Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties

SUMMARY: In response to section 107 of the Federal Facility Compliance

Act (FFCA) of 1992, EPA is today finalizing a rule that identifies when

conventional and chemical military munitions become a hazardous waste

under the Resource Conservation and Recovery Act (RCRA), and that

provides for the safe storage and transport of such waste. Today's

final rule also amends existing regulations regarding emergency

responses involving both military and non-military munitions and

explosives. This rule also exempts all generators and transporters of

hazardous waste, not just the military, from the RCRA manifest for the

transportation of hazardous waste on public or private right-of-ways on

or along the border of contiguous properties, under the control of the

same person, regardless of whether the contiguous properties are

divided by right-of-ways. This revision is expected to reduce the

paperwork burden, for hazardous waste generators whose property is

divided by right-of-ways without loss in protection of public health.

EFFECTIVE DATE: This rule is effective on August 12, 1997.

ADDRESSES: The public docket for this rulemaking is available for

public inspection at EPA's RCRA Docket, located at Crystal Gateway,

First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The

regulatory docket for this final rule contains a number of background

materials. To obtain a list of these items, contact the RCRA Docket at

703-603-9230 and request the list of references in EPA Docket #F-97-

MMF-FFFFF.

FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9:00a.m.-6:00

p.m. EST, toll-free, at 800-424-9346; 703-412-9810 from Government

phones or if in the Washington, D.C. local calling area; or 800-553-

7672 for the hearing impaired. For more detailed information on

specific aspects of the rulemaking, contact Ken Shuster by calling 703-

308-8759 or by writing, to U.S. Environmental Protection Agency, Office

of Solid Waste, Permits and State Programs Division, 401 M St., S.W.

(Mailcode 5303W), Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION: This rule is available on the Internet.

Please follow these instructions to access the rule electronically:

From the World Wide Web (WWW), type http://www.epa.gov/epaoswer,

then select option for Rules and Regulations.

This report can also be accessed from the main EPA Gopher menu in

the directory: EPA Offices and Regions/Office of Solid Waste and

Emergency Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste

Gopher: gopher.epa.gov

Dial-up: 919-558-0335

FTP: ftp.epa.gov

Login: name

Password: Your Internet address

Files are located in /pub/gopher/OSWRCRA/hazwaste

The official record for this action is kept in a paper format.

Accordingly, EPA has transferred all comments received into paper form

and placed them into the official record, with all the comments

received in writing. The official record is maintained at the address

in the ``ADDRESSES'' section at the beginning of this document.

EPA's responses to comments have been incorporated in a ``Response

to Comments'' document, which has been placed into the official record

for this rulemaking. The major comments and responses are discussed in

the Response to Comment sections of this preamble.

Preamble Outline

I. Legal Authority

II. Background

III. Summary of Significant Changes From Proposed Rule

IV. Description of the Final Rule and Responses to Comments

A. Description of Major Affected Parties

B. Scope, Applicability, and Definition of Military Munitions

C. Separate CFR Part for Military Munitions

D. Uniform National Standards

E. When Military Munitions Become a Solid Waste

F. When Unused Military Munitions Become a Solid Waste

1. Section 266.202(b)(1)--Munitions That Have Been or are

Abandoned by Being Disposed of, Burned, or Otherwise Treated Prior

to Disposal

2. Section 266.202(b)(2)--Munitions Removed From Storage for the

Purposes of Treatment or Disposal

3. Section 266.202(b)(3)--Leaking or Deteriorated Munitions

4. Section 266.202(b)(4)--Munitions Determined by an Authorized

Military Official to be a Solid Waste

G. When Military Munitions Are Not a Solid Waste

1. Intended Use

a. Section 266.202(a)(1)(i)--Military training exercises.

b. Section 266.202(a)(1)(ii)--Weapons testing.

c. Section 266.202(a)(1)(iii)--Range clearance operations.

2. Section 266.202(a)(2)-- Disassembly operations.

H. Military Munitions On Closed and Transferred Ranges

I. When Used or Fired Military Munitions Become Solid Waste,

including Military Munitions That Land Off-Range

J. Waste Materials Derived from Munitions Manufacture

K. Chemical Munitions

L. Generator and Transporter Standards

M. Storage Standards

1. Conditional Exemption for Waste Military Munitions in Storage

a. Conditional Exemption for Waste Non-chemical Munitions

(1) Legal Basis for Conditional Exemption Approach

(2) Implementation and Enforcement Issues

(3) Amendments to DDESB Standards

b. Waste Chemical Munitions

(1) Applicability of RCRA Requirements to Waste Chemical

Munitions

(2) Inapplicability of Conditional Exemption

(3) Inapplicability of RCRA Storage Prohibition

2. Subpart EE

N. Permit Modifications to Receive Off-Site Waste Munitions

O. Environmental Justice

P. Emergency Responses

Q. Manifest Exemption For Transport of Hazardous Waste In Lieu

of ``On-Site'' Redefinition

V. State Authority

VI. Administrative Requirements/Compliance with Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866

1. Cost Analysis

2. Benefits Analysis

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates

VII. Submission to Congress and the General Accounting Office

I. Legal Authority

These regulations are being finalized under the authority of

sections 2002, 3001-3007 (including 3004(y)), 3010, 7003, and 7004 of

the Solid Waste Disposal Act of 1965, as amended, including amendments

by RCRA and the FFCA (42 U.S.C. 6912, 6921-7, 6930, and 6973-4).

