the boundaries
within rights-of-way, thereby increasing the safety of the public
should an accident occur. The new definition gives generators and TSDFs
such as military bases and universities more flexibility to determine
where consolidation areas are situated. In addition, EPA believes this
change in definition will have the added benefit of facilitating the
building of safer accumulation areas because generators and TSDFs may
be more likely to exceed regulatory requirements for consolidation
areas if they are responsible for fewer consolidation sites overall.
EPA expects the benefit of consolidation on balance outweighs the risk
of allowing transportation without a manifest along a short stretch of
road to which the public has access. EPA requests comments on these
views of

[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%3A95-27434. Public record. Not legal advice.