Closed, Transferred, and Transferring Ranges Containing Military Munitions

SUMMARY: The Department of Defense (DoD) is proposing a rule that

identifies a process for evaluating appropriate response actions on

closed, transferred, and transferring military ranges. Response actions

will address safety, human health, and the environment. This rule

contains a five-part process that is not inconsistent with the

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) and is tailored to the special risks posed by military

munitions and military ranges. All closed, transferred, and

transferring military ranges will be identified. A range assessment

will be conducted in which a site-specific accelerated response

(various options for protective measures, including monitoring) will be

implemented. If these measures are not sufficient, a more detailed

site-specific range evaluation will be conducted. Recurring reviews

will be conducted, and an administrative close-out phase also is

included.

DATES: Written comments on this proposed rule will be accepted until

December 26, 1997.

ADDRESSES: Written comments (one original and two copies) should be

addressed to: DoD Range Rule, P.O. Box 4137, Gaithersburg, MD 20885-

4137. Comments may also be submitted electronically by sending

electronic mail (``e-mail'') through the internet to: [email protected].

All electronic comments must be submitted as an American Standard Code

for Information Interchange (ASCII) file without special characters or

any form of encryption, or as a Microsoft Word file. The administrative

record for this rulemaking will be kept in paper form. Accordingly, the

Department of Defense will convert all documents received

electronically into printed paper form as they are received and will

place the paper copies in the administrative record. In addition,

comments may be faxed to (800) 870-6547.

Public comments and the supporting information used for this rule

will be made available for public inspection and copying at the DoD

range rule administrative record located at 910 Clopper Road,

Gaithersburg, MD 20878-1399. This administrative record is open from

9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal

holidays. To review the administrative record materials, the public

must make an appointment by calling (301) 258-8753.

FOR FURTHER INFORMATION CONTACT: To request a copy of the Range Rule or

to ask a general question, please call the toll-free DoD range rule

information request line (available 24 hours a day, 7 days a week) at

(888) 541-1081. The toll-free number for the hearing-impaired is (800)

870-6557. In addition, this proposed rule may be downloaded from the

World Wide Web at http://www.acq.osd.mil/ens/. For specific technical

questions, please contact Mr. Joseph Murphy, U.S. Army Environmental

Center Range Rule Office, or Ms. Karen Heckelman, U.S. Army

Environmental Center Office of Counsel, at (410) 612-7104.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Legal Authority

II. Background

III. Summary of Proposed Rule

IV. Section-by Section Analysis

I. Legal Authority

II. Background

III. Summary of Proposed Rule

IV. Section-by-Section Analysis

A. Purpose, scope, and applicability

B. Definitions

1. Military munitions

2. Military range

3. Closed range

4. Transferring range

5. Transferred range

6. Inactive range

7. Active range

8. Unexploded ordnance

9. Other constituents

10. Federal land manager

11. American Indian tribe

12. Property owner

C. Summary of challenges

1. Safety

2. Current technological capabilities

3. Technology development

4. Magnitude

D. Overview of the range response process

1. Introduction

2. Program overview

3. Programmatic concepts

E. Detailed discussion of the phases of the range response

process

1. Identification of closed, transferred, and transferring

military ranges

2. Range assessment/accelerated responses

3. Evaluation of RA/AR results

4. Range evaluation

5. Range evaluation findings

6. Site-specific response evaluation

7. Site-specific response implementation

8. Recurring reviews

9. Ending the range response process

F. Other issues

1. DoD environmental response authorities and relationship to

other laws

2. Water ranges

3. Other range activities

4. Chemical agent constituents

5. Buried military munitions

6. Depleted uranium

7. Regulator, American Indian tribe, and public involvement

8. Small arms ranges

9. Guidance

10. Dispute resolution

11. Allocation of operation and maintenance costs between

federal agencies

12. Future land use issues for transfers between federal

agencies

V. Discussion of other major alternatives

A. General

B. Comprehensive Environmental Response, Compensation and

Liability Act

C. Defense Environmental Restoration Program

D. Resource Conservation and Recovery Act

E. DoD explosives safety standards promulgated pursuant to 10

U.S.C. 172

F. Status quo

VI. Administrative requirements

A. Regulatory impact analysis

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Environmental justice

E. Unfunded mandates

VII. References/docket

I. Legal Authority

This part is proposed under the authorities of the Defense

Environmental Restoration Program (DERP), in 10 U.S.C. 2701 et seq.;

the DoD Explosives Safety Board (DDESB), in 10 U.S.C. 172 et seq.; and

Section 104 of CERCLA, in 42 U.S.C. 9601 et seq., as delegated to the

DoD by Executive Order (E.O.) 12580 (59 FR 2923, January 23, 1987).

II. Background

Section 107 of the Federal Facility Compliance Act of 1992 amended

the Resource Conservation and Recovery Act (RCRA) and required the U.S.

Environmental Protection Agency (EPA) to promulgate regulations

identifying when conventional and chemical military munitions become

hazardous waste subject to RCRA Subtitle C regulations. EPA's proposed

military munitions rule (60 FR 56476, November 8, 1995) would have

identified military munitions left on a closed range or a range

transferred from military control as meeting the statutory definition

of solid waste in RCRA Section 1004(27), potentially subject to RCRA

corrective action or Section 7003 authorities. However, EPA's proposed

rule also stated that if the Department of Defense, pursuant to the

Department of Defense's own statutory authority, were to

[[Page 50797]]

promulgate a rule that addressed military munitions on closed or

transferred ranges in a manner that was protective of human health and

the environment and that allowed for public involvement in addressing

these ranges, EPA would interpret the statutory definition of solid

waste as not including military munitions left on closed or transferred

ranges. The Department of Defense began development of this proposal,

the ``DoD Range Rule,'' in response to EPA's proposed military

munitions rule.

The final EPA military munitions rule was published on February 12,

1997 (62 FR 6622). In this final rule, EPA postponed action on whether

to identify as solid waste military munitions left on closed or

transferred ranges. EPA will reach its final decision on this issue

based on further analyses of comments received on the military

munitions rule and on the Department of Defense's final regulation

governing the cleanup of munitions on closed and transferred ranges. In

the final military munitions rule, EPA indicated that it is prepared to

address this issue under Federal environmental laws if the Department

of Defense does not promulgate the range rule or if EPA finds that the

range rule does not adequately protect human health and the

environment.

The Department of Defense is including transferring ranges within

the scope of the range rule, even though they were not included in the

scope of EPA's proposed military munitions rule, to more

comprehensively address this issue. The DoD proposed rule addresses the

unique explosives safety considerations associated with military

munitions (including unexploded ordnance (UXO)) and the need for

environmental protection, and it does so under DERP, 10 U.S.C. 172, and

CERCLA authorities rather than under RCRA.

III. Summary of Proposed Rule

This proposal identifies a process for evaluating response actions

on closed, transferred, and transferring military ranges. These

response actions fully encompass safety, are protective of human health

and the environment, and address risks based upon reasonably

anticipated future land use.

Closed ranges include those ranges that are within military control

but are put to a use incompatible with range activities. Transferring

ranges include those ranges associated with Base Realignment and

Closure (BRAC) activities and other property transfers to nonmilitary

entities. Transferred ranges include those being identified in the

Formerly Used Defense Site (FUDS) program.

The Department of Defense's proposed rule contains a phased

process, with accelerated response (AR) options as part of an early

phase. All closed, transferred, and transferring military ranges will

be identified. Then a site-specific range assessment (RA), in which an

AR involving various protective measures such as monitoring is

implemented, will determine if the protective measures are sufficient

to safeguard safety, human health, and the environment. If the

protective measures in and of themselves are not sufficient at a

specific military range, the range evaluation (RE) process will be

initiated. The RE process includes more detailed data collection to

support a site-specific safety risk assessment and a site-specific

human health and ecological risk assessment. At the completion of the

RA and/or RE, the Department of Defense will document its decision

after input from Federal and State regulators, American Indian tribes,

and the public. Recurring reviews will also be conducted. The final

phase is an administrative close-out of range responses that have been

completed.

In this proposed rule, the Department of Defense articulates the

nature and extent of its environmental response authorities under DERP,

10 U.S.C. 172, and CERCLA. It is doing so in the form of creating a

formal military range response process based on the general delegation

of response authority given to the Department of Defense by Congress

under DERP and by the President under CERCLA; the specific emphasis in

DERP and 10 U.S.C. 172 on limiting risks posed to human health and the

environment by military munitions (including UXO) and military ranges;

and the unique nature of the risks posed by military munitions and

military ranges, for which the Department of Defense alone has special

responsibility and expertise.

IV. Section-by-Section Analysis

A. Purpose, Scope and Applicability

This proposal applies to all the DoD components, such as the Office

of the Secretary of Defense, the Military Departments, the Chairman of

the Joint Chiefs of Staff, the National Guard Bureau (NGB), and the

U.S. Coast Guard (USCG). It applies to military munitions on closed,

transferred, and transferring military ranges previously or currently

owned by, leased to, or otherwise possessed or used by the United

States. These military ranges may not be under the administrative

control of the Secretary of Defense (or the Secretary of War prior to

1949); however, the munitions themselves remain under the jurisdiction

of the Secretary of Defense. For this reason, this proposal applies to

military munitions on closed, transferred, or transferring military

ranges where the range itself is under the administrative control of

another Federal agency or property owner, provided that the activity

that led to the munitions being on those ranges was in support of the

Department of Defense's national defense or national security mission.

For example, the national laboratories under the U.S. Department of

Energy (DOE) conduct research, development, training, and evaluation of

military munitions on behalf of the Department of Defense. Similarly,

USCG conducts training activities involving the use of military

munitions as part of their mission in support of the Department of

Defense's national defense mission. In these cases the munitions remain

under the jurisdiction of the Secretary of Defense, but the range may

fall under the administrative control of the Secretary of Energy or the

Secretary of Transportation. This rule uses the term ``Federal Land

Manager'' to refer to Federal agencies having or clearly anticipated to

receive jurisdiction, custody, or control of land affected by this

proposal. The scope of this proposal is thus not inconsistent with DERP

(10 U.S.C. 2701(c)), CERCLA, and EPA's military munitions rule.

In some instances, however, the United States does not own the

property utilized as a military range but instead leases or leased the

property, or otherwise possesses, possessed or used the property.

Additionally, the land could be owned by a State entity, as when

National Guard activities are conducted. For this reason, this proposal

would be applied to military ranges owned by an entity other than the

United States but where military activities, such as operation of a

range by the NGB,1 have occurred.

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\1\ The NGB will be the Department of Defense agency

responsible for evaluating and implementing response actions on

closed, transferred, and transferring military ranges that are

owned, leased, or otherwise possessed by a State National Guard if

NGB validates that the military range is or was used for a military

purpose. The DoD point of contact for military ranges owned or

leased by a State National Guard will be located at the NGB.

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This rule does not apply to any closed, transferred, or

transferring military ranges that are subject to response activities

pursuant to any specific statutory authority (e.g., Title X of Pub. L.

103-139, DoD Appropriations Act, 1994, Conveyance of Kaho'olawe Island,

Hawaii to the State of Hawaii,

[[Page 50798]]

where Congress has mandated special response actions, and a special

cleanup agreement was developed between the Secretary of the Navy and

the State of Hawaii) or pursuant to any agreements that were negotiated

prior to the effective date of this rule and that cover military

ranges. However, in either case, should any aspects of this proposed

rule be useful in making a given response more efficient or cost-

effective, then, upon mutual consent of the parties to the agreement,

nothing in this rule would prevent the response from being so adapted

for use at such a range. This rule also does not apply to ranges

located outside the United States, Puerto Rico, Guam, American Samoa,

the Commonwealth of the Northern Mariana Islands, or the Virgin

Islands.

Under CERCLA Section 120(e), the DoD component must enter into an

interagency agreement with the EPA Administrator ``for the expeditious

completion * * * of all necessary remedial action'' at a DoD site on

the National Priorities List (NPL). Where a closed, transferred, or

transferring range was identified and included in the interagency

agreement for an NPL site, the interagency agreement, even if

negotiated prior to the effective date of this rule, will govern. If

the interagency agreement provides that subsequently identified areas

of concern are included automatically in the interagency agreement,

then for purposes of Sec. 178.2(b)(2), such subsequently identified

areas of concern would be considered to be ``identified and included in

an interagency agreement for an NPL site.'' As stipulated in the

preceding paragraph, nothing would prevent the response from following

this rule instead, upon mutual consent of the parties to the agreement.

If the range was not ``identified and included in the interagency

agreement for an NPL site,'' this rule will be utilized. In some cases,

UXO investigations or response actions are underway on closed,

transferred, or transferring ranges at facilities where there are

unresolved issues concerning the scope of the interagency or Federal

facility agreement. This proposal does not apply to ongoing UXO

response actions at such facilities, unless mutually agreed to by all

parties to the interagency or Federal facility agreement.

Finally, this proposal does not apply to explosives or munitions

emergency responses, as defined in EPA's military munitions rule (62 FR

6622, February 12, 1997). In the final rule, EPA defines an explosives

or munitions emergency as all immediate response activities by an

explosives and munitions emergency response specialist to control,

mitigate, or eliminate the actual or potential threat encountered

during an explosives or munitions emergency. As defined by EPA, an

explosives or munitions emergency response may include in-place render-

safe procedures, treatment or destruction of the explosives or

munitions, and/or transport of those items to another location to be

rendered safe, treated, or destroyed. Explosives and munitions

emergency responses can occur on either public or private lands. The

Department of Defense may not be the first responder to a military

munitions emergency (for example, the local police or another Federal

agency may be the first to arrive on the scene).

Under EPA's military munitions rule, explosives or munitions

emergency response activities are exempted from most requirements under

RCRA. Because explosives or munitions emergencies may or may not

involve military munitions on a closed, transferred, or transferring

military range, the Department of Defense has decided to exclude these

activities from the scope of this rule and to conduct the activities in

accordance with the provisions of EPA's military munitions rule. The

fact that an area has been subject to an emergency response in the past

should not, however, preclude that area from being subject to the range

rule. The Department of Defense solicits comments on proposed

Secs. 178.1--178.3, which address the purpose, scope, and applicability

of this rule.

B. Definitions

This proposal includes definitions for several terms that clarify

the scope and applicability of this proposed rule. While the Department

of Defense is not separately defining the nine criteria from the

National Contingency Plan (NCP), the nine criteria mentioned in

Secs. 178.7(c) and 178.9(d) have the same meanings as the nine criteria

as set out in the NCP. The Department of Defense requests comments on

the following proposed definitions.

1. Military Munitions

This proposal includes a definition of military munitions in

Sec. 178.4(g). This definition is the same as the definition in EPA's

final military munitions rule (62 FR 6622, February 12, 1997).