II. Background

Section 107 of the Federal Facility Compliance Act (FFCA) of 1992

[[Page 6623]]

amended the Resource Conservation and Recovery Act (RCRA) by adding a

new section 3004(y) that requires the U.S. Environmental Protection

Agency (EPA) to propose, after consulting with the Department of

Defense (DOD) and appropriate State officials, and then to finalize

regulations that identify when conventional and chemical military

munitions become hazardous waste subject to Subtitle C of RCRA, and

that provide for the safe storage and transportation of such waste.

Such regulations are to assure the protection of human health and the

environment. This final rule responds to this Congressional mandate.

The Agency consulted with DOD and appropriate State representatives

prior to the promulgation of this rule, as the statute requires.

Records of these meetings and information provided to EPA have been

included in the official docket of this final action.

EPA proposed the rule on November 8, 1995 (60 FR 56468). The public

comment period ended on February 2, 1996. As mentioned in the proposal,

the Agency focused on several key issues that have arisen in the

application of RCRA to military munitions, or that have been raised by

DOD, States, or citizen groups. The six major issues raised during the

development of the proposed rule and addressed in today's final rule

are the following: (1) At what point does an unused munition become a

RCRA ``hazardous waste,'' potentially subject to RCRA permitting and

technical management standards? Specifically, at what point in the

process do unused munitions slated for destruction first become subject

to RCRA? (2) Should RCRA hazardous waste management standards apply to

the use of munitions in weapons testing or military training exercises?

(3) How do RCRA hazardous waste regulations apply to emergencies

involving military munitions and explosives and non-military

explosives? (4) In what way (if any) do RCRA requirements apply to

unexploded ordnance and environmental contamination at military ranges,

especially ranges that are closed or transferred? (5) Once it has been

determined that a munition is a hazardous waste for regulatory

purposes, what management standards are needed to ensure safe

transportation and storage, while protecting human health and the

environment? (6) Should the definition of ``on-site'' be revised to

simplify compliance with RCRA manifest standards at contiguous

facilities cut by right-of-ways?

In developing the final rule, EPA reviewed the comments received

from 124 organizations and individuals on the proposed rule, including

DOD, other Federal agencies, States, universities, associations,

corporations, and citizen groups. These comments can be found in the

official docket for this final rule. Responses to significant comments

can be found in the preamble of today's rule.

In addressing each of the above six issues, EPA proposed (in the

November 8, 1995 Federal Register) an option followed in some cases by

a discussion of ``alternative options'' on which the Agency requested

comment. Because of the length and complexity of the issues and options

proposed, the Agency is not revisiting or summarizing these in this

final rule preamble to any great extent. The reader may refer to the

proposed notice for a detailed account of the original proposal.

Instead, this final rule preamble expands on the discussion of the

selected alternative, which appeared in the proposal, in order to

provide additional discussion of the finally selected option. Following

that discussion is a response to comments section for each topic.

Together, the purpose of these discussions is to explain and clarify

the Agency's final direction.

III. Summary of Significant Changes From Proposed Rule

Following is a summary of the significant changes to the proposed

rule in today's final rule. Where the Agency proposed multiple options,

this summary identifies those alternatives that EPA has incorporated

into today's final rule.

The final rule consolidates the requirements applicable solely to

military munitions in a new subpart M under 40 CFR Part 266.

The applicability of proposed 40 CFR 264 and 265 subparts EE for

storage of waste munitions and explosives is being expanded to be

available to owners and operators of all units storing such wastes, not

just the military. In addition, EPA has decided to finalize the second

alternative discussed in the storage section of the proposed preamble.

This is the conditional exemption alternative, under which non-chemical

waste military munitions that otherwise meet the definition of

``hazardous waste'' are not regulated under RCRA as a hazardous waste

so long as they meet all of the conditions set forth in Sec. 266.205.

Today's rule also finalizes the conditional exemption approach for

transportation of waste munitions when shipped between military

installations in accordance with DOD standards.

The Agency is today postponing final action on the status of

military munitions left on closed or transferred ranges. This will

enable the Agency to thoroughly evaluate the numerous public comments

as well as the DOD Range Rule which is currently under development.

Instead of modifying the definition of ``on-site,'' as proposed,

the final rule revises 40 CFR Part 262 to exempt from the RCRA manifest

requirements shipments on right-of-ways on (or bordering) contiguous

properties under the control of the same person, where the property is

cut by right-of-ways. The title for today's rule also reflects this

change.

IV. Description of the Final Rule and Responses to Comments

This rule finalizes the proposed ``Military Munitions Rule:

Hazardous Waste Identification and Management; Explosive Emergencies;

Redefinition of On-Site'' (60 FR 56468, November 8, 1995). This section

explains the Agency's final action, based on the rationale presented in

the proposal and the Agency's review of the public comments and further

examination of the proposed options.

To facilitate the reader's review of this final rule and to

streamline the overall structure, this section also contains the

Agency's responses to the most significant comments after each of the

topics discussed. If a particular section does not contain a response

to comment section, then either the Agency did not receive comment on

this topic or it has chosen to place its response in the background

document entitled Military Munitions Rule Response to Comments

Background Document. This background document contains a complete

discussion of the Agency's responses to comments and can be found in

the docket for this rulemaking. This document provides a complete

record of the public comments followed by the Agency's responses. To

obtain a copy, please refer to the ``ADDRESSES'' section of this

preamble.

