# Closed, Transferred, and Transferring Ranges Containing Military Munitions

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-25269

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 26, 1997
- **Citation:** 62 FR 50796

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-25269. Public record. Not legal advice.