2. Military Range

This proposal includes a definition of a military range in

Sec. 178.4(h). A military range is any land mass or water body that is

or was used for the conduct of training, research, development,

testing, or evaluation of military munitions or explosives. A military

range can be used for many purposes. Examples include missile,

artillery, aerial bombing, tank, naval surface warfare, mortar,

antiaircraft, grenade, small arms, demolition, and multipurpose ranges

where combined arms are utilized. The definition in Sec. 178.4(h) is

the same as EPA's definition in the final military munitions rule (62

FR 6622, February 12, 1997), except that additional information is

provided on activities and locations that do not meet the definition of

a military range.

A classic setup of a live fire area military range consists of a

central area called the ``impact area.'' The impact area varies in size

depending on the type of military munitions employed. The impact area

contains the targets that are fired upon and thus poses the greatest

potential safety risk due to the concentration of military munitions

employed (i.e., the impact area will normally contain the greatest

concentration of UXO). Surrounding the impact area is a buffer zone.

This area is not intentionally fired into but may include some UXO;

thus military activities are not conducted in this area. Outside the

buffer zone are the firing/release points from which military munitions

are employed (e.g., fired, dropped, placed).

Another example of a military range includes designated land and

water areas set aside for the purpose of training and conducting

``maneuvers.'' These maneuver areas are used to conduct military

exercises and create an environment that simulates an area of conflict

or an active war zone. During these maneuvers, training aids and

military munitions simulators are used and expended. Examples are

training ammunitions, artillery simulators, smoke grenades,

pyrotechnics, mine simulators, and riot control agents used to simulate

a chemical agent attack. Even though these training aids and simulators

are used to create an environment that is safer than a war or open

conflict, they may still pose an explosives safety concern. For this

proposed rule, the definition of military ranges includes current and

former designated maneuver areas on land and water.

Airspace and water or land areas underlying airspace used for

aircraft-related training, testing, or research and development where

military munitions were not used do not fall within the definition of

military range solely as a result of the aircraft-related activities.

Examples of airspace and underlying water or land areas that would not

be considered a military range for purposes of this rule include areas

used for air-to-air training, electronic scoring site ranges, military

operations areas, and

[[Page 50799]]

military training routes (MTR). Electronic scoring site ranges provide

bomber aircraft with a weapon drop score without the aircraft's

actually releasing any military munitions. Military operations areas

are areas that separate certain military activities (e.g., air-to-air

training) from civil and military aircraft traffic under instrument

flight rules. MTRs are used to conduct low-altitude navigation and

tactical training in excess of 250 knots air speed below 10,000 feet

mean sea level altitude. No military munitions are dropped or fired in

MTRs.

A water range is another example of a military range. CERCLA and

DERP address releases or threats of releases of hazardous substances,

pollutants, and contaminants into the ``environment,'' which is defined

in CERCLA as including navigable waters, the water of the contiguous

zone, and ocean waters.2 In general, in 33 CFR 2.05-1 to

2.05-35, the terms ``navigable waters,'' ``contiguous zone,'' and

``ocean waters'' are defined as being, respectively, the internal

waters of the United States and its coastal waters out to a distance of

3 nautical miles, 12 nautical miles from the U.S. coast, and 200

nautical miles from the U.S. coast. As a result, the DoD ranges located

on water courses within these three zones are likewise subject to this

proposed regulation.

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\2\ CERCLA Section 101(8) defines ``environment'' as including

``(A) the navigable waters, the water of the contiguous zone, and

ocean waters of which the natural resources are under the exclusive

management authority of the United States under the Magnuson Fishery

Conservation and Management Act of 1976, and (B), any other surface

water, ground water, drinking water supply, land surface or

subsurface strata, or ambient air within the United States or under

the jurisdiction of the United States.''

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Over the life of a military range, the types and quantities of

military munitions expended on the range vary greatly due to changes in

mission and technology. An important characteristic of military ranges

is that their use and/or the military munitions employed normally

changes over time. As technology improves and weapons systems are

replaced, new types of military munitions are developed and employed.

Because of limited land availability and safety requirements, new

ranges are often constructed on top of old ranges. Thus a variety of

military munitions (including UXO) exist on a military range because of

the different types of weapons that have been employed on a particular

range during its life cycle. Changes in training needs over the years

also contribute to the occurrence of several classes and types of

military munitions at military ranges.

Historic battlefields are not covered by this proposed definition

of a military range. Battlefields were used for actual combat and thus

were not used for training, research, development, testing, and

evaluation. The Department of Defense has transferred areas that were

historic battlefields and may contain UXO from past conflicts. Even

though these areas are not ``military ranges'' and are not covered by

this proposal, the Department of Defense will continue to provide

explosive ordnance disposal (EOD) support to civil authorities for any

UXO discovered on historic battlefields.

3. Closed Range

This proposal includes a definition of a closed range in

Sec. 178.4(d). This definition was provided in EPA's proposed military

munitions rule (60 FR 56476, November 8, 1995) and is consistent with

the final military munitions rule (62 FR 6622, February 12, 1997).

Closed ranges are ranges that have been taken out of service and either

have been put to new uses that are incompatible with range activities

or are not considered by the military to be potential range areas.

Examples of incompatible use may include the construction of a

permanent building not compatible with range operations or training,

such as houses, schools, hospitals, clinics, commissaries, libraries,

and other such buildings. Closed ranges remain under the control of the

military. Closed ranges would include those ranges that are on Federal

lands or otherwise possessed by the military, determined at the

respective military department's Secretariat-level position to be

closed, and where future use is incompatible with range activities.

Areas that meet the definition of a closed range will be regulated

under this rule.

4. Transferring Range

This proposal includes a definition of a transferring range in

Sec. 178.4(n). Under that definition, a military range that is proposed

to be leased, transferred, or returned from the Department of Defense

to another entity, including Federal entities, is a ``transferring

range.'' To qualify as a military range ``proposed'' to be leased,

transferred, or returned, within the meaning of this rule, the proposal

must be concrete and specific. Further experience likely will be needed

to develop and clarify this definition, particularly the requirement

that a proposal be ``specific and concrete.'' DoD notes that where a

Federal agency might receive jurisdiction, but the transfer is not

sufficiently concrete or specific to be ``proposed'' within the meaning

of the definition, the agency may sit on the project team for

informational purposes only, and such participation is encouraged.

A number of military ranges are proposed for transfer outside of

the military control. Transferring ranges include military ranges

associated with the BRAC program, as well as any other property

transactions in which military ranges are transferred to nonmilitary

entities. It is important to note that, immediately prior to becoming a

transferring range, a military range could be considered closed,

inactive, or active. Transferring ranges remain under military control

until they have been officially transferred to another party. Transfer

may be by deed or lease, or by return under the terms of a withdrawal,

special-use permit or authorization, right-of-way, public land order,

or other instrument under which the Department of Defense used the

property. An active range will not be considered to be a ``transferring

range'' until the transfer is imminent. While an active or transferred

range is easier to identify, classifying a military range as

``transferring'' is more complex, and is based on multiple site-

specific factors. Reasonably anticipated land uses for the range

property will be identified and agreed to prior to the land transfer.

In some situations, the Department of Defense may not transfer a

military range or a portion of the range if during the assessment it is

determined that the risks cannot be reliably managed or reduced (unless

such transfer is congressionally mandated). If technology limits the

range response and thus restricts the use of the land, but later

improvements in technology allow for a change in the designated land

use, the Department of Defense is responsible for conducting a later

response, if doing so is consistent with the land transfer agreement

and reasonably anticipated land uses that were originally identified.

Areas that meet the definition of a transferring range will be

regulated under this rule. EPA's military munitions rule does not

address transferring ranges; the Department of Defense has included a

definition in this proposal to more comprehensively address the issue.

5. Transferred Range

This proposal includes a definition of a transferred range in

Sec. 178.4(m). A transferred range is a military range that has been

released from military control. FUDS are areas that were once

controlled by the Secretary of Defense and may have portions that were

used as military ranges. Transferred ranges

[[Page 50800]]

include those being identified in the FUDS program. These areas could

have been transferred to other Federal agencies (U.S. Department of the

Interior (DOI), DOE, etc.), State or local governments, or private

citizens.

The transfer may have been by deed or lease, or by return under the

terms of a withdrawal, special-use permit or authorization, right-of-

way, public land order, or other instrument under which the Department

of Defense used the property. For example, public lands may be

federally owned lands under the jurisdiction of the Secretary of the

Interior and administered by the Bureau of Land Management (BLM). These

lands may be withdrawn (by statute, executive order, or public land

order) from the operation of the public land laws and reserved for

other Federal agencies' uses, including the Department of Defense.

Agencies holding withdrawn public lands that they no longer need are to

file with BLM a notice of intent to relinquish such lands (43 CFR 2372;

41 CFR 101-47.202-6). The BLM will then determine if the lands are

suitable for return to the public domain for administration under the

public land laws. If the lands are no longer suitable for return to the

public domain, they will be processed as ``real property'' under the

Federal Property and Administrative Services Act of 1949, as amended

(40 U.S.C. 472), or under the property management and disposal

provisions of the defense base closure laws, as applicable.

6. Inactive Range

This proposal includes a definition of an inactive range in

Sec. 178.4(f). As defined in EPA's military munitions rule (62 FR 6622,

February 12, 1997), an inactive range is ``a military range that is not

currently being used, but that is still under military control and is

considered by the military to be a potential range area, and that has

not been put to a new use incompatible with range activities.'' The

Department of Defense has military range areas that have been used in

the past for training, research, development, testing, or evaluating

military munitions. Inactive ranges are held in reserve in case the

Department of Defense has a change in mission that requires additional

range areas. Some inactive ranges remain under military control to

protect national security, as the activities conducted on them were

classified. Therefore, inactive ranges would not be considered

``closed'' under this rule. Inactive ranges are not covered by this

proposed rule or EPA's military munitions rule, but they do fall under

existing environmental and DoD regulations if the source of possible

contamination is other constituents, not military munitions, or if

contamination from range activities is moving off the range. Active and

inactive ranges will be addressed in a forthcoming DoD policy to be

issued by DDESB on proper safety-based management techniques for such

sites. The Department of Defense will issue guidance on when an

inactive range should be classified as a closed range. Factors in this

decision-making process include future testing, training, and new

weapons development needs, as well as needed range rotation.

7. Active Range

This proposal includes a definition of an active range in

Sec. 178.4(b), which is the same as the definition of an active range

in EPA's military munitions rule (62 FR 6622, February 12, 1997). The

scope of the DoD range rule is limited to closed, transferred, and

transferring ranges; a definition of active ranges is included in this

proposal for the sake of clarity.

8. Unexploded Ordnance

This proposal includes a definition of UXO in Sec. 178.4(o). This

definition is the same as the definition of UXO in EPA's military

munitions rule (62 FR 6622, February 12, 1997). Military munitions are

designed to be safe during storage and handling operations and will not

normally detonate until an item is actually employed. A military

munition becomes UXO only after it has been employed and failed, in

total or in part, to function properly. Due to the complex design of

many military munitions and the large number of military munitions

employed, some of them are almost certain to become UXO. The highly

likely presence of UXO on closed, transferred, and transferring

military ranges creates a safety risk.

9. Other Constituents

This proposal includes a definition of other constituents in

Sec. 178.4(j). Due to their complexity and varied functions, military

munitions may contain many other constituents that may be a source of

concern on military ranges.

Military munitions can be composed of propellants, explosives, and

pyrotechnics (PEP); chemical agents; metal parts; and other inert

components. When munitions are employed on a range, the PEP components

generally are consumed, leaving behind metal parts and other inert

components that may be distributed in small pieces across a large area.

The risk caused by the metal parts and other inert components will

depend on the types of materiel used, the susceptibility of this

materiel to leaching and other transport mechanisms, the physical

characteristics of the range (the climate, amount of rainfall, soil

type, etc.), and the quantity of military munitions employed. These

components of military munitions, if released into the environment, are

included in the definition of other constituents.

A small percentage of military munitions employed on military

ranges fail to function as intended, which can result in UXO remaining

on the range. UXO can pose a safety hazard (as discussed in Section

IV.C.1. of this preamble, Safety) and/or an environmental concern. PEP

compounds in military munitions could be released to the environment

when the munitions casing is damaged or deteriorated. To a lesser

extent, metal or other materials could build up over time in the

environment. While UXO itself is not considered an other constituent,

compounds released from the UXO are included in the definition of other

constituents. At significant concentrations, other constituents may

present explosives safety risks.

Other constituents that may be identified on military ranges also

could include fluids from vehicles used as targets or from activities

that occurred prior to the area's being used as a military range (e.g.,

landfill, industrial operations). Other constituents that are present

on a military range and that fall under other regulatory authorities

may be addressed by the appropriate agency (see Section IV.F.1.b. of

this preamble, Relationship to Other Laws, and Section V, Discussion of

Other Major Alternatives).

10. Federal Land Manager

This proposal includes a definition of Federal land manager in

Sec. 178.4(e). DERP applies to property ``owned by, leased to, or

otherwise possessed by the U.S. and under the jurisdiction of the

Secretary [of Defense]'' (10 U.S.C. at 2701(c)). For simplicity, the

Department of Defense has used the term ``Federal land manager''

throughout the rule to refer to a Federal agency that has received or

is clearly anticipated to receive jurisdiction, custody, or control

over the property. The phrase ``clearly anticipated to receive

jurisdiction'' refers to situations where the transfer to the Federal

agency is statutorily established; legally required; incorporated in a

legislative proposal formally supported by the Administration;

designated under the land reuse plan; or where the transfer to the

Federal agency is otherwise recognized as being clearly anticipated,

[[Page 50801]]

such as where both the Federal agency and the DoD component have agreed

that such transfer will take place. Where a Federal agency has been

proposed to receive jurisdiction, custody, or control of a former

range, but the agency is not yet a Federal land manager as defined in

this rule, the agency may sit on the project team for informational

purposes only.

11. American Indian Tribe

This proposal includes a definition of American Indian tribe in

Sec. 178.4(c). This term is used in the proposed DoD range rule to

describe Native American tribes and Native Alaskan villages that meet

specific criteria so that they can be afforded substantially the same

treatment as States under this rule, and thus receive a concurrence

role in the range response process. The governing body of the American

Indian tribe must be federally recognized by the Department of

Interior; have an appropriate tribal governing body that performs

health, safety, or environmental functions; and have real property

interests, as defined in Sec. 178.4(l) of this rule, over some or all

of a closed, transferred, or transferring range at which a response,

including pre-response activities, is ongoing or contemplated.