A. Description of Major Affected Parties

Since the primary focus of this final rule is military munitions,

the major regulated parties are the U.S. Departments of Defense,

Energy, and Transportation (U.S. Coast Guard) and the National Guard

(the inclusion of these is discussed below in section B). Even so,

various sections of the rule are expected to impact a number of other

groups, as well. The emergency response portions of this rule apply to

non-military munitions and explosives and non-military personnel as

well as military. In addition, the 40 CFR 264 and 265 subpart EE

standards for waste munitions and explosives are also available for use

by non-military

[[Page 6624]]

entities. The exemption from manifest requirements for transportation

along public roads on contiguous properties owned by the same person

that are divided by a public right-of-way, applies to non-military as

well as military wastes and properties. The rest of the proposed rule

was developed primarily for the military, based, in part, on the EPA's

review of RCRA and current military munitions management standards and

practices.

Response to Comments

In response to commenter inquiries and suggestions regarding the

applicability of the proposed provisions (primarily storage standards

and range standards), EPA is clarifying and modifying certain

provisions to accommodate some non-military situations. For example,

one commenter suggested that munitions or explosives controlled by

other government agencies, e.g., NASA, should be included within the

scope of the rulemaking if those agencies have comparable storage

standards. Other commenters suggested that EPA clarify that the final

rule applies to military contractors to the extent that they comply

with the appropriate DOD requirements. Further, for military

contractors, where the distinction between military munitions and

munitions produced for the private sector or other public sector

organizations is unclear (e.g., the same production lines and storage

units are used), the final rule should clarify that it also applies to

waste materials associated with munitions produced for the private or

public sector to the extent the management of these wastes also

complies with the appropriate DOD requirements. Several commenters

suggested that subpart EE should be made available for non-military and

private concerns.

In response to these comments, EPA has retained the subpart EE

standards in 40 CFR Parts 264 and 265, and has expanded their

availability to all munitions and explosives, not just military, in

order to make subpart EE available to facilities that store non-

military munitions or explosives and facilities that are not subject to

Department of Defense Explosive Safety Board (DDESB) jurisdiction.

Thus, commercial/private ventures that operate in compliance with DDESB

storage requirements and that also produce munitions for the private

sector that are stored in the same manner, as well as all commercial

and private ventures that store non-military munitions or explosives,

regardless of compliance with the DDESB standards, may avail themselves

of subpart EE for all such munitions/explosives wastes. Similarly,

other Federal agencies (e.g., National Aeronautical and Space

Administration (NASA), Federal Bureau of Investigations (FBI), and the

Bureau of Alcohol, Tobacco, and Firearms (BATF)) that store waste

munitions and explosives may also apply for a storage permit under

subpart EE. In those cases where the owner/operator's practices are

comparable or identical to the DDESB-prescribed practices, they could

expect to satisfy the subpart EE standards.

B. Scope, Applicability, and Definition of Military Munitions

The definition of ``military munitions,'' finalized in 40 CFR

260.10, establishes the scope for much of today's rule. In 40 CFR part

266, subpart M, today's rule establishes special procedures and

management standards for waste military munitions. The term ``military

munitions'' is defined to include all types of both conventional and

chemical ammunition products and their components, produced by or for

the military for national defense and security (including munitions

produced by other parties under contract to or acting as an agent for

DOD--in the case of Government Owned/Contractor Operated [GOCO]

operations). This definition clarifies, as it did in the proposal, that

military munitions may be under the control of the Department of Energy

(DOE), even though DOE is not usually considered to be within the

``military.'' DOE maintains the nation's nuclear arsenal for the

military, and maintains munitions and personnel to protect the arsenal.

The definition clarifies that military munitions may also be under the

control of the U.S. Coast Guard (Department of Transportation), and the

National Guard (which includes the State National Guard), as well as

the Department of Defense and its various components. The U.S. Coast

Guard and National Guard are generally considered to be within the

military. Chemical agents and munitions are given the same definition

as in 50 U.S.C. section 1521(j)(1).

For purposes of today's rule, the term ``military'' is also meant

to include DOE and the other organizations listed above, as well as

other parties under contract or acting as an agent for DOD, as long as

they are managing ``military munitions.'' Because the term ``military''

appears in the rule without the term ``munition,'' the term

``military'' has been defined in section 266.201 to make it clear that

these parties are included with the other organizations listed above in

the scope of the various provisions of today's rule.

The definition of ``military munitions'' lists a number of examples

of military munitions components, including propellants, explosives,

pyrotechnics, bulk chemical warfare and riot control agents, smokes,

incendiaries, warheads, cluster munitions and dispensers, and depth and

demolition charges; and product examples, including rockets, guided and

ballistic missiles, bombs, mines, grenades, mortar rounds, artillery

and small arms ammunition, torpedoes, and chemical munitions. The

definition excludes wholly inert items and improvised explosive

devices, for example, home made bombs (which are non-military) 1.