12. Property Owner

This proposal includes a definition of a property owner in

Sec. 178.4(l). The term ``property owner'' as used in this proposal

refers to non-Federal entities that now own property that is a closed,

transferred, or transferring military range, and to Native American

tribes and Native Alaskan villages that own property or land held in

trust by the United States for that tribe or village or its individual

members. ``Property owner'' also includes any non-Federal entity

legally entitled to control access to the property, to the exclusion of

the right of the legal owner to control access, if known to the

responsible DoD component. This situation may exist if the person

legally entitled to control access to the property is different from

the current legal owner (e.g., in lease situations).

C. Summary of Challenges

Military munitions are designed to injure or kill people and/or to

damage or destroy property. Thus, during any environmental response

activity, the presence or suspected presence of military munitions

creates unique challenges due to explosives safety concerns. Before

undertaking any response action on a closed, transferred, or

transferring military range, the Department of Defense must first

consider the explosives safety risks inherent in locating,

investigating, evaluating, and responding to military range areas where

military munitions are known or suspected to be present. The explosives

safety risk is equally great regardless of whether military munitions

(including UXO) or other constituents are being addressed in the

response action. Response personnel, even those specially trained to

deal with the explosives safety hazards associated with military

munitions, must not be exposed to an unreasonable explosives safety

risk in order to address less compelling environmental concerns. The

risk to response personnel increases as the density of military

munitions, e.g., UXO, increases. Additionally, rough terrain and thick

vegetation restrict visibility and mobility, thereby substantially

increasing the explosives safety risks associated with response

activities. Response activities are made more difficult and dangerous

because technology is not yet sophisticated enough to ensure positive

detection, identification, and subsequent removal of all military

munitions in any given area.

1. Safety

The Department of Defense is committted to the management of safety

risks associated with exposure of the public and clearance personnel to

military munitions. As discussed throughout this rule, the explosives

safety risks from locating and clearing unstable materials such as UXO

are very high. The investigation and restoration activities associated

with other constituents present similar risks, as they usually occur in

areas that also contain UXO. The Department of Defense is the

recognized expert in the management of these risks. Federal, State, and

local regulators typically seek DoD's expertise in safely managing

military munitions and other ordnance discovered at non-DoD sites.

Unless the explosive risk is first eliminated or at least reduced,

catastrophic injury or fatalities may result from any response

activity.

Typical military munitions/UXO on military ranges may include:

bombs (up to 2,000 pounds), artillery, mortar, aircraft cannon, or

tank-fired projectiles (20-millimeter through 16-inch), dispensed

munitions, submunitions, rockets, guided missiles, grenades, general

demolition materials, bulk explosives, pyrotechnics, torpedoes, mines,

small arms ammunition, and chemical munitions. Military munitions are

designed to be safe during storage, handling, and transportation. The

fuzes used with these items also have built-in safety features to

preclude arming of the munition until actual employment (firing,

placing, etc.) of the item. It is not until after the munition has been

employed and failed to function (totally or in part) that it becomes

UXO.

Although the fuze is the most sensitive portion of the UXO, the

filler may pose an even greater danger to human health and the

environment. By their nature, high-explosive fillers present risks.

Explosives may deteriorate over time to form sensitive crystals that

could detonate if subjected to heat, shock, or friction. Chemical

munitions contain chemical agents that present additional safety risks.

High-explosive fillers, deteriorated explosives, and chemical munitions

are a few examples of military munitions where the filler itself

requires special safety consideration, even if the fuzing mechanism is

no longer capable of firing.

Fuzes are designed to initiate a train of fire or detonation in

ordnance by an action such as mechanical or electronic timing,

electrical or mechanical energy, impact, radar, chemical, pyrotechnic,

hydrostatic pressure, etc. Once safety devices (such as safety pins,

safety blocks, and arming wires) are removed, a fuze can require one or

more of the following forces to fully arm: acceleration, deceleration,

setback, or centrifugal force. EOD personnel cannot visually determine

if a fuze is armed. Therefore a fuze must be considered armed and ready

to fire if the right force is applied. For example, a clockwork

mechanism fuze that has armed but failed to function contains a firing

pin under spring tension which, if disturbed, could fire. Also, many

military munitions pose even more serious risks because they have a

secondary system that will, should the munition fail to operate as

intended, detonate the munition if it is disturbed in any way.

Addressing the unique problems associated with UXO on military

ranges requires that knowledgeable UXO personnel and specialized safety

procedures be used. The acute hazard associated with the presence of

armed and potentially deadly UXO is the primary factor that drives the

sequence of investigative and remedial actions. In essence, acute

safety concerns direct and determine the sequence of site activities.

Once the explosives hazards are identified and addressed, further

response actions may occur. In some cases, normal activities may be

delayed (e.g., drilling monitoring wells in UXO areas), or additional

requirements may have to be met (e.g., UXO surface

[[Page 50802]]

clearance, followed by downhole magnetometry at regular intervals to

detect subsurface ordnance present in the area where a well is being

drilled). The most acute risk is to the response personnel who come

near the UXO. In some cases, the risk may be so high as to preclude a

clearance action.

2. Current Technological Capabilities

a. Military munitions/UXO detection: Military munitions detection,

which is often referred to as ordnance detection, has been undertaken

since the first military munitions were found on the battlefield. The

clearing of military munitions requires personnel to have the

capability to safely and precisely locate these items regardless of

whether they are lying on the surface, covered with heavy overgrowth,

buried deeply in the soil, or located underwater and potentially buried

in the sediments.

Several recent tests and evaluations have identified shortfalls in

UXO detection technology. Detection technologies can be hampered by the

depth of penetration of the munition. The penetration depth is

dependent on the munition's velocity upon impact, size, weight, shape,

angle of entry, and the type and composition of soil. Obvious physical

signs made by military munitions, such as entry holes, are quickly

erased by natural weather processes or are often destroyed by other

impacting ordnance. The growth of grass and brush compound the problem

by covering munitions lying on the surface. Since many of the ranges

covered by this proposed rule have not been active for many years,

vegetation often hinders the ability to detect the munitions. Methods

to address the problems of dense vegetation, such as deforestation and

controlled burns, can cause other environmental problems. Underwater

items often are buried by silt or covered with marine growth. In

addition, military munitions on water ranges can be greatly affected by

coastal storms and tidal actions that can immerse the military

munitions in a bed of sediments or uncover military munitions that were

previously embedded in sediments. Furthermore, the depth or condition

of a water range may make analysis, much less retrieval, effectively

impossible, or may pose an unreasonable risk to the health and safety

of range response personnel.

In summary, items that affect UXO detection include: munition size,

composition, depth, and orientation; soil composition and geology;

vegetation and terrain; and background interference from metal scrap.

Strides will have to be taken to eliminate the high degree of

uncertainty associated with UXO detection. Safe clearance operations

require technologies that can detect and determine the precise location

of a broad spectrum of military munitions in a wide variety of soil and

surface conditions, both on land and under water. Safe clearance

operations also require the capability to internally examine items to

identify hazardous contents, including fuzing as well as filler

material.

Detection and location of military munitions depend primarily on

the ability to distinguish their physical characteristics from those of

the surrounding environment. Characteristics that have the most impact

on the effectiveness of current detection and removal technologies

include the materials used in the ordnance case, fuzing, and filler.

The majority of casings are constructed of ferrous (i.e., iron-

containing) metal. Nonferrous metals and plastics, however, are used

for some submunitions and land mines. Nonferrous military munitions

make detection much more difficult and subsequent clearance more

dangerous. Fuzing systems include combinations of ferrous and

nonferrous metals, plastics, electrical circuits, and small amounts of

explosive materials. Filler materials include a variety of high

explosives, chemical agents, pyrotechnics, and inert items such as

concrete and sand.

Common methods used to detect military munitions include visual

searches, magnetometers, electromagnetic induction (metal detectors),

and ground-penetrating radar (GPR). A visual search for military

munitions is restricted to the surface and often is hindered by

vegetation and terrain. Magnetometers are the most commonly used form

of detecting military munitions below the surface and can be adapted

for underwater use. Low-sensitivity magnetometers have a limited depth

of detection capability, while high-sensitivity magnetometers have a

large number of false detections. Magnetometers can only detect

munitions that contain ferrous metal. Metal detectors can locate both

ferrous and nonferrous metallic objects and can be adapted for use

under water; however, metal detectors can only detect munitions that

are located very near the surface. GPR can collect rough images of

buried metallic and nonmetallic munitions, but its effectiveness is

severely limited in certain soil conditions. In general, the material

used in the construction of military munitions, the munition's size and

depth, and the soil's composition all affect the effectiveness of

available technology.

(1) Advanced technology demonstrations. Congress authorized and

appropriated funding in fiscal years 1993 to 1995 to conduct unexploded

munition technology demonstrations. In response, the U.S. Army

Environmental Center established the UXO Advanced Technology

Demonstration (ATD) Program with technical support from the U.S. Naval

EOD Technology Division. The objective of this program was to evaluate

and identify innovative, cost-effective, commercially available systems

for the detection, identification, and removal of UXO. These

demonstrations have established a technology baseline for UXO detection

and removal. In addition, the ATDs have progressively monitored state-

of-the-art UXO technology advancements.

There are four separate and distinct projects associated with the

multiyear Congressional funding:

(1) Jefferson Proving Ground (JPG) Phase I ATD, conducted during

summer 1994.

(2) JPG Phase II ATD, conducted during summer 1995.

(3) Live Site ATDs, conducted during summer 1995.

(4) JPG Phase III ATD, conducted during summer and fall 1996.

The JPG Phases I through III ATDs were conducted at a controlled

test site, which contained numerous types of inert ordnance precisely

located at various depths and orientations. The Live Site ATDs were

conducted at five sites across the United States that contained live

ordnance. Commercial companies were invited to demonstrate their

system's ability to detect, characterize, or remotely excavate UXO.

To date, more than 60 technologies have been demonstrated and

evaluated as part of the ATD program. The demonstrators represented

airborne, ground vehicle, and man-portable platforms; magnetometer,

GPR, electromagnetic induction, and infrared sensors; target processing

software; and excavation technologies.

To date, technology performance ATD results have shown systems

exhibiting ordnance detection capabilities ranging from 0-85%. JPG

Phase III results, although not yet published and released, once again

indicate increased detection performance. While commercial technology

has exhibited less than desirable capabilities (especially evidenced

during JPG Phase I), private industry has made strides to identify

technology performance weak points. Phases II and III show evidence of

increased private industry teaming efforts, commercial research and

development efforts, and clearer understanding of government needs.

[[Page 50803]]

Combined, this translates into enhanced systems and capabilities.

However, throughout all ATDs, UXO detection technology continues to

exhibit extremely high false alarm rates and minimal or no

discrimination ability. Systems are unable to determine if a detected

anomaly is ordnance or a piece of scrap metal. For example, if 100

ordnance items are located on a range scheduled for remediation, a

technology may be able to detect 85 of the 100 UXO items. However, the

demonstrator would also falsely identify over 200 other locations. For

excavation purposes, this translates into many empty holes and

unnecessary excavation.

(2) Other assessments of UXO technology. The Army Corps of

Engineers recently evaluated UXO detection technology applications at

33 specific sites. The Army Corps of Engineers stated that, in general:

[T]hree [main types of UXO sensor] technologies [(magnetometry,

infrared, and ground-penetrating radar)] for the detection and

location of [UXO] tend to dominate. While other evolving technology

is promising, there is considerable development yet remaining. The

most important observation, however, is that there is no single

technology that can accomplish this task unambiguously. For all

their merits, neither magnetometers, GPR, nor [metal detectors]

alone can assure more than a modicum of success probability. While

each is a powerful technology with distinct advantages, none has the

breadth of capability to interpret all of the phenomena that are

typically encountered in the search for [UXO]. This includes the

capability to discriminate [UXO] from background artifacts, the

ability to resolve individual entities below-ground, and the ability

to determine depth below the surface independent of

geology.3

\3\ U.S. Army Corps of Engineers, ``Sensor Technology Assessment

for Ordnance and Explosive Waste Detection and Location,'' page 134

(March 1, 1995).

---------------------------------------------------------------------------

Of the 28 systems the Army Corps of Engineers evaluated, only 5

were rated above average. Four were rated as average, while 19 were

rated as below average. The Army Corps of Engineers concluded that

``the vast diversity of ordnance * * * coupled with the very nature of

its designed use * * * renders the detection and location of [UXO] a

very difficult task.''

Additionally, the DoD Inspector General has reviewed UXO detection

technologies and stated that ``the technology currently employed to

detect and remove ordnance is primitive and labor intensive.''

4 In a 1994 report, the DoD Inspector General stated:

\4\ The Department of Defense, Inspector General, Memorandum for

Deputy Under Secretary of Defense (Environment Security), ``Review

of Policies and Procedures Guiding the Cleanup of Ordnance on

Department of Defense Lands,'' page 35 (November 22, 1994).

---------------------------------------------------------------------------

To date, there has been limited success in identifying UXO on or

near the cleared surface. Detecting and identifying UXO underground

present a much greater challenge * * *. We found that relatively

primitive detection and ``pick and shovel'' removal methods are

typically used for ordnance and explosive waste cleanup. The basic

approach is to remove as much vegetation as possible, mark off

grids, then use crews with hand held magnetometers to ``sweep'' the

area. The magnetometers will detect any metal to a maximum depth of

approximately three feet. When a metal object is detected, it is

exposed by careful hand excavation. Most of the objects identified

through that procedure are simply non-explosive scrap metal.

However, when UXO is found, it is either destroyed in place or

removed to a safe location for destruction. Those procedures are

usually labor intensive and thus very expensive. The dangerous

nature of the work requires the use of highly trained Explosive

Ordnance Disposal personnel.5

---------------------------------------------------------------------------

\5\ The Department of Defense, Inspector General, Memorandum for

Deputy Under Secretary of Defense (Environment Security), ``Review

of Policies and Procedures Guiding the Cleanup of Ordnance on

Department of Defense Lands,'' page 35 (November 22, 1994).

The Inspector General concluded that UXO cleanup operations were

``relatively simplistic, labor intensive, sometimes environmentally

disruptive, and expensive.'' 6 Thus, despite the efforts

placed on developing effective detection technology, UXO detection

technology cannot currently support a totally efficient response

effort.

---------------------------------------------------------------------------

\6\ The Department of Defense, Inspector General, Memorandum for

Deputy Under Secretary of Defense (Environment Security), ``Review

of Policies and Procedures Guiding the Cleanup of Ordnance on

Department of Defense Lands,'' page 42 (November 22, 1994).

---------------------------------------------------------------------------

b. Clearance technology and activities: In earlier years, military

munitions generally were detonated in place. Even now, detonation in

place is a primary response when moving a munition presents a safety

risk. Section IV.C.1 of this preamble, Safety, describes some of the

basic elements that affect the explosives safety risk of UXO. To

accomplish range clearance, a series of complex detection and location

tasks must be undertaken, such as locating surface and subsurface

objects, distinguishing if the object is or may be a munitions item,

and identifying the type of device and the type of filler used. Once

located, there are two types of clearance methods available: point

recovery and area recovery. Point recovery relies heavily on

technologies to locate possible ordnance items and uses current

construction, mining, and drilling technologies to unearth the detected

objects. Area recovery is the removal and sifting of all soil to a

certain depth, utilizing heavy equipment to remove ordnance items and

debris.

The safe excavation of buried military munitions requires the

removal of large quantities of soil. As the clearance depth increases,

fewer military munitions are found, but the items that are found

typically contain large amounts of explosives. The precise location of

the buried items becomes more difficult, so their recovery often

becomes a major excavation effort. Both methods are labor intensive,

time-consuming, and expensive. They also present a high risk of injury

or death to clearance personnel due to the larger amounts of explosives

in the buried munitions. Results from the demonstration at JPG showed

that robotic excavation of located UXO is feasible. Robotic responses

are time-consuming, however, and could have a significant adverse

impact on the speed of response operations if a large quantity of UXO

requires excavation.

c. Other constituents: This rule addresses military munitions and

other constituents on a military range. The Department of Defense

recognizes that other constituents include materials that are uniquely

military in nature. EPA has not established a scientific environmental

baseline relative to fate, transport, and toxicological impact of these

materials, or the degradation products on the environment. Although

some scientific data have been collected on some of these materials on

a site-specific basis, these data cannot be directly extrapolated to a

national risk analysis profile. The Department of Defense will need to

gain a better understanding of the adverse environmental impact, if

any, of these uniquely military materials through ongoing research and

development. In order to ensure the most effective response to other

constituents that are uniquely military materials on ranges, the

Department of Defense will prepare and implement an overall technology

research and development plan based on information needed to complete

the range hazards analysis and range response prioritization.

3. Technology Development

The Department of Defense recognizes the potential negative

environmental impacts presented by UXO and is committed to reducing the

quantity of UXO generated to the greatest extent possible. This

commitment is evidenced across the life-cycle management of military

munitions. The UXO reduction effort begins during the design phase of

[[Page 50804]]

new munitions, where attempts to produce ``green munitions'' by

eliminating toxic components are underway. Significant research and

development efforts are also underway to find environmentally

acceptable ways to dispose of or destroy munitions at the end of their

life cycle. For example, the Department of Defense now is fielding a

UXO tracking system based on geo-prepositioning technology. This

tracking system is designed to provide range managers with the

location, type, and quantity of UXO and will assist them in reducing or

eliminating unidentified UXO during routine range sweep operations.

Finally, fully recognizing the limits of current technology to reliably

find subsurface UXO, the Department of Defense is committing resources

to develop, in concert with the private sector, new and emergent

technologies that will improve the ability to locate and eliminate UXO.

Therefore, the Department of Defense sees a pressing need for

additional research in these areas. This is particularly true when

safety considerations prevent entering the range to conduct site-

specific investigations of other constituents or when the available

methods to address UXO, such as a large-scale excavation, are known to

have serious environmental impacts.

While detecting, approaching, detonating, and even in some cases

excavating and moving UXO is possible, the process for assessing ranges

and for evaluating alternatives for site-specific responses provides

only limited opportunity for technological advancement. Due to the

current need for advancement in these areas, both here in the United

States and throughout the world, the Department of Defense believes

that there must be a commitment to conducting research and technology

development in these areas separate from the actions being taken at

specific ranges. Since fiscal year 1993, Congress authorized and

appropriated $25 million for a DoD program at JPG to identify and

demonstrate the ``state-of-the-art'' in UXO detection and remediation

technologies. The JPG program did establish what state-of-the-art

detection technology existed and highlighted areas in need of future

development. Congress has authorized and appropriated an additional $5

million (beginning in fiscal year 1997) to continue the ATD Program,

JPG Phase IV.

Opportunities to evaluate and implement new technologies can occur

anywhere from range assessments to recurring reviews. The Department of

Defense is soliciting recommendations on means to integrate research

and technology development into the range response program as outlined

in this proposal.

Realizing that the only true way to eliminate UXO is to reduce the

use of live munitions, the Department of Defense is focusing additional

efforts on greater use of simulators, practice munitions, or less-than-

lethal technology to reduce the quantity of UXO being introduced on

active ranges. It is a fact, however, that to prepare for war, the

nation's servicemen and women must train with live munitions. The

Department of Defense has therefore committed to minimizing to the

greatest degree possible the introduction of UXO into the environment

through aggressive range management practices.

4. Magnitude

Military munitions have been expended in the United States since

pre-Revolutionary War times. Employment of military munitions has

always led to some percentage of the munitions not functioning as

intended, resulting in the presence of UXO. Through the end of the

1800s, the bulk of military munitions was expended in the United States

during armed conflicts. Although no battles other than in Hawaii,

Alaska, Guam, and several other territories have been fought on U.S.

soil in the 20th century, military training and weapons development to

deter and prepare for armed conflicts have resulted in the presence of

military munitions at ranges throughout the country. During both World

Wars, extensive defenses were established along the Atlantic and

Pacific coasts. Many of the military installations established to train

and support U.S. armed forces during World War II continued to use

military ranges throughout the Cold war era. As the extent of the U.S.

military force's structure varied throughout the 20th century, military

installations have expanded or decreased operations, and some have

ceased operating entirely.

a. Transferred ranges: Many transferred ranges are a subset of

FUDS, but not all of them qualify for the FUDS program. The FUDS

program has identified approximately 8,000 former DoD properties. Of

these, fewer than 1,000 have the potential to be classified as

transferred ranges. The largest amount of acreage affected resides on

the 169 sites identified on DOI-controlled lands. The current estimate

is that more than 7 million acres of DOI property potentially contain

military munitions. A large number of these DOI sites are suspected of

having been used as military ranges during the World War II era. The

Department of Defense may identify transferred ranges through archive

searches, aerial photography, interviews with past employees, and other

available sources of documentation.

b. Transferring ranges: Transferring ranges are frequently the

result of closure decisions under BRAC. The Department of Defense also

leases properties from other parties for use as military ranges. When a

decision is made to terminate a lease, the affected range will be

classified as a transferring range. In addition, the Department of

Defense can excess property that may contain military ranges. However,

the Department of Defense has established policies over the past decade

to prevent the release from DoD control of additional properties

containing military munitions that may pose risks to the public.

c. Closed ranges: Closed ranges are located on active military or

National Guard installations. Military ranges on active military

installations can be divided into three categories: active ranges that

are currently being used to train or test military munitions; inactive

ranges that are being kept in the range inventory in case conflict

would break out requiring an increased level of training in the future;

and closed ranges that are no longer needed for training or testing by

the military and have been converted to an incompatible use. The

Department of Defense began to keep records of inactive and active

ranges in the mid-1970s. The Department of Defense recognizes the need

to identify and maintain an inventory of closed ranges. The Department

of Defense may identify closed ranges through archive searches, aerial

photography, interviews with past employees, and other available

sources of documentation.

D. Overview of the Range Response Process

1. Introduction

Addressing the unique problems associated with military munitions

and other constituents on military ranges demands an approach that

modifies the one taken under the CERCLA response and RCRA corrective

action programs. The most significant reason for this difference is the

absolute need to minimize explosives safety risks in planning,

conducting, and implementing response actions. This is because the

acute hazards associated with military munitions (especially UXO) are

the primary factor driving the scope, sequence, and types of actions

that are possible on the range. These concerns are unique to military

ranges

[[Page 50805]]

in that most actions on CERCLA response or RCRA corrective action sites

do not need to consider an explosion hazard posed by the presence of a

munition or explosive. For example, installation of a monitoring well

at most CERCLA sites does not require surveying the access route for

buried military munitions or conducting a magnetometer survey as the

well is drilled. Another example where range responses require a

different approach is in balancing the risks and impacts of addressing

the military munitions and/or UXO and other constituents against the

risks involved in not taking an action. Minimizing explosives safety

risks while achieving the proper balance between these competing

concerns is the goal of the program described in this proposal.

The requirements of 10 U.S.C. 172, DERP, and CERCLA to respond to

environmental risks at ranges provide a basis for the Department of

Defense to develop a response program that addresses the same factors

as are applied at CERCLA response or RCRA corrective action sites where

military munitions or UXO are not present, but with a different and

overarching emphasis: to protect not only the public and environment in

general but the response personnel as well. In developing this

proposal, the Department of Defense sought to be as consistent as

possible with the overall process used in CERCLA response and RCRA

corrective action programs. In taking this approach to developing this

proposed rule, the Department of Defense drew not only on its

experience and expertise with respect to ranges but also on its own

experience with site investigation and response under CERCLA response

and RCRA corrective action. Further, the Department of Defense drew on

the experience of other Federal agencies. One very important source was

EPA's own reviews of, and recommendations for improving, the CERCLA

response and RCRA corrective action programs.

In developing the response process for military ranges described in

this proposal, the Department of Defense established the following

basic parameters. First, the process must minimize explosives safety

risks; protect human health and the environment; and directly include

the public, American Indian tribes, and appropriate Federal and State

agencies by seeking their active participation throughout the process.

Second, the process should focus on informed risk management decision-

making and risk management actions rather than protracted study. Third,

the process should, where possible, draw on the lessons learned in the

CERCLA response and RCRA corrective action programs, and incorporate

into its basic approach the recommended changes to improving those

programs.

The Department of Defense is developing, in consultation with other

Federal agencies, a conceptual time frame to establish timeline goals

for beginning the first two phases of the range response process. The

Department of Defense expects this conceptual time frame to be included

in the final rule. See also Sec. 178.6(a). Conceptual time frames for

the later three phases will be made publicly available when developed.

2. Program Overview

The process for addressing military ranges has five basic phases.

These are: (1) Range identification, (2) Range assessment/accelerated

response (RA/AR), (3) RE/site-specific response, (4) Recurring review,

and (5) Ending the range response action. A graphical portrayal of the

process appears in figure 1, DoD Range Rule Process Overview. The

demarcations between the phases are mostly for discussion purposes and

are not distinct starting and stopping points. A military range

addressed through this process can fall into more than one phase at any

given time, depending on site-specific considerations.

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The process for conducting response actions at military ranges

integrates site assessment functions into a process that allows for an

informed decision on how to best manage the risks posed by military

munitions and other constituents at the range. Furthermore, the range

response process as outlined in this proposal relies heavily on taking

prompt action to address risks. One of the principal ways the range

response process will achieve this is through implementation of ARs.

ARs use readily available means to address the identified risks posed

by UXO or other constituents (e.g., access controls, techniques to

reduce the migration potential of other constituents), while continuing

the assessment of the range to determine the need for subsequent

actions, such as detailed studies or implementation of more complex

solutions. Under this process, the decision whether to carry out an AR

occurs as soon as there is enough information showing that conditions

warrant such action. Further assessment of range conditions would focus

on gathering additional data to assess the effectiveness of the AR, as

well as on identifying other problems. Any further assessment must

support decisions on how to address the identified risks remaining at

the site. Should site conditions suggest a need for additional studies

or responses, these can take place either through continuation of the

RA/AR phase or, if these studies or actions require long periods to

conduct or implement, by proceeding to the RE/site-specific response

evaluation (SSRE) phase.

As can be seen from the overview flowchart in figure 1, the

Department of Defense is providing the public, American Indian tribes,

and regulatory agencies opportunities for involvement or access to

information at every step of the process. The Department of Defense

sees early and frequent interaction with the public and government

agencies (including American Indian tribal governments) as essential to

the success of this process, as it not only enhances risk management

decisionmaking but also helps prevent disputes over the actions taken.

Emphasis is placed on public, regulatory agency, and American Indian

tribal involvement throughout the process.

3. Programmatic Concepts

a. Public and government agency involvement: In this proposal, the

Department of Defense has committed to involving the public and

government agencies throughout the range response process. The process

provides for this involvement through widely accepted mechanisms such

as public notice and comment periods, public meetings, and public

availability of information. It also expands on these basic mechanisms

through making information on each range as readily accessible to the

public and government agencies as is practical, and by offering

opportunities for public, government agency, and American Indian tribal

interaction directly with the project team conducting the response.

Where public interest is sufficient, the public will be involved

through implementation of a public involvement plan (PIP) that is not

inconsistent with CERCLA.

There are several mechanisms that the Department of Defense intends

to use to involve the public, Federal and State regulators, American

Indian tribes, and other Federal agencies in the range response

process. These mechanisms are not inconsistent with the public

participation requirements under the CERCLA program and, as with

CERCLA, occur at various points in the process. In general, these

requirements (described in greater detail later in this proposed rule)

seek to: (1) Make information on response activities publicly

available; (2) keep the public and appropriate Federal, State, and

local agencies and American Indian tribes aware of planned and

completed actions; (3) solicit written comments from the public and

government agencies on proposed actions, and provide a responsiveness

summary for public comments before the final decision to proceed; and

(4) provide an opportunity for concurrence by the appropriate Federal

and/or State environmental regulatory agencies, American Indian tribe,

and Federal land manager. The responsible DoD component will also be

responsible for operating an information repository where the public

will have access to releasable documents. An administrative record for

all actions will be included in the information repository.

As part of its effort to provide for meaningful regulator and

public participation in the site-specific range response process, the

Department of Defense will provide a technology education program to

assist regulators, American Indian tribes, and the public in obtaining

a layperson's understanding of the complex subject of UXO detection and

removal technology. The objective of the program is not to make the

participants experts in the science of UXO detection and removal

technologies, but rather to increase their general knowledge. At the

RA/AR phase, the responsible DoD component will provide an explanation

of available UXO detection and remediation technologies to the

Restoration Advisory Board (RAB) or Extended Project Team (EPT). This

program will consist of a focused presentation (2 to 8 hours in

duration) on current UXO detection and removal technologies and, if

necessary, technology update presentations (2 to 4 hours in duration)

to capture significant technology advancements that have been made

since the initial presentation. The program's objective will be to

increase the participants' general understanding of the science, its

capabilities and its limitations.

In addition to these means for involving the public and government

agencies, the Department of Defense also is examining other mechanisms

for making information readily accessible. First, as part of the

identification phase of the range response process, the Department of

Defense will identify an official point of contact (POC) for each range

addressed under these provisions. Whenever there is an inquiry by the

public, a tribe, or a Federal, State, or local agency, the POC will be

responsible for providing any relevant and releasable information, or

for providing a formal written response explaining in detail why that

information was not provided.