The definition also excludes nuclear weapons, nuclear devices, and non-

nuclear components thereof (including subparts of components) managed

under DOE's nuclear weapons program, which still must have necessary

sanitization 2 operations completed thereon under the requirements

of the Atomic Energy Act (AEA) of 1954. The phrase regarding

``sanitization'' has been added to the definition of ``military

munitions'' to make it clear that any non-nuclear components of nuclear

weapons or devices that do not require sanitization under the AEA are

``military munitions'' under today's rule. A phrase has also been added

to the end of the definition of ``military munitions'' to clarify that

upon completion of the sanitization of non-nuclear components (or

component subparts) of nuclear weapons or devices, the remaining

materials are considered ``military munitions'' that, thereafter, are

covered by subpart M of Part 266 of today's rule. Any component of a

nuclear weapon or device that is source, special nuclear, or by product

material as defined by the Atomic Energy Act of 1954, as amended, would

not be included in this definition, nor would they otherwise be subject

to RCRA requirements, since these materials are excluded from the

statutory definition of solid waste under section 1004(27).

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\1\ Improvised explosive devices, or IEDs, are non-standard

explosive devices made from either military or non-military

materials by non-military personnel.

\2\ Sanitization means the irreversible modification or

destruction of a component or part of a component of a nuclear

weapon, device, trainer, or test assembly as necessary to prevent

revealing classified or otherwise controlled information (e.g.,

unclassified information that is restricted from the standpoint of

export control because of its significance for nuclear explosive's

research, development, fabrication, or proliferation purposes) as

required by the Atomic Energy Act of 1954, as amended.

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EPA considered including in this rule all of the non-nuclear

components of

[[Page 6625]]

nuclear weapons which are managed by DOE under its responsibilities for

the Nation's nuclear weapons program as provided in the AEA of 1954

(U.S.C. section 2011 et seq.). As the Agency stated in its proposal, an

analysis of the legislative history associated with section 107

resulted in the conclusion that the FFCA does not contemplate the

inclusion of nuclear weapons within the scope of this rule. The

statutory language and legislative history of section 107 clearly

demonstrate the intent of Congress that EPA develop regulations that

address conventional and chemical munitions with no mention being made

of nuclear weapons or their components. Furthermore, EPA recognizes

that DOE's practices and procedures for the management of nuclear

weapons under the AEA, as well as the potential impacts on DOE

operations, are significantly different from those of DOD pertaining to

conventional and chemical munitions that are addressed in this rule. As

a consequence, EPA has concluded that non-nuclear components of nuclear

weapons are excluded from the definition of ``military munition'' until

all necessary AEA required sanitization has been completed. After

sanitization, EPA believes these materials are no different from other

munitions managed for national defense, and, therefore, are included

within the scope of this rule. Under today's rule, however,

conventional or chemical munitions that DOE produces or manages for the

military, or maintains and uses (including for training purposes) to

protect the nuclear arsenal, are ``military munitions'' under this

final rule.

Response to Comments

The Agency received a number of comments regarding the extent to

which this rule should or should not apply to other government agencies

and to the private sector, as well as the military. In addition to

military munitions under the control of DOD, DOE, the U.S. Coast Guard,

and the National Guard, the rule also applies to other parties (e.g., a

private company) producing or managing military munitions under

contract to, or as an agent for, DOD or these other agencies. Since it

is clear in the definition of ``military munitions'' that the

definition applies to all military munitions regardless of who is

managing them, no change has been made to the rule.

Comments were also received on specific terms in the definition or

the need for further clarifications to the proposed definition of

``military munitions.'' Some of these comments are reflected in the

final definition of ``military munitions'' at 40 CFR part 260.10. For

example, the final definition reflects the comments that ``mortar

rounds'' and ``artillery ammunition'' are more accurate than ``mortar''

and ``artillery,'' which are the weapons, not the ammunition. On the

other hand, ``napalm'' was not added to the definition because it is

covered by the term ``incendiaries.''

C. Separate CFR Part for Military Munitions

In the proposed preamble, EPA solicited comment on DOD's request

that EPA create a separate part or subpart for military munitions in

order to consolidate and simplify the regulations for the military,

based on the argument that this would increase understanding and

thereby enhance compliance. In today's rule, EPA has consolidated all

the requirements solely applicable to military munitions in 40 CFR Part

266 subpart M, with appropriate cross references. Requirements

applicable but not unique to military munitions (e.g., treatment and

disposal standards) are retained elsewhere and referenced in

Sec. 266.200(b) of subpart M. EPA recognizes that some of the cross-

references in subpart M are redundant with Sec. 266.200(b), but has

included them for clarity.

Response to Comments

The creation of a separate part for military munitions was

supported by several commenters, in addition to DOD. EPA agrees with

the commenters that there is a benefit to placing all requirements

pertaining to military munitions in the same CFR part, given DOD's

nationwide presence, and logistical and operational needs. The Agency

also agrees that consolidation of the standards for waste military

munitions could simplify integration by DOD of these rules with the

DDESB and the Service-specific requirements for the management of all

military munitions (including waste munitions). This consolidation

should facilitate DOD's compliance as well as State implementation and

oversight activities. In proposing this option, DOD recommended that

the standards be placed in 40 CFR Part 269 (which has already been

taken by another rulemaking proposal). In supporting this option, EPA

has decided to place it in 40 CFR Part 266, which is being used to

address special types of waste and waste management facilities.

D. Uniform National Standards

In the proposed preamble, EPA asked for comment on an alternative

that would have prohibited States from enforcing broader or more

stringent requirements with respect to military munitions. EPA has not

adopted this approach in today's rule.

Response to Comments

The Agency received an overwhelming response to this proposed

alternative. While EPA recognizes DOD's need for national consistency

in managing its munitions, including waste munitions, given DOD's

national defense mission, nation-wide presence, and logistical and

operational needs, the Agency has decided not to depart from the

standard RCRA approach in today's rulemaking. Therefore, today's rule

maintains the standard Federal-State relationship embodied in other

parts of the RCRA program. While EPA strongly encourages States to

adopt the terms of today's rule, it acknowledges that States may adopt

requirements with respect to military munitions that are more stringent

or broader in scope than the Federal requirements. See RCRA section

3006 and 3009.

E. When Military Munitions Become a Solid Waste

RCRA section 3004(y) requires EPA to identify when military

munitions become hazardous waste for purposes of Subtitle C of RCRA.

Under the RCRA regulations, materials are considered to be ``hazardous

waste,'' for regulatory purposes, if the following criteria are met:

(1) the material is a ``solid waste,'' as defined in 40 CFR 261.2, and

(2) the material meets the definition of ``hazardous waste'' in 40 CFR

261.3. Today's final action, in keeping with the original proposal,

focuses on the first point--clarifying when munitions become a solid

waste.

Under the existing provisions of 40 CFR 261.2 of the RCRA

regulations, ``solid waste'' is defined as ``discarded material.''

Section 261.2 (a) through (f) provides a detailed regulatory definition

of this term. In particular, Sec. 261.2(b) defines ``discarded

material'' as materials that are abandoned by being disposed of; burned

or incinerated; or accumulated, stored, or treated (but not recycled)

before or in lieu of being disposed of, burned or incinerated. Section

261.2(c) then describes under which circumstances recycled materials

are solid wastes (e.g.,used in a manner constituting disposal or

accumulated speculatively). Today's final action adds a new provision

in Sec. 261.2(a)(2) for military munitions that refers to Sec. 266.202,

which specifies how the regulatory term ``discarded material'' applies

to unused and used military munitions. The following sections of the

[[Page 6626]]

preamble discuss the regulatory definition of solid waste in the

context of three specific categories of military munitions: (l) unused

munitions, (2) munitions being used for their intended purpose, and (3)

used or fired munitions.

F. When Unused Military Munitions Become a Solid Waste

This rule finalizes proposed 40 CFR 261.2(g)(1)(i)-(iv) in 40 CFR

Part 266, subpart M, Sec. 266.202(b)(1)-(4). These paragraphs identify

the specific circumstances under which an unused munition is considered

to be solid waste for regulatory purposes. An unused military munition

becomes a solid waste when: (1) the unused munition is ``abandoned by

being disposed of, burned, or incinerated, or treated prior to

disposal''; (2) the unused munition is removed from storage for

purposes of disposal or treatment prior to disposal; (3) the unused

munition is deteriorated, leaking, or damaged to the point that it can

no longer be returned to serviceable condition, and cannot be

reasonably recycled or used for other purposes (except, of course,

recycling that is like ``discard,'' i.e., placement on the ground,

unless such placement is the result of use as a munition, or burning

for energy recovery); or (4) the munition has been determined by an

authorized military official to be a solid waste.

1. Section 266.202(b)(1)--Munitions That Have Been or Are Abandoned by

Being Disposed of, Burned, or Otherwise Treated Prior to Disposal

Section 266.202(b)(1), proposed as Sec. 261.2(g)(1)(i), specifies

that an unused munition becomes discarded, and, therefore, a solid

waste for regulatory purposes when it is or has been abandoned by being

disposed of (e.g., buried or landfilled), burned or incinerated, or

otherwise treated prior to disposal. Thus, open burning/open detonation

or incineration of unused munitions (except when done during an

emergency response or during training in use of a product) is regulated

under the RCRA Subtitle C standards for hazardous waste, including the

40 CFR Part 270 permit requirements (assuming the waste munitions meet

the Sec. 26l.3 definition of ``hazardous waste''). Similarly, unused

munitions that were buried or landfilled in the past are considered

abandoned, and, therefore, are solid waste, and, if hazardous, they

would become subject to applicable Subtitle C regulation when unearthed

and further managed. EPA emphasizes, as it did in the proposed rule,

that this provision will not bring use of military munitions for their

intended purposes--e.g., the firing of military rounds--within the

regulatory scope of RCRA. The use of a product for its intended purpose

(in this case a military munition), in EPA's view, is not a waste

management activity and does not constitute abandonment or disposal for

the purposes of Sec. 266.202(b)(1).

2. Section 266.202(b)(2)--Munitions Removed From Storage for the

Purposes of Treatment or Disposal

Section 266.202(b)(2), proposed as Sec. 261.2(g)(1)(ii), specifies

that a military munition becomes a solid waste for regulatory purposes

when it is removed from storage in a military magazine or other storage

area 3 for the purposes of disposal, burning, incineration, or

other treatment prior to disposal. Unused military munitions, in EPA's

view, are unused ``products'' comparable to unused commercial products

stored by manufacturers or their customers. Under RCRA, unused products

do not become ``waste'' until they become ``discarded material.'' EPA

believes that an unused product becomes ``discarded'' when an intent to

discard the material is demonstrated. However, ``intent,'' in many

cases, is difficult to discern; therefore, in this rule, EPA has

identified a clear test to determine the military's ``intent'' in the

case of unused munitions. Indeed, this issue is at the heart of the

purpose behind RCRA section 3004(y). Congress instructed EPA to develop

a ``fair and coherent approach'' to identify when military munitions

become a solid waste for Subtitle C purposes, in order to avoid

creating a situation where the courts must constantly interpret unclear

rules. [H.R. Conf. Rep. No. 886, 102d Cong., 2d Sess. 29 (1992)]. The

Agency believes it has chosen a clear, simple, enforceable test that is

similar to the approach the Agency has taken toward commercial chemical

products and fits the unique context of military munitions.

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\3\ The term ``military magazine or other storage area'' refers

to all types of military munitions storage units allowed under the

DOD Explosives Safety Board (DDESB) standards (DOD 6055.9-STD),

which are mandatory for use by all DOD components, including outdoor

or open storage areas, sheds, bunkers, and earth-covered and above-

ground magazines.

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DOD's complex system of accounting and management controls and the

numerous options available to DOD for reconditioning, reuse, and sale,

etc., make it difficult to determine at what point there is an ``intent

to discard'' a particular unused munition. DOD's classification of a

munition in one of the various DOD ``demilitarization'' accounts does

not, in EPA's view, constitute a decision to discard the material

because, pursuant to DOD's practices, such a classification does not

necessarily evidence an intent to discard that munition. Ammunition

classified as ``Condition Code H'' or as ``unserviceable,'' or in a

demilitarization account (such as the Army's Resource Recovery and

Disposition Account) for example, may be either returned to service

after further review, or in some cases after reprocessing; sold for

non-military purposes or to nations that maintain weapons that utilize

these munitions; or otherwise reused, reclaimed, or recycled. Even

usable munitions scheduled for disposal may be called back into

service, if needed, and thus may still also serve a deterrent purpose.

Therefore, in EPA's view, inclusion of a munition in a

``demilitarization'' account or a military determination that a

munition is ``unusable'' for its intended purpose does not, by itself,

constitute an intent to discard that munition.

For these reasons, today's rule does not define stored, unused

military munitions as ``solid waste'' subject to Subtitle C, except as

provided in paragraphs 266.202(b) (3) and (4). In EPA's view, the

appropriate point at which to consider most unused military munitions

to be a solid waste is when the material is finally removed from

storage for the purpose of disposal or treatment prior to disposal. In

practical terms, this provision means that storage of unused munitions

is, for the most part, not subject to RCRA regulation; however, once a

munition is removed from a magazine for the purpose of disposal or

treatment prior to disposal, it is a solid waste and is potentially

regulated under Subtitle C of RCRA.

EPA emphasizes that this provision will trigger RCRA coverage only

where a decision to treat or dispose of the munition has clearly been

made. In many cases, munitions classified as ``unserviceable'' are

removed from storage and sent to central arsenals for evaluation to

determine whether they are, in fact, unusable; whether they can be sold

for use; whether they can be reconditioned for use; whether they can be

recycled or processed for other uses; or whether they should be

disposed of. In these cases, the munition is not being shipped for the

purposes of treatment or disposal, but rather for evaluation. The

munition is to be handled as a waste only if no further evaluation

would take place and the decision to destroy has already been

made.4 Similarly, a

[[Page 6627]]

munition may be removed from storage for the purpose of reconditioning,

recycling or materials recovery without triggering RCRA.

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

\4\ EPA has taken a similar position in the case of

pharmaceuticals returned to the manufacturer. See letter from Sylvia

K. Lowrance, Director, EPA Office of Solid Waste, to Mark J. Schulz,

Pharmaceutical Services, Inc., Browning-Ferris Industries, May 16,

l991.

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

EPA's approach, as supported by many of the public comments, is

also based on the recognition that DOD has in place extensive storage

and transportation standards that, in providing for explosives safety

and security, are also protective of human health and the environment;

and that the military Services' safety record in storing and

transporting all munitions, including waste munitions, has been good.

EPA further believes that there is no compelling environmental or legal

reason to establish an earlier point at which unused munitions are a

solid waste, except in the case of the following: munitions that are

abandoned or disposed of in the past; munitions that are leaking,

deteriorated or damaged to the point they cannot be put into

serviceable condition, recycled, or put to other uses; or that have

been declared a waste by an authorized military official. Also, it is

clearer and, therefore, easier to implement an intent-based test where

a component of the determinant of DOD's intent is when the munition is

physically removed from storage for treatment or disposal rather than

solely trying to figure out when a decision by an appropriate authority

has been made. Even so, Sec. 266.202(b)(4), discussed in section 4

below, retains the more intent-based test for situations where a

decision by an authorized DOD official has clearly been made. More

importantly, however, to move away from the proposed point (when a

munition leaves storage) would significantly, and needlessly, increase

the regulatory burden not only on DOD, but also on regulators (for

enforcement and for permitting), and it could potentially disrupt DOD's

program for the management of military munitions. The Agency has

selected this final approach, in part, because it involves a minimum of

interference with the military's established and proven system for

managing unused munitions, and it will not conflict with the Services'

logistical needs or constraints. Munitions in the active,

demilitarization, and waste accounts are all managed under the same

storage and transportation standards, and they are often stored

together in the same magazines. Thus, the hazards posed by a stored

munition do not change when it is classified as ``unserviceable'' or

placed into a demilitarization account, or when it is scheduled for

treatment or disposal.