Second, the Department of Defense plans that the information

contained in the range inventory and tracking system to be established

under the provisions of proposed Sec. 178.6(a)(1) will be readily

accessible to the public, possibly including via the internet. The

Department of Defense is also examining the practicality of making

information about specific ranges (e.g., reports, updates, decision

documents) available through this same venue. In the final rule, the

Department of Defense will specifically address the types of

information that will be available through the internet and how to

obtain it.

Third, as part of the identification phase, the Department of

Defense proposes that it will submit for inclusion in the permanent

land record at the local jurisdiction level for a parcel of land

identified as a closed, transferred, or transferring range, a formal

notice addressing: (1) The identification of the parcel of land as a

known or possible military range, including the unique identifier and

common name assigned to that range; (2) a statement that the land may

have been a military range; (3) a statement about the potential hazards

associated with military ranges; (4) the DoD component to contact for

additional information. As the range progresses through the range

response process, the

[[Page 50809]]

Department of Defense will append summaries of information contained in

formal decision documents to this notice.

Where RABs exist or can be established, they will be utilized to

involve the regulators, American Indian tribes, and the public in this

rule's proposed process. If a RAB does not exist and sufficient

interest to establish a RAB is not obtainable, a mechanism the

Department of Defense is considering to involve the public and

government agencies is the use of EPTs. When a RAB cannot be

established, the Department of Defense will identify interested members

of the community from the RAB solicitation process and seek support for

the establishment of an EPT. An EPT is a highly focused subcommittee

similar to a RAB.7 While most RABs address installation-wide

remedial activities, an EPT is intended to involve the public and other

agencies at the individual military ranges where response actions are

planned and implemented. A primary objective of the EPT is to develop a

common understanding of the scope and proposed approach to the upcoming

range response activities. Under this concept, the EPT consists of the

DoD staff and contractors responsible for planning, conducting, and

implementing response actions at a specific range (i.e., the internal

project team) 8; specific representatives of the public

(where a RAB exists, EPT representatives would be nominated from the

RAB; where a RAB does not exist, EPT representatives would be nominated

from interested members of the community); specific personnel from

Federal and State regulatory agencies (e.g., environmental regulatory

personnel, as identified by their respective agency); and American

Indian tribes and others with direct technical expertise or a

significant interest in the results of the action.

---------------------------------------------------------------------------

\7\ DERP, at 10 U.S.C.2705(d), states that the Department of

Defense may permit the establishment of a restoration advisory board

in connection with an installation (or group of installations) where

[the Department of Defense] is planning or implementing

environmental restoration activities.'' Since this proposed rule

establishes a formal process for planning and implementing response

actions at military ranges, creation of EPTs within existing RABs

(or establishment of a RAB for this purpose) will be utilized to the

maximum practicable extent and in accordance with DoD policies and

guidance on the establishment of RABs.

\8\ The project team consists of the responsible DoD component

and, as appropriate, the Federal land manager(s). Federal land

managers will have direct access to information through the project

team. The project team will have meetings, conference calls, and/or

other methods to ensure regular communication and input. The project

team is responsible for:

(1) Scoping of the response action, including but not limited

to, problem definition, establishing data quality objectives,

selection of response alternatives for evaluation, and project

planning.

(2) Preparing all necessary planning documents for conducting

the response.

(3) Preparing all reports (including recommendations on

appropriate responses) and decision documents related to the

response.

(4) Managing the project for purposes of assignment of

responsibilities to any subteams, budget, procurement, allocation of

resources, and resolution or elevation of disputes.

(5) Coordinating response activities with the EPT, the RAB, or

other forums for public involvement.

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EPT meetings should provide opportunities to: (1) Communicate the

initial understanding of the range and the project team's initial

approach for planning and conducting a response; (2) identify issues of

concern; and (3) solicit viewpoints. The success of an EPT depends

largely on the commitment of all the parties to consistent and

continued involvement. With such a commitment, the EPT becomes the

primary forum for presentation and discussion of identified problems,

recommended solutions, and unresolved concerns to the public and the

other Federal or State agencies. Through this exchange, the Department

of Defense can address public, government agency, and tribal concerns

as the response process proceeds, rather than at its conclusion. The

Department of Defense believes that the use of EPTs not only will

foster mutual exchange of ideas, concerns, and technical information at

the working level, but also will allow DoD decision-makers the

opportunity to redirect planned response actions as necessary before

committing to a course of action. The Department of Defense will also

consider other forums for public involvement as the specifics of the

site and the interest of the community dictate. The EPT will be

conducted in a manner that is consistent with the final published rule

on RABs, which was proposed on August 6, 1996 (61 FR 40764-40772) and

is planned to be published in calendar year 1997.

In Sec. 178.14 of this proposed rule, a concurrence role is

included for Federal and/or State environmental regulatory agencies,

American Indian tribes, and Federal land managers when a response will

be conducted on a closed, transferred, or transferring range under

their jurisdiction, custody, or control. The concurrence role

specifically applies to Federal and/or State environmental regulators,

American Indian tribes, and Federal land managers, as appropriate.

Regulatory agencies are given a concurrence role because other

regulatory authorities may apply to a military range. Federal land

managers are given a concurrence role due to the independent statutory

authorities they have pertaining to lands under their jurisdiction,

custody, or control. American Indian tribes are a given a concurrence

role in order to provide them with substantially the same role as

States. Specifically, the Department of Defense will seek review of and

concurrence on the draft decision document identified in Sec. 178.14(d)

in this proposed rule. In addition, the Department of Defense will seek

concurrence on the RA work plans identified under Sec. 178.7(b)(2).

Technical impracticability (TI) and no further action determinations,

as well as requests for applicable or relevant and appropriate

requirements (ARAR) waivers, will be contained in the draft decision

document appropriate to the specific response phase underway, and thus

will be provided for review and concurrence. Procedures for ARs

described in Sec. 178.7(e)(4) are not inconsistent with time-critical

removals taken under CERCLA, and the Department of Defense intends to

apply the same administrative procedures as those that are applicable

to CERCLA time-critical removals. However, the Department of Defense

does not intend to ask for concurrence on these AR decision documents,

but does intend to make them available for comment.

Section 178.14 provides for document review times of 45 days. This

will allow the response process to progress more rapidly. Additionally,

Sec. 178.14 of this rule encourages the use of site-specific or area-

wide agreements between the Department of Defense and Federal or State

environmental agencies, the Department of Defense and American Indian

tribes, or the Department of Defense and Federal land managers. These

agreements may modify, upon mutual agreement of the parties, the review

times and dispute resolution procedures, as well as cover other

pertinent issues. If nonconcurrence is received, then dispute

resolution will be invoked. If no written response is received by the

responsible DoD component within the established review period

(including extension, if applicable), then the responsible DoD

component may proceed with a range response action or invoke the

dispute resolution process, or both.

The Department of Defense requests comment on the general

mechanisms described for involving the public and government agencies

and seeks specific comments on establishing EPTs. The Department of

Defense requests that commentors provide specific recommendations on

mechanisms to identify public and government agencies that might be

interested in

[[Page 50810]]

participating in EPTs, especially groups that represent the public.

b. Development of a risk assessment model for use at ranges: The

Department of Defense recognizes that there is an urgent need to

develop a risk assessment model for military ranges in order to carry

out the requirements of these regulations. Although there are already

several risk assessment models for ranges under various stages of

development, none comprehensively address the risks posed by both

military munitions and other constituents. In implementing these

provisions, the Department of Defense intends to develop a model or

protocol that: (1) Addresses the risks posed by military munitions and

UXO and (2) incorporates to the maximum extent possible the models EPA

has developed for assessing the acute and chronic risks posed by

releases at CERCLA and RCRA sites. The Department of Defense does

recognize that completing this model/protocol by the promulgation date

of this rule is a very ambitious objective. Should the Department of

Defense not be able to finalize the risk model/protocol, an interim

model/protocol will be put into place before the promulgation date of

this rule. The Department of Defense will develop the model/protocol in

consultation with EPA and also will seek input from Federal land

managers, States, American Indian tribes, and the public in the

development of the model/protocol. The Department of Defense will seek

public input by publishing a notice of availability of the interim and/

or draft final version of the risk model/protocol. The notice will

provide for public comment on this guidance document. Further, the

Department of Defense plans to develop a streamlined version of this

model/protocol to use as a screening tool, as EPA did with its

streamlined version of the Hazard Ranking System (HRS) for screening

sites during the CERCLA response process. This streamlined version will

rely more on qualitative information than quantitative information. The

primary use of this streamlined model/protocol will be to focus the RA/

AR process and to assess the need for implementing ARs. The decision to

utilize the more detailed risk assessment model/protocol (versus solely

the streamlined version) will be made by the Department of Defense in

consultation with regulators and the RAB or EPT.

In the explosives safety element of the model/protocol, the

Department of Defense plans to consider the following types of factors:

(1) The specific type(s) of military munitions employed on the

range.

(2) The quantity of each type of munition employed.

(3) The fuze types used on these military munitions.

(4) The density (i.e., spatial distribution) of UXO on the range.

(5) The estimated depth of the military munitions (based on

penetration data).

(6) Public access to the range (i.e., likelihood of exposure of the

public).

(7) The terrain, vegetation, soil type, and climate.

(8) Current and anticipated land use.

In the other constituents element of the model/protocol, the

Department of Defense plans to incorporate many of the factors

considered in the HRS and EPA's ``Risk Assessment Guidance in Superfund

(RAGS).'' In general, these models assess the risk posed by the site

based on:

(1) The identity and concentration of the constituents known or

believed present at the site.

(2) The environmental setting of the site (e.g., surface and

groundwater features, soils and geology, terrain, climate, vegetation).

(3) The human and environmental receptors potentially exposed at or

near the site.

(4) The exposure pathways of concern (e.g., direct contact,

inhalation, ingestion).

(5) The known or suspected acute and chronic hazards posed by

exposure.

(6) Current and anticipated land use.

The Department of Defense requests recommendations on additional

factors to consider in both the explosives safety and constituent

elements of the model/protocol. Further, the Department of Defense

solicits recommendations on whether it should integrate these

explosives safety and environmental protection elements into a single,

unified model.

c. Technical impracticability: At a limited number of sites, the

Department of Defense foresees that explosives safety concerns and

limitations of existing UXO detection and destruction technologies may

lead to consideration of site-specific remedies that are limited to

institutional controls and monitoring. Institutional controls, such as

fences or barriers to control public access, would be implemented to

restrict access to unsafe areas and thereby limit the explosives safety

risks and constituent threats to human health. Monitoring would be

implemented to ensure that constituent releases do not migrate to where

they pose unacceptable risks to human health and the environment. At

other sites, safety and technical considerations may allow a limited,

active response in conjunction with institutional controls and

monitoring.

A TI determination may occur during the site evaluation and

response action process. An example where active response actions may

not be technically practicable is a water range that may be too deep to

allow investigation or implementation of an accelerated or site-

specific response using current technologies. Other conditions may

exist at range sites where it is readily apparent that on-range

response actions are technically impracticable due to explosives safety

concerns or lack of adequate technology to address the site conditions.

Where it is readily apparent, as in the deep water range scenario, that

it is technically impracticable to implement active response actions,

the Department of Defense may make a TI determination and approve only

institutional controls without initial attempts to actively remove UXO

from the range. Conversely, there may be range sites where the

Department of Defense will extensively investigate and evaluate site

conditions and feasible alternatives, implement active response

actions, and subsequently discover that the site conditions render a

particular type of response action technically impracticable due to

explosives safety or technological limitation concerns.

As discussed later in this proposed rulemaking, the Department of

Defense proposes to use a range response process that is similar to the

NCP process developed by EPA for sites addressed under CERCLA. In

arriving at a TI determination, the Department of Defense proposes to

develop a TI recommendation that would be included in the appropriate

report for the applicable phase or stage of the range response process.

The TI recommendation will address the specific information and

analyses necessary to support a TI decision and recommendations for

actions that may be needed to prevent deterioration of the

environmental conditions at the site. These actions may typically

include measures to prevent further environmental degradation,

implementation of management and institutional controls, and

continuation of adequate monitoring to ensure that constituent releases

do not migrate from the range and that the constituents left in place

do not pose a risk equal to or greater than the explosives safety risk.

Reports supporting TI recommendations are subject to review and comment

(see Sec. 178.14(c) of this proposal). Decision documents recommending

TI determinations are subject to

[[Page 50811]]

concurrence (see Secs. 178.14 (d) and (e) of this proposal).

The Department of Defense will seek regulator and American Indian

tribe concurrence and will consider public comments received on the TI

recommendation in deciding whether to approve a TI determination. The

Department of Defense will issue a formal decision document if the TI

recommendation is approved at the DoD level. A notice of availability

for any report containing a TI recommendation will be published. The

decision document for such a report, recommending a TI determination,

will explain the basis for the decision, a synopsis of comments

received and the Department of Defense's responses to relevant

comments, any conditions required as part of the TI determination, and

the frequency of subsequent periodic reviews (``recurring reviews'') to

reevaluate the TI determination. (Recurring reviews are discussed in

more detail later in this proposed rule.) The recurring review would

determine if: (1) The control measures in place are functioning

adequately, and (2) advances in UXO detection or destruction

technologies can acceptably reduce the explosives safety risk posed to

personnel entering the site. If the recurring review process indicates

that the reasons for having issued the TI determination can be

overcome, the Department of Defense will reevaluate the need to pursue

additional response actions for the range sites. If practicable from a

safety and technological viewpoint, the Department of Defense will

implement the new response action based on advances in technology.

The concept of TI determinations to forgo certain response actions

due to safety or technological limitations is not novel. For example,

although used in a different context and on a more limited scale, EPA

has previously issued guidance on evaluating the technical

impracticability of groundwater restoration at certain sites having

hydrogeologic constraints or contaminant-related factors that severely

impede the success of active restoration. (For an example, see Guidance

for Evaluating the Technical Impracticability of Ground-Water

Restoration, Interim Final, OSWER Directive 9234.2-25 9

(September 1993)). Under appropriate conditions, EPA's guidance allows

a waiver of Federal or State cleanup standards that otherwise would be

normally required for groundwater restoration efforts under CERCLA.

EPA's guidance also allows selection of alternative remedial

technologies commensurate with the waiver of the cleanup standards. Due

to the extreme safety risks associated with range sites containing UXO

and the limited detection technology currently available for

effectively locating UXO, the Department of Defense proposes to use

EPA's TI waiver concept to implement appropriate and protective

institutional controls and to periodically review the practicability of

implementing additional response actions.

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\9\ Copies of EPA's ``Guidance for Evaluating the Technical

Impracticability of Ground-Water Restoration, Interim Final, OSWER

Directive 9234.2-25'' (September 1993) can be obtained, at cost,

from the National Technical Information Service, 5285 Port Royal

Road, Springfield, VA 22161 (telephone 703-487-4650).