EPA has determined that the military's storage standards and

practices for munitions provide a degree of protection that is

comparable to, or better than, what RCRA regulation would provide. The

storage of military munitions is regulated under standards developed

and overseen by the Department of Defense Explosives Safety Board

(DDESB), as well as Service-specific standards, which must be at least

as stringent as the DDESB standards. As mentioned in the proposal, EPA

has reviewed the DDESB standards in detail and concluded that the

technical design and operating standards of the DDESB meet or exceed

RCRA standards in virtually all significant respects. A more detailed

discussion on the differences between the RCRA and DDESB standards may

be found in the preamble of the proposed rule (60 FR 56474), and in the

docket for this rule (A Comparison of RCRA Storage Requirements With

DOD Requirements for Storage of Military Munitions, EPA, October 31,

1995). Again, the DOD safety record for the management of all military

munitions, including waste munitions, has been good.

3. Section 266.202(b)(3)--Leaking or Deteriorated Munitions

Section 266.202(b)(2), discussed above, defines the most common

circumstances under which an unused military munition becomes a solid

waste--that is, when a decision has been made to dispose of or treat it

and it is removed from storage for transportation to a disposal site,

to a treatment unit, or to a storage unit at another facility prior to

treatment or disposal. EPA, however, recognizes (and States and

citizen's groups have pointed out) that under certain circumstances

military munitions in storage may deteriorate to a point where they are

no longer ``products'' in any meaningful sense and indeed may present a

potential safety hazard or environmental threat. To address these

circumstances, Sec. 266.202(b)(3), which finalizes proposed

Sec. 261.2(g)(1)(iii), defines an unused military munition as a solid

waste if it is ``deteriorated or damaged (e.g., the integrity of the

munition is compromised by cracks, leaks, or other damage) to the point

that it cannot be put into serviceable condition, and cannot reasonably

be recycled or used for other purposes.'' For example, if the

stabilizers in a propellant have deteriorated to the point at which

there is such a significant hazard of auto-ignition that the only

options available to DOD are treatment or disposal, that propellant

would be a solid waste. If, however, the propellant had not

deteriorated to this point and could reasonably be reclaimed, it would

not be a solid waste.

Similarly, leaking chemical munitions that cannot be put into

serviceable condition, and that cannot be reasonably recycled or used

for other purposes would also be a solid waste. A leaking chemical

munition that has been overpacked is so unlikely to ever be used,

repaired, or recycled, that EPA views such a munition as a solid waste

unless DOD already has in place an established repair or recycling

plan. Munitions in these situations are defined in today's rule as

solid waste. A leaking chemical munition or agent container (e.g., a

one ton chemical container), however, may be repaired and the material

still considered to be a product, not a solid waste, unless DOD

determines it is a solid waste under Sec. 266.202(b)(4).

4. Section 266.202(b)(4)--Munitions Determined by an Authorized

Military Official To Be a Solid Waste

Finally, proposed Sec. 261.2(g)(1)(iv) is finalized in

Sec. 266.202(b)(4) to make it clear that an authorized military

official may identify an unused military munition as a RCRA ``solid

waste.'' In this case, the designated waste munition (if ``hazardous''

or if designated by the generator as hazardous under Sec. 262.11) would

be subject to the hazardous waste regulations unless it is a non-

chemical munition that meets the terms of the conditional exemptions in

Sec. 266.203 or Sec. 266.205. For example, in 1984, the Department of

the Army determined that M55 rockets are hazardous waste. DOD made this

decision because the rockets' delivery system no longer existed, and

because DOD decided, for operational reasons, that the rockets would

not be used in military operations, and that they would not be sold or

reclaimed. These rockets are now being regulated as hazardous waste

under RCRA interim status or permit requirements. This final action

does not affect the waste status of these materials previously declared

``solid waste,'' and provides for similar future classification of

military munitions as solid or hazardous waste.

EPA emphasizes that Sec. 266.202(b)(4) requires a specific

declaration by an authorized military official that a munition is a

solid or hazardous waste. EPA expects that the declaration would be in

writing. As explained earlier, a decision under DOD's classification

systems that a munition is ``unserviceable,'' or the transfer of a

[[Page 6628]]

munition into a ``demilitarization'' account would not, by itself,

constitute a decision that a munition is a solid waste.

Response to Comments

DOD commented that EPA should designate unused military munitions

as solid wastes when certified for treatment or disposal and received

at the treatment or disposal unit. This would avoid the need for

compliance with RCRA storage and transportation requirements, and

permit modifications for off-site wastes (discussed below in section

M). For the reasons stated in the preamble for the proposed rule, EPA

continues to believe unused military munitions slated for treatment or

disposal should be classified as solid waste when they leave storage.

Some commenters suggested that munitions identified as

``unserviceable'' or ``Condition Code H'' or placed in a

``demilitarization account'' should be included as solid waste,

because, in the commenter's view, the designations express an intent to

discard these munitions. Other commenters took the opposite view, that

such designations do not express an intent to discard. Some commenters

further stated that EPA should develop a scheme, including possibly a

schedule, that would force DOD to evaluate and make determinations in a

timely manner that materials in the various ``unserviceable,''

``Condition Code H,'' ``demilitarization,'' or ``resource recovery and

disposition'' accounts are or are not ``solid waste,'' arguing that

there are tremendous volumes of materials in these accounts that DOD

should be compelled to act upon to reduce the amount in storage and,

thereby, reduce storage risks.