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E. Detailed Discussion of the Phases of the Range Response Process

1. Identification of Closed, Transferred, and Transferring Military

Ranges

The first phase of the range response process is the identification

of closed, transferred, and transferring ranges. In this phase, a list

of the ranges subject to these requirements will be developed. Proposed

Sec. 178.6, Identification of closed, transferred, and transferring

ranges, defines the specific requirements for the identification phase

of the range response process.

a. Identification and establishment of a tracking system: In

summary, upon the effective date of these regulations, the Department

of Defense will undertake a coordinated effort to identify all land and

water areas potentially subject to these provisions. This information

will form a permanent record and centralized tracking system for

closed, transferred, and transferring military ranges. Such a system

provides a valuable tool for the Department of Defense's internal use

in managing the program. Furthermore, the Department of Defense intends

that the information in this tracking system be readily accessible to

the public and other governmental agencies. As mentioned before, one

alternative the Department of Defense intends to examine is whether the

internet could serve as a means for public access to the tracking

system.

The Department of Defense believes the following information about

each range is the minimum necessary to include in this tracking system:

(1) A unique identifier for the range.

(2) The common name for the range.

(3) The status of the range (i.e., closed, transferring,

transferred).

(4) The name, address, and telephone number of a POC at the

Department of Defense or Military Service organization with

responsibility for implementing the range rule at that range.

(5) The States and counties (including independent cities and

towns) in which the range lies.

(6) A representation or description of the range showing its

location, boundaries, and areal extent.

(7) The general type(s) of military munitions used on the range

(e.g., artillery, small arms, naval gunnery).

(8) A list of parties other than the Department of Defense or a

military department with ownership interest in or governmental

administrative control of the land or its resources.

The Department of Defense requests comments on these basic

information requirements, specifically with respect to recommendations

for additional information to include in the centralized tracking

system. In addition, the Department of Defense requests recommendations

on other mechanisms for making this information accessible to the

public. The Department of Defense plans to update the tracking system,

including the priority assigned to each range, at least once per year

to indicate which military ranges have entered the RA/AR phase and

which ranges have been identified for entering the RA/AR next.

b. Notices in official land records: This proposal makes use of

current DoD recordkeeping practices. For example, permanent records are

required for each range area. These records indicate known and

suspected range areas, and identify military munitions used, their

hazard, quantity, locations, and UXO rates. Another example is that

transfer records are required to detail past ammunition and explosives

use, provide information on other constituents present, and advise the

user not to excavate or drill in range areas without a metal detection

survey. This information is required to be entered in the permanent

land records of the civil jurisdiction in which the property is

located. To the extent to which any of these records are available for

closed, transferred, or transferring ranges, they will be used in the

range identification process.

Following identification and collection of sufficient information

about the location and boundaries of a range identified under these

provisions, the Department of Defense will examine the appropriate land

records. A formal notice in the official local land record for that

range should include, at a minimum:

(1) The proper legal description of the land that was or may have

been used as a military range, including the unique

[[Page 50812]]

identifier and common name assigned to that range.

(2) A statement that the land may have been a military range.

(3) A summary description of the hazards commonly encountered at

military ranges (e.g., UXO).

(4) The DoD component to contact for additional information about

that range.

Upon analysis of additional information and the implementation of

accelerated or site-specific responses, the Department of Defense will

update this notice to reflect the current conditions at the range.

c. Supply of information to Federal mapping agencies and State and

tribal geographic information systems (GIS): The Department of Defense

also plans to provide certain information on the ranges identified

under these requirements to those Federal, State, and Native American

tribal agencies charged with the development and distribution of

official maps and charts. The Department of Defense will recommend that

these agencies include in updates to these maps and charts a means of

delineating these areas, as well as several pertinent pieces of

information. This information includes the unique identifier for each

range, the name of the DoD organization with responsibility for

implementing these provisions on that range, and a brief statement of

the potential hazards associated with entry into these areas. In

addition, the Department of Defense requests comments as to whether

this information would be useful to local governmental entities with

mapping or zoning responsibilities or to private firms that prepare and

print maps for public distribution. If the commentor believes this to

be the case, the Department of Defense requests the commentor's

recommendations on means to provide that information to those entities.

d. Prioritization for range assessment/accelerated response: While

the Department of Defense believes that, immediately following their

identification, all ranges should enter the RA/AR phase of the range

response process, current fiscal realities show a need for a system to

determine the order in which ranges enter the RA/AR phase. Of the

various approaches available, the Department of Defense believes that

one consideration for ranking these ranges for entry into the RA/AR

phase is the degree to which the Department of Defense or a Military

Service can control access to the area, since this is one simple yet

effective means of managing the potential risk posed by the range.

Access control sets forth a basis for prioritization, but other

environmental factors will be considered, such as imminent hazards, and

the likelihood of release migration within 1 year.

Based on the consideration of access controls and risk management,

the first group of ranges that would be addressed are those already

transferred from DoD control, because the Department of Defense has the

least ability to exercise control over those areas. The second group

would be the ranges planned or scheduled for transfer from DoD control;

these ranges are still subject to DoD control, but failure to transfer

the range in a timely manner can impact other activities, for example a

land transfer under BRAC Act provisions. The final group will be those

ranges that, while closed, are still under DoD control. The Department

of Defense recognizes, however, that other factors may influence the

need to conduct a response action. Therefore, in determining which

ranges will enter into the RA/AR phase, the Department of Defense will

consider factors relating to safety and environmental hazard potential,

such as:

(1) Whether a site access can be controlled and the population is

at risk.

(2) The potential for direct human contact and evidence of people

entering into the range area.

(3) Whether a response action has been or is being taken at that

range under the FUDS program or other environmental restoration

programs.

(4) Planned or mandated dates for transfer of the range from DoD

control.

(5) Documented incidents involving UXO or off-range releases of

other constituents from the range.

(6) The potential for drinking water contamination.

(7) The potential for destruction of sensitive ecosystems.

(8) The potential for damages to natural resources.

(9) The potential for releases to the air.

(10) The degree of public interest in the range.

(11) The degree of Federal land manager interest in the range.

(12) The degree of state or Federal regulator or American Indian

tribe interest in the range.

The priority assigned to each range is another element the

Department of Defense plans to include in the tracking system. The

Department of Defense plans to update the tracking system, including

the priority assigned to each range, at least once per year to indicate

which military ranges have entered the RA/AR phase and which ranges

have been identified for entering the RA/AR next. The Department of

Defense solicits comments on this approach to prioritizing military

ranges, with specific emphasis on other factors to consider when

assigning a priority ranking to a given range.

e. Public and government agency involvement: One of the basic

requirements the Department of Defense established when developing this

proposal was the commitment to involving the public and government

agencies in each phase of the range response process. The responsible

DoD component will work with the community to provide information

concerning response activities, respond to inquiries, and provide

information concerning the conditions at the range. The responsible DoD

component will notify, at a minimum, immediately affected citizens,

State and local officials, and, when appropriate, civil defense or

emergency management agencies. During the identification phase, one of

the primary goals is to ensure public access to information on each

range subject to these requirements. The Department of Defense does,

however, recognize an additional opportunity for public and government

agency involvement during this phase. The Department of Defense

proposes allowing public and government agency submission of documents

identifying the location of closed, transferred, or transferring

ranges. Upon verification of the accuracy of such submissions, the

Department of Defense would enter that range into the tracking system

of ranges subject to these provisions.

The Department of Defense solicits comments on additional

mechanisms to involve the public and government agencies in the

identification process and means to provide access to information about

ranges identified subject to these requirements.

2. Range Assessment/Accelerated Responses

One goal of the RA/AR is to determine the condition of the

property. Another goal of the RA/AR phase is finding ways to accelerate

the response process by delineating areas within the range where

response activities are necessary and by limiting the effort spent

collecting data to only the level necessary to address the

uncertainties that accompany prompt action. The Department of Defense

intends that the RA/AR phase use readily available information to

determine if additional investigation or implementation of an AR is

warranted, based on range conditions. Therefore, the RA/AR phase is

dependent on: (1) Identification of the types and sufficiency of data

needed for

[[Page 50813]]

an informed risk management decision; (2) the ability to implement ARs

when appropriate; and (3) analysis of information to know when (a)

enough information either has been or cannot be gathered to make an

informed risk management decision, and (b) when an identified risk can

or cannot be addressed by an AR. The Department of Defense will be

issuing detailed guidance on how to conduct the RA/AR phase and

believes that it will be possible to develop standardized procedures

and reporting requirements for RA/AR activities.

For clarity, the following discussion presents the RA and AR

separately. However, the Department of Defense intends for them to be

concurrent, interrelated activities.

a. Range assessment: The RA is a limited-scope investigation

designed to distinguish between ranges, and areas within ranges, posing

little or no safety, human health, or environmental risks and ranges,

or areas within ranges, that do pose such risks. Ranges that pose a

risk warrant further investigation or implementation of an AR. The

Department of Defense intends that the initial effort in an RA be a

compilation and analysis of existing information about the range and

its surroundings, similar to the CERCLA preliminary assessment or a

RCRA facility assessment. The RA emphasizes collection of available

information through a combination of file searches and ``desktop''

information collection and analysis. If, based on analysis of the

existing information about the range, collection of additional

information is believed necessary to better delineate the range or

areas within the range where response activities are warranted, then

visual inspection of the range or sampling of environmental media may

be undertaken to provide an improved understanding of the conditions at

the range. The Department of Defense will be issuing guidance on the

specific requirements and procedures for conducting an RA.

(1) Scope of the range assessment. The Department of Defense

envisions implementing the RA by conducting several levels of

information collection and assessment. The first level of the RA is to

determine if the range is subject to these requirements and if there is

readily available information suggesting that the range poses a hazard.

This usually can be done by reviewing the official records of the

installation, local records, or other references. Such documents are

often the primary source of information on range locations and

operations conducted at those ranges.

If in fact the area was or is a military range subject to these

provisions, the next phase of the RA is collection of information on

the types and quantities of military munitions employed at the range.

At a minimum the Department of Defense sees a need for the following

types of information:

(1) The type(s) of military munitions employed on the range.

(2) The estimated quantity of military munitions employed.

(3) Time frames during which the military munitions were employed

on the range.

(4) The chemical constituents of those munitions.

(5) The fuze types used on these military munitions.

(6) Identification of locations within the range where these

military munitions are known or suspected to have been employed.

(7) The estimated density of UXO in those locations.

(8) The estimated depth of the munitions (based on penetration

data).

(9) Information on range clearance operations or reported incidents

involving UXO on the range.

(10) Safety issues related to military munitions employed on the

range.

(11) The type(s) of any targets that may have been used on the

range.

(12) Other past and present uses of the range.

This information feeds into the assessment of the risks posed by

the military munitions and UXO potentially found on the range.

One of the critical early efforts during the RA is the

identification and delineation of areas within a range that pose

varying explosives safety hazards and environmental threats.

Delineation procedures will adequately define different types of range

areas. Delineation of range areas would likely include, but not

necessarily be limited to: Impact areas; buffer zones; firing areas;

maneuver areas; military munition stockpile areas; open burning/open

detonation areas; disposal areas; and any other areas of concern

(including off-range areas where constituents may have migrated from

on-range sources). Environmental threats can include, but are not

limited to, chronic, mutagenic, or teratogenic effects.

A goal of this effort will be to identify areas with a higher

explosives safety risk from those areas that are either unaffected or

minimally affected. Once delineated, a range area would proceed through

the five-phase process independently of other areas. For example, an

impact area with a high explosives safety risk that is confirmed to be

too dangerous to assess or remediate would proceed on a distinctly

different path through the five-phase process than would an adjacent

buffer zone that was confirmed to have a lower explosives safety risk

but has significant quantities of other constituents. The buffer zone

and other site areas that fit into this category would, as a group,

proceed to the RE/SSRE phase, where focused characterization and

response activities ultimately would take place.

Another goal of range delineation during the RA will be to assess

what ARs can be implemented at areas geographically outside ranges with

a high explosives safety risk, but where constituent levels from

employed munitions or other constituents are significant. It is likely

that all ranges will include areas with a lower explosives safety risk,

where characterization and possible response efforts may be feasible in

order to provide for incremental risk reduction. This will serve to

specifically address releases from other constituents.

If the Department of Defense, in consultation with the RAB and/or

EPT, determines that any of the following conditions exist, the

affected portion(s) of the range should proceed without delay to the RE

phase. These conditions are (1) that the range presents issues that are

too complex to be addressed in the RA; (2) that all or part of the

range poses an imminent threat to human health or the environment which

cannot be mitigated effectively through an AR; or (3) that an AR had

been implemented but substantial environmental threats remain.

To address the risks posed by other constituents, including CERCLA

hazardous substances, known or suspected to be present on the range,

the Department of Defense will use existing information on the

constituents identified during the assessment of the military munitions

employed on the range and any other potential constituents identified

from other activities on the range. The goal of this aspect of the RA

is to develop an initial ``target'' list of constituents and to suggest

locations for sampling for use in later phases in which environmental

samples may be collected and analyzed; to identify the corresponding

ARARs; and to address the ability of that RA to meet the ARAR

requirements and protect human health and the environment. This

assessment also will collect readily available existing information on

the identity, concentration, and characteristics (e.g., toxicological,

fate and transport) of the identified constituents. This information

feeds into the initial

[[Page 50814]]

assessment of the risk posed by other constituents at the range.

The RA also will require collection of existing data on the

environmental setting of the range, the location and identity of

receptors potentially impacted by the range, and specific routes of

exposure of concern. Specifically, the RA involves collection of

existing information on such factors as:

(1) Local hydrologic and hydrogeologic conditions (which includes

groundwater).

(2) Soils and geology.

(3) Terrain.

(4) Climate and meteorological data.

(5) Vegetation.

(6) Current and predicted land use.

(7) Cultural resources.

(8) Receptors (i.e., humans, ecological receptors).

(9) Exposure pathways of concern (e.g., direct contact, inhalation,

ingestion, or exposure to radionuclides).

The Department of Defense believes that a significant portion of

the information needed to address these factors is available from

existing sources such as topographic maps, aerial photographs, on-line

databases, and published studies.

The preliminary phases of the RA, which depend primarily on

existing information, can suggest that a visual inspection of the range

or limited-scale sampling of environmental media is necessary to

develop a more complete understanding of the conditions at the range or

to better delineate areas requiring response activities. In either

case, entry onto the range requires the development of an explosives

safety plan and submittal of the plan to DDESB for coordination. If the

information suggests a need for sampling of environmental media, the

DoD organization conducting the response should develop a work plan

describing the objectives and plan for conducting the sampling,

including the standard operating procedures (SOPs) to be used for the

range response. Typically, the plan for sampling and analysis of

environmental media will use a format similar to the one used when

conducting these activities under a CERCLA response or RCRA corrective

action.

Once collected, the information on the military munitions employed

at the range, the other constituents believed present, and the

environmental setting of the range serves the following purposes:

(1) Identification of any actual or potential threats posed by the

site (e.g., reported incidents involving UXO, documented releases of

other constituents from the range).

(2) Initial assessment of the identified risks posed by the

military munitions and other constituents on the range, with a

qualitative identification of the source-pathway-receptor chain and UXO

density potential.

(3) Focus of follow-on studies or monitoring.

(4) Assessment of the need to implement ARs.

(2) Accelerated responses. An AR is any readily available, proven

method of addressing the identified risks posed by military munitions

or other constituents at ranges subject to these requirements. Some

examples of ARs include:

(1) Posting signs warning of the danger associated with range.

(2) Erecting fences or other measures to control access.

(3) Implementing simple erosion controls (e.g., silt fences).

(4) Suspending incompatible land uses (where the Department of

Defense can do so).

(5) Implementing community education and awareness programs.

(6) Requiring ``dig permits'' at areas where the Department of

Defense has control over site activities.

(7) Conducting source removals or surface sweeps for UXO.

(8) Implementing deed restrictions.

(9) Implementing a monitoring program (for example, to assess if

constituents are migrating off the range in stormwater runoff or

percolating into groundwater).

(10) Providing alternative sources of drinking water.

(11) Performing other effective engineering, institutional, or

exposure controls.

This is by no means a complete listing of the types of ARs

available to address the identified risks posed by ranges. The

Department of Defense plans to develop detailed guidance on ARs in the

near term which will be not inconsistent with CERCLA.

The Department of Defense sees merit in using the same criteria for

evaluating AR alternatives and for evaluating more complex and tailored

site-specific responses. A later section of this proposal provides a

detailed discussion of these criteria. The primary differences are in

the scope of the evaluation of alternatives, and that the AR analyses

rely on qualitative rather than quantitative information. In these

ways, the AR process is similar to the process identified in the NCP

for non-time-critical removal actions (at least 6 months' planning

time) and time-critical removal actions (less than 6 months' planning

time). For example, the process for selecting an AR is similar to the

engineering evaluation/cost analysis performed as part of non-time-

critical removal actions identified in the NCP.

In general, using the data collected during the RA, this process

will be a qualitative evaluation of the source-pathway-receptor link

that creates the risk. These data will be analyzed to determine which

AR options would most effectively sever that link or reduce its

impacts.

(3) Public and government agency involvement. Before beginning the

RA/AR phase, the DoD organization responsible for that range will send

a written notice to the appropriate Federal, State, and local officials

and American Indian tribes informing them that these activities will be

starting. This notice will also request that these officials name a POC

within their organization and identify that POC to the project team.

Throughout the RA/AR phase, the public, government agencies, and

American Indian tribes will have access to validated information about

range conditions, the potential hazards posed by the site, and any ARs

undertaken to address those hazards. In addition, the public will have

access to RA/AR reports and decision documents. Usually, access to this

information is through the information repository; however, unresolved

questions or concerns can be taken to the DoD POC or to the EPT, if one

exists. Other venues for information exchange are the RAB (if one

exists), and/or informal meetings with community leaders or other

government officials.

For all ARs where implementation of an on-site action is expected

to take more than 120 days to complete, within that period the

responsible DoD component will conduct interviews with local officials,

community residents, public interest groups, or other interested or

affected parties, as appropriate, to solicit their concerns,

information needs, and how or when citizens would like to be involved

in the range response process. The Department of Defense also will

prepare a formal PIP based on community interviews or other relevant

information, specifying the public involvement activities that are

needed during the response.

Before undertaking an AR, the DoD organization responsible for the

activities at that range will formally document its decision. This

document will briefly summarize conditions at the range, explain the

hazards the AR was to address, and provide other useful and relevant

information.

Except where an emergency response is required to address an

imminent

[[Page 50815]]

threat to human health or the environment, the public, regulators,

American Indian tribes, and (where appropriate) Federal land managers

will be provided a reasonable opportunity to comment on proposed RA/AR

actions, based on information included in the RA/AR report. This report

will be subject to a 45-day review and comment period prior to

implementation of the AR. If requested, the Department of Defense also

will hold a public availability session. If the physical construction

associated with an AR, including implementation of site access control

measures, is reasonably expected to be completed within 120 days of the

commencement of the AR (i.e., completion of the RA), the opportunity

for review and comment may be provided during or when the AR has been

implemented. While an AR might be fully protective, the majority of ARs

will be interim responses by nature, particularly those for which the

physical construction is reasonably expected to be completed within 120

days of commencement. In cases where an AR is expected to be fully

protective and to make a site-specific response unnecessary, public

participation through review and comment on the RA prior to

implementation of the AR should be afforded, even when the AR can be

implemented within 120 days.

3. Evaluation of Range Assessment/Accelerated Response Results

As discussed in Section IV.E.2 of this preamble; one goal of the

RA/AR process is to couple existing information with a limited

gathering of additional information to make informed risk management

decisions at the range. If the range poses a hazard, ARs, as

appropriate, can be taken to address that hazard. This process

continues until enough information is available to make an informed

risk management decision (or, alternatively, the effort necessary to

collect that information is beyond the scope of the RA); and all

identified hazards have been addressed through implementation of an AR

(or a determination has been made that ARs are unable to address the

identified hazards).

Once at this point, the DoD organization conducting activities at

the site may implement a time-critical AR or will make the RA/AR report

available for comment and will then issue a decision document for the

proposed action. The RA/AR report will document the findings of all

assessment activities and the reasons for and effectiveness of each AR

at the range. The RA/AR report will also make one of the following

recommendations:

(1) Issue a determination of no further action (typically where the

area was not a range or there is no appreciable risk associated with

the range).

(2) Conduct recurring reviews because all identified risks have

been effectively managed and are expected to remain effectively managed

in the long-term.

(3) Conduct an RE because of a need for additional information to

make an informed risk management decision or in anticipation of a site-

specific response to address the remaining hazards.

(4) Issue a TI determination because, while a risk remains, there

are no alternatives available capable of addressing the identified

risk. For example, a TI determination would be appropriate at a naval

gunnery range located in deep water (i.e., over 300 feet deep), where

existing technology is not available to effectively implement a

response. Another example would be an artillery range with a large

number of UXO located in a small area of rugged terrain where manual

clearance is required. Due to the density of the UXO, entry into the

area may be too hazardous to undertake; clearance of one UXO by

detonation may lead to sympathetic detonation of nearby rounds, due to

the proximity of the UXO item to other UXO items. This situation would

present an unacceptable explosives safety risk, in that the

sympathetically detonated round may undergo a low-order detonation,

scattering unconsumed explosives over a wide area, worsening the

problem. In a case such as this, not directly addressing the UXO while

implementing other types of control measures may be the most

appropriate response action. Typically, recommendations for other

appropriate control measures and recurring reviews will be a part of a

recommendation for the TI determination.

Once the draft RA/AR report is complete, the Department of Defense

will include it in the administrative record and make it publicly

accessible at the information repository. The Department of Defense

also will publish a notice of availability of the draft RA/AR report

and brief description of the action being proposed in the report in a

major local newspaper of general circulation and announce a 45-day

period for submission of written comments to the DoD POC for that

range. If requested, the Department of Defense will hold a public

meeting or availability session. Following the comment period, the

Department of Defense will develop written responses to significant

comments received during the comment period, consider any issues

brought out by these comments, and prepare a formal decision document

outlining which recommendation will be adopted. A copy of the decision

document and all supporting information will become a part of the

administrative record for the military range, and the Department of

Defense will mail a copy of the decision document to all appropriate

government agencies and the current property owner.

4. Range Evaluation

REs are detailed investigations of the military munitions employed

on the military range, the other constituents believed or known to be

present, and the environmental setting. Generally, an RE will be

performed when making an informed risk management decision requires the

collection and analysis of a significant quantity of quantitative

information not otherwise available. This information collection often

is a complex, long-term effort (e.g., groundwater monitoring) that

demands careful planning before its execution. This phase includes

evaluation of site safety, and potential human health and ecological

impacts. RE examples include, but are not limited to:

(1) Military ranges where chemical munitions were employed and

where the RA/AR process shows a potential exposure from a chemical

agent release.

(2) Military ranges where land use or the degree of public access

is incompatible with the condition of the range following the RA/AR

process.

(3) Military ranges with a reasonable potential for contamination

of surface water or groundwater that is in excess of applicable

standards and which is a potential source of drinking water.

a. Scope of a range evaluation: The types of information collected

during the RE are similar to those collected during the RA/AR phase and

serve the same purposes; however, the information collected is far more

specific and typically quantitative in nature. For example, while the

RA/AR phase sought information on the type(s) of military munitions

employed on the range, an RE might seek to determine the specific

military munitions employed. Similarly, where the RA/AR used estimates

of various values such as the quantity of military munitions employed

on the range and the density (i.e., distribution) of UXO, the RE uses a

combination of detailed ``desktop'' evaluations and field sampling to

refine the estimates.

The first step in conducting the RE is reviewing the available

information to focus the RE. The Department of Defense intends all REs

to be focused studies, tailored to answering specific

[[Page 50816]]

questions. Conducting such a focused study requires defining:

(1) The objective of the information collection effort (i.e., what

question is to be answered).

(2) The boundaries of the information collection effort.

(3) The role of the data in supporting risk management decisions.

(4) The specific type, quantity, and quality of information to

collect to meet the objective.

(5) The acceptable level of uncertainty (in terms of the accuracy)

of the information.

For example, to assess the risk posed by the other constituents

known or suspected to be present on the range, the Department of

Defense will use existing information on the other constituents

identified during the RA, as well as any other readily available

sources. This review will provide the basis for developing a ``target''

list of potential constituents. This approach also will focus the

collected information on the health and environmental characteristics

of the constituents that may be present on the range. Similarly, it is

possible to focus collection of information on the environmental

setting. If, for example, the range is in an area where, due to an

extremely high concentration of total dissolved solids, the groundwater

is not useful for drinking or agriculture, it may be appropriate to

limit assessment of potential groundwater impacts.

b. The range evaluation plan: The Department of Defense intends

this focusing effort to lead to the development of a single, concise

document, the RE plan. The RE plan will provide all necessary

information about the objectives established for the RE, the rationale

for those objectives, and how those objectives will be achieved. For

example, this document would explain the focus of the RE, define the

objective(s), boundaries, data uses, sampling and analysis protocols,

safety, and data analysis procedures required to complete the RE. The

Department of Defense will issue detailed guidance on how to conduct an

RE, and believes that it will be possible to develop a standard RE plan

that, with minor modifications, can be adopted for use at the majority

of these ranges. The DoD organizations conducting the RE will make this

document a part of the administrative record and will publish a notice

of availability in a local newspaper. The notice will summarize the

purpose of the document and inform the public how to gain access to the

RE plan. At a minimum, the RE plan will be made available at the

information repository.

c. The range risk assessment: The collection and analysis of

additional information about conditions at the range lead to the

primary purpose of the RE, a detailed, quantitative assessment of the

risks posed by the military munitions and other constituents at the

range. The level of risk posed by the site is one element in making an

informed risk management decision about the need for a site-specific

response.

In general terms, the military range risk assessment model/protocol

the Department of Defense plans to develop requires similar types of

information for military munitions and other constituents. These

information requirements include:

(1) Identification of the source of the risk (e.g., identification

of the specific military munitions or other constituents).

(2) Identification of receptors, pathways, and potential for

exposure.

(3) Identification of the effects of exposure (e.g., the types of

injuries that accidental explosion of military munitions can cause; the

acute, chronic, and carcinogenic effects of exposure to other

constituents).

While the explosives safety and other constituent risk assessments

generally require similar types of information, the specific

information requirements are different and reflect the basic

differences between explosives safety risks and constituent releases.

For example, injury from the detonation of conventional military

munitions requires either direct or indirect exposure to the energy (as

pressure or heat) released by the explosion, or to energy imparted to

materials by the explosion (e.g., shrapnel); generally, the injury is

due to physical trauma. In contrast, exposure to other constituents

usually involves entry into the receptor by ingestion, inhalation, or

dermal absorption, and the effects are due primarily to disruption of

physical functions in the receptor. Therefore, the specific information

required to assess the effects of exposure will be different.

Currently, the risk assessment models used for military munitions

and UXO do not adequately address the potential risks associated with

constituent exposure. Likewise, the risk assessment models for

constituent exposure do not address the effects of explosions or other

injuries caused by military munitions. For these reasons, the

Department of Defense will be developing, in consultation with and with

the assistance of EPA, a risk assessment model or protocol to use at

military ranges. This risk assessment model or protocol will provide an

assessment of risks posed by military munitions and UXO at the range,

as well as the human health and environmental risks posed by the

constituents to: (1) Provide an estimate of the risks posed by military

range conditions; and (2) to serve as a tool for assessing (a) the

effectiveness of a given response at addressing those risks and (b) the

potential consequences (either positive or negative) of implementing a

response targeted at addressing a specific risk. The Department of

Defense, in conjunction with EPA, will seek Federal land manager,

State, American Indian tribe, and public input during the development

of the risk assessment model or protocol. Because of the importance of

this model/protocol, an interim version is to be developed and made

publicly available prior to the promulgation of the final rule. A final

version will be developed and made publicly available no later than 1

year after the final rule is promulgated.

It is equally important to note that, since the explosives safety

element of the overall range RA examines the identified risks posed by

military munitions and UXO on the range, an evaluation of these risks

must be conducted concurrently with the development of the RE plan,

especially if on-range data collection is contemplated. Even if very

limited information on potential explosives safety hazards exists, any

such information is critical to assessing the practicality of on-range

actions and to developing the explosives safety plan (which must be

submitted to DDESB for approval before commencing any on-range

activity). Like the explosives safety risk assessment, the constituent

risk assessment examines the risks posed by constituents known or

suspected of being present on the range. The preliminary phases of this

assessment also will need to be conducted concurrently with the

development of the RE plan, since the information requirements for the

constituent risk assessment are critical to focusing investigative

efforts. Furthermore, available data on the constituents known to be or

suspected of being on the range are critical to developing a health and

safety plan for on-site workers.

d. Public and government agency involvement: During the RE, the

public, government agencies, and American Indian tribes have access to

validated information about range conditions and the potential hazards

posed by the site. In addition, the public will have access to the

final RE report and any related decision documents. As with the RA/AR,

access to this information is through the information repository, the

[[Page 50817]]

DoD POC, the EPT (if one exists), the RAB (if one exists), and formal

or informal meetings. Furthermore, before beginning the RE, the DoD

component responsible for that range will send a written notice to

appropriate Federal, State, and local officials informing them that

these activities will be starting.

If a formal RE report is prepared, then a 45-day public comment

period on the report will occur, as well as a public availability

session if requested. If the recommendation is to proceed directly to

the SSRE, however, a letter report will summarize the RE findings and

the public comment period will occur on the SSRE report. Following the

public comment period, the Department of Defense will develop written

responses to significant comments received during the comment period

and consider any issues brought out by these comments. A copy of the

draft decision document will be provided to the appropriate Federal or

State agency, American Indian tribe, and Federal land manager for

concurrence.

5. Range Evaluation Findings

The goal of an RE is to couple existing information with focused

information collection to assess the risk posed by the military

munitions and other constituents on the military range. This

information is necessary to make informed risk management decisions.

Once the objectives set for the RE are reached, the findings and

conclusions will be presented in a formal RE report. Depending on the

scope and findings of the RE, the RE report also will make one of the

following recommendations:

(1) Conduct recurring reviews because the quantitative analyses

demonstrated that all identified risks are effectively managed and will

remain effectively managed over the long term.

(2) Issue a TI determination because, while a risk remains, there

are no available alternatives capable of addressing the risk.

Typically, recommendations for other appropriate control measures and

recurring reviews will be a part of a recommendation for a TI

determination.

If the findings of the RE demonstrate a need for a site-specific

response to address remaining risks, the Department of Defense may

prepare a letter report instead of an RE report and proceed directly to

the SSRE. If a letter report is prepared, then the DoD organization

conducting the response must prepare a formal decision document that

summarizes the findings of the RE, identifies the hazards requiring a

site-specific response, and describes the anticipated scope and

starting of the SSRE. This decision document will be made available to

the public, and concurrence will be sought from appropriate Federal,

State, and American Indian tribal officials.

If, however, the responsible DoD component recommends either

proceeding to the recurring review process or issuing a TI

determination, the responsible DoD component will prepare a formal RE

report, publish a notice of availability and a brief description of the

RE report in a major local newspaper of general circulation, and

announce a 45-day period for submission of written comments to the DoD

POC for that military range. If requested, the Department of Defense

also will hold a public meeting or availability session. Following the

comment period, the Department of Defense will develop written

responses to significant comments received during the comment period,

consider any issues brought out by these comments, and prepare a formal

decision document on which recommendation will be adopted. A copy of

the decision document and all supporting information will become part

of the administrative record for the range, and a copy of the decision

document will be mailed to appropriate government agencies and the

current property owner.

6. Site-Specific Response Evaluation

An SSRE examines various response alternatives that address risks

posed by the range which have not been or cannot be effectively

addressed by ARs. The SSRE process is similar to the feasibility study

under CERCLA; however, there is one very important distinction:

explosives safety is a frequent overriding concern. If a given response

alternative cannot minimize explosives safety risks, then it will be

dropped from consideration. EPA stated in the preamble to the final NCP

that short-term effectiveness:

* * * will consider who may be exposed during the remedial action,

what risks those populations may face, how those risks can be

mitigated, and what risks cannot be readily controlled. Workers are

included in the population that may be affected by short-term

exposures. (55 FR 8722, March 8, 1990)

Furthermore, the NCP explains that the threshold assessment of

overall protection ``draws on the assessments of other evaluation

criteria,'' which specifically includes the short-term effectiveness

(40 CFR 300.430(d)(iii)(A)). Hence, in the remedy selection process,

worker safety is not only considered when determining the short-term

effectiveness of a remedy, but is also an integral part of the analysis

in determining whether a remedial alternative meets the threshold

requirement of overall protectiveness. As EPA stated in response to

comments on the proposed NCP:

EPA agrees that unacceptable short-term impacts can cause an

alternative to be considered non-protective of human health and the

environment and can remove that alternative from consideration as a

viable option. (55 FR 8725, March 8, 1990)

EPA adopted a similar approach, in which one factor carries more

weight than others, in developing the evaluation process under the NCP

(40 CFR 300). Under the NCP, EPA considers overall protection of human

health and the environment and compliance with ARARs as ``threshold

criteria'' that each alternative must meet to be eligible for further

consideration.

The Department of Defense intends to identify and address ARARs

exactly as prescribed under CERCLA and in the NCP. In the event that

the Department of Defense wishes to waive an ARAR, it will justify the

waiver under the criteria and processes stipulated under CERCLA and in

the NCP. The Department of Defense will provide a written description

of the ARAR to be waived; the waiver type to be invoked; and the

justification for invoking the waiver. The Department of Defense will

provide regulators with the opportunity to review and concur on ARAR

waivers, as appropriate. The provisions of CERCLA Section 121(f)(2)(B),

concerning a State's ability to challenge ARAR waivers, remains

unaffected by this range rule.

a. The Department of Defense screening process: The NCP allows use

of a screening process to reduce the number of alternatives to be

considered in detail if a wide array of alternatives initially is

developed. The screening process involves three evaluative criteria:

(1) Long- and short-term effectiveness; (2) long- and short-term

implementability; and (3) long- and short-term cost-effectiveness.

Effectiveness of alternatives refers to their overall performance in

eliminating, reducing, or controlling current and potential health

risks, both during planning and implementation. Short-term

effectiveness includes consideration of risks to workers who are

involved in conducting the response. EPA guidance allows, at the

screening process, elimination of alternatives that are clearly

unacceptable in terms of short- and long-term human health risks. EPA

guidance further provides that this evaluation is based primarily on

many simplifying assumptions and on professional judgment at the

screening

[[Page 50818]]

stage and is intended to identify alternatives with clearly

unacceptable short-term risks. At DoD range sites covered by the

proposed rule, the Department of Defense anticipates that the explosive

risks posed by military munitions to response personnel will warrant

screening out response alternatives that might otherwise be considered

at typical CERCLA sites. If a given response alternative cannot provide

adequate explosives safety, this will result in its elimination from

consideration. If however, none of the on-range response alternatives

identified provide for adequate explosives safety for workers involved

in the response, the Department of Defense must consider other

alternatives that will prevent the situation from worsening, or that

will prevent or control releases of UXO or other constituents from the

range, or prevent community exposure.

b. Scope of the site-specific response evaluation:As with REs, the

Department of Defense intends that the SSRE be a highly focused

investigation of response alternatives to address a specific risk.

Where similar risks were successfully addressed at other ranges, the

SSRE should focus on only those alternatives, rather than on conducting

research and development of alternative technologies. 10 In

recent years, EPA has adopted a similar philosophy and now advocates

examination of ``presumptive remedies.'' Presumptive remedies are

preferred technologies for common categories of sites, based on

historical patterns of remedy selection, and scientific and engineering

evaluation of performance. Focusing on developing standardized

approaches for addressing the identified risks posed by a military

range would allow streamlining of the process, provide consistent

resolutions when dealing with recurring problems, and usually result in

significant savings.

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\10\ In August 1996, the Department of Defense established a

UXO Technology Executive Committee that will centralize the efforts

on research, development, and management of technology for UXO

detection, neutralization, and remediation.

---------------------------------------------------------------------------

c. The site-specific response evaluation plan: The Department of

Defense intends this focusing effort to lead to the development of an

SSRE plan. The SSRE plan will be a single, concise document that

provides all necessary information about the objectives established for

the SSRE, the rationale for those objectives, and how those objectives

will be achieved. As necessary, the document will detail sampling and

analysis protocols, safety requirements, data analysis procedures, or

treatability studies required to complete the SSRE. The SSRE plan will

be part of the administrative record, and the Department of Defense

will publish a notice of its availability in a local newspaper. The

notice will summarize the purpose of the document and inform the public

how to gain access to it. The Department of Defense will be issuing

detailed guidance on how to conduct an SSRE and how to effectively

convey the information in the SSRE plan to the general public.

(1) Conducting the site-specific response evaluation. Once the SSRE

plan is complete, the first step in conducting an SSRE is to identify a

preliminary list of objectives for the response. These preliminary

objectives will depend on the various site-specific factors such as the

type of problems to be addressed, environmental setting, and subsequent

land use. The second step is to identify general classes of response

actions that meet or exceed the preliminary objectives identified for

the response. The third step is to determine or estimate the scope of

the response using an appropriate unit of measure. This can be, for

example, the quantity of military munitions or media present or the

size of the range. This determination allows elimination from further

consideration of remedial alternatives that are incapable of treating

the necessary quantity of military munitions or contaminated material

in a reasonable time frame. The fourth step is to identify and screen

specific technologies and, within a class of technologies, options for

the actual treatment process. The fifth step is detailed evaluation of

the effectiveness of the remaining options. The sixth and final step is

to identify the alternatives or combinations of alternatives for a more

detailed evaluation.

Any alternative that remains under consideration after the final

step may require individual treatability studies, if such studies are

needed, to provide sufficient data to: fully assess the alternative's

suitability; support its design and implementation (if selected); or

refine cost estimates and reduce performance uncertainties.

Treatability studies are not required for all alternatives; if enough

information exists to allow an accurate evaluation of each remedial

alternative without conducting treatability studies, the Department of

Defense will weigh the cost and time of conducting such a study against

the potential benefits.

The detailed analysis of range response alternatives consists of

examining each alternative against the following nine criteria, which

are used by EPA in evaluating CERCLA remedial alternatives. A

comparative analysis of the proposed alternative to each of the other

alternatives is then performed. In developing these criteria, the

Department of Defense adopted the basic concepts embodied in the nine

evaluation criteria used to assess remedial alternatives under the NCP.

(1) Overall protection of human health and the environment

(including explosives safety and natural resources).

(2) Compliance with ARARs established under Federal and State law.

(3) Long-term effectiveness and permanence.

(4) Reduction in toxicity, mobility, quantity, or volume.

(5) Short-term effectiveness.

(6) Implementability.

(7) Cost.

(8) Acceptability to appropriate Federal and State officials.

(9) Community (including property owner) acceptance.

Explosives safety and protection of human health, including risks

posed to response personnel, are of paramount concern. Under EPA

guidance, the detailed evaluation of responses resulting from each

alternative must consider short-term risks. EPA considers the short-

term risk to response personnel in evaluating whether a proposed

remedial alternative meets the threshold criterion of overall

protection of human health and the environment. The Department of

Defense expects that explosives safety and risk to response personnel

will be recurring issues and overriding considerations in the detailed

evaluation of alternatives for range responses.

The first criterion addresses the ability of each alternative to

protect human health and the environment from the acute, chronic, and

carcinogenic effects of exposure to the constituents present at the

range. This criterion draws on the constituent risk assessment and the

evaluations of other criteria, especially the long- and short-term

effectiveness evaluations. The Department of Defense believes that, in

evaluating this criterion at military ranges subject to this proposed

rule, a balance will need to be struck between protection of human

health (including explosives safety) and protection of the environment.

For example, while it may be feasible to excavate UXO to a depth of

several feet over a large area, doing so will have a negative impact on

the local environment. If that area also were critical habitat to a

threatened or endangered species, then the benefits of UXO removal

would have to be balanced against the disruption of that species'

habitat. Furthermore, if a response alternative cannot minimize

explosives safety risks, it will be

[[Page 50819]]

dropped from consideration. In assessing this criterion, an explosives

safety plan addressing all alternatives will be submitted to the DDESB

for evaluation.

Compliance with Federal and State ARARs is identical to the

evaluation criteria required under CERCLA and the NCP. This criterion

requires evaluation of the ability of each alternative to comply with

chemical-specific, action-specific, and location-specific requirements

that are either directly applicable to the response action or, in best

professional engineering judgment, similar enough to the conditions of

the site and response action to warrant their use (termed by EPA as

``relevant and appropriate requirements''). For example, the Department

of Defense's on-site response actions must comply with the substantive

requirements of RCRA. Under CERCLA, the Department of Defense plans to

adopt the process established in the NCP for waiving an applicable

requirement. If required, concurrence of that waiver must be sought

from the appropriate Federal or State agencies. For the assessment of

the effectiveness of an AR, compliance with applicable requirements is

required only to the extent practicable given the exigencies of the

situation. In this way, this requirement is directly analogous to the

requirement for ARAR compliance during a CERCLA removal action.

The long-term effectiveness evaluation assesses the residual risk

posed by military munitions or other constituents that will remain at

the range following the completion of the response action, and

considers the reliability and adequacy of those actions in providing a

long-term or permanent solution to the hazard posed at the range. The

Department of Defense also believes that this criterion should consider

any long-term liabilities associated with the response. For example, in

evaluating a response action when wastes will be shipped to an off-site

commercial facility for treatment or disposal, the Department of

Defense should consider the potential CERCLA liability incurred by that

action.

Evaluation of how the response reduces the explosives safety risks,

toxicity, mobility, quantity, or volume of the military munitions or

constituents (as appropriate) involves assessment of the effectiveness

of the alternative at treating the military munitions or other

constituents present on the range and the quantity that will remain

following the response action.

The short-term effectiveness criterion addresses the risks or

impacts of the alternative from the start of the action through to the

time when the response objectives are achieved. Under this criterion,

each alternative is evaluated to determine the degree of protection

afforded to on-site workers and the surrounding community during

implementation. Each alternative is also examined for possible adverse

environmental impacts arising from implementation of the response or

the time required to achieve the response action's objectives.

The implementability criterion assesses both the technical and

administrative feasibility of implementing each alternative. Included

in this assessment are (1) consideration of the availability of the

necessary resources to implement the alternative, (2) an assessment of

the reliability of the alternative (also a consideration under the

short- and long-term effectiveness criteria), and (3) whether the

action will impede other responses at the range. Another aspect of this

assessment is the determination of the requirements for interaction

with other Federal, State, or local agencies or American Indian tribes.

For example, this assessment may require determining the need for

obtaining a permit for a given alternative. Another factor the

Department of Defense may consider in the assessment under this

criterion is the availability of on- and off-range treatment and

disposal units for wastes generated by the response action. In the case

of chemical munitions, the statutory provisions of 50 U.S.C. 512a

regulate the transportation, destruction, and open-air testing of these

munitions; thus, the availability of the treatment or disposal capacity

at the nearest chemical military munitions stockpile facility may be

one of the most important factors limiting response alternatives. The

Department of Defense is currently developing mobile treatment systems

for these chemical munitions in an effort to preclude any need to

transport them off-site.

Cost evaluation requires assessment of the direct and indirect

capital costs as well as the operating and maintenance (O&M) costs

associated with the alternative. O&M costs are usually a significant

portion of the overall costs. The evaluation of this cost should

consider any long-term financial liability associated with the

response.

Assessment of the last two criteria, acceptability of each

alternative to Federal and State agencies and community acceptance,

requires consultation with these parties. By this point in the range

response process, the public and government agencies should be fully

engaged and their concerns already addressed. Some of the ways the DoD

organization conducting the

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