For the reasons discussed above and in the preamble to the proposed

rule, EPA does not agree that such materials should be classified as

solid waste (except those that are leaking, damaged, or deteriorated as

addressed in Sec. 266.202(b)(3)) nor that EPA should develop a scheme

to force DOD to make such determinations, especially given the DOD

storage standards, practices and record.

G. When Military Munitions Are Not a Solid Waste

Military munitions, under today's final rule, are not a solid waste

for regulatory purposes: (1) when a munition is used for its intended

purpose, which includes when a munition is used for the training of

military personnel and of explosives and emergency response

specialists; when a munition is used for research, development,

testing, and evaluation; and when a munition is destroyed during

certain range clearance operations; and (2) when an unused munition,

including components thereof, is repaired, reused, recycled, reclaimed,

disassembled, reconfigured, or otherwise subjected to materials

recovery activities.

1. Intended Use

Under RCRA, the use of products for their intended purpose, even

when the use of the product results in deposit on the land, does not

necessarily constitute ``discard,'' is not waste management, and is not

subject to regulation. For example, RCRA does not regulate the use of

pesticides by farmers, even though pesticides are discharged to the

environment during use (see 40 CFR 262.10(d) and 262.70). By the same

logic, RCRA does not regulate the use of dynamite or other explosives

during quarrying or construction activities. Similarly, EPA has

consistently held that the use of munitions (military or otherwise) for

their intended purpose does not constitute ``discard,'' and therefore

is not a waste management activity. Section 266.202(a)(1)(i)-(iii), in

finalizing proposed Sec. 261.2 (g)(3)(i)-(iii), clarifies this point

and provides specific examples of military activities that are excluded

from RCRA regulation.

a. Section 266.202(a)(1)(i)--Military training exercises. Section

266.202(a)(1)(i) clarifies that munitions used in the training of

military personnel and explosive ordnance disposal (EOD) personnel are

not regulated under RCRA. As discussed in the proposal (60 FR 56475),

EPA views such training, which could include training military

personnel in the destruction of unused propellant and other munitions,

to constitute the normal use of a product, rather than waste disposal.

For example, to ensure that military personnel can safely and

efficiently destroy propellant during wartime, military training

exercises involving artillery and mortar rounds typically include

training in the safe burning of unused propellant. In EPA's view, the

training of military personnel in the wartime use of munitions is a

legitimate use that lies outside the scope of RCRA. Such training

exercises typically follow detailed protocols for training military

personnel in the handling and burning of unused propellants.

b. Section 266.202(a)(1)(ii)--Weapons testing. Today's final rule

also clarifies that munitions used in weapons research, development,

testing, and evaluation programs are not regulated under RCRA. Testing

munitions, or using munitions to test a weapon system, to determine

their performance capabilities, clearly falls within the definition of

use of a material/product for its intended purposes. EPA also considers

the removal of a used or fired munition from a testing or training

firing range for further testing and evaluation to be within the

definition of use of a material for its intended purpose.

c. Section 266.202(a)(1)(iii)--Range clearance operations. The

military Services often conduct range clearance exercises as a result

of weapons testing or training at firing ranges. During these

exercises, military Explosive Ordnance Disposal (EOD) specialists clear

ranges of debris and unexploded ordnance, which are generally destroyed

on-site but may also be shipped off-range for treatment or disposal.

The frequency of these range clearance activities differs according to

the nature of the area within the range. For example, range areas known

as maneuver zones, where tanks, other vehicles, and personnel are

present are generally cleared more frequently than range impact areas.

EPA considers range management to be a necessary part of the safe use

of munitions for their intended purpose; thus, the range clearance

activity is an intrinsic part of training or testing. EPA also

considers this provision to be consistent with Congress' intent that

EPA take DOD safety requirements into account in developing regulations

under RCRA section 3004(y). [H. R. Conf. Rep. No. 886, 102d Cong., 2d

Sess. 29 (1992)]. Furthermore, from an environmental perspective, it

makes no difference whether ordnance explodes on impact or is

subsequently detonated by an EOD specialist. Therefore, this final rule

excludes range clearance exercises (i.e., the recovery, collection, and

on-range treatment or destruction of unexploded ordnance) at active or

inactive ranges from RCRA Subtitle C regulation.

Under today's rule, any debris or unexploded ordnance (UXO) shipped

off-range for treatment or disposal is a solid waste, and if a

hazardous waste, it would potentially be subject to the RCRA Subtitle C

requirements. However, it would not be a solid waste if shipped off-

range for further evaluation, unless the evaluation is related to

treatment and disposal.

Finally, today's rule clarifies that on-range disposal (e.g., the

recovery, collection, and subsequent burial or placement in a landfill)

of UXO is a RCRA-regulated activity under Subtitle C.

[[Page 6629]]

2. Section 266.202(a)(2)--Disassembly Operations

Proposed Sec. 261.2(g)(5) is being finalized in Sec. 266.202(a)(2).

Unused military munitions that are being repaired, reused, recycled,

reclaimed, disassembled, reconfigured, or otherwise subjected to

materials recovery activities are not solid waste. Therefore these

activities are not subject to RCRA, ``unless such activities involve

use constituting disposal, as defined in Sec. 261.2(c)(1) or burning

for energy recovery as defined in Sec. 261.2(c)(2)'' [these exceptions

have been added to today's rule for consistency with the proposed

preamble at 60 FR 56472 and 56477 and existing section 261.2(c)]. Of

course, the subtitle C regulations do apply if the munition is already

classified as a waste and the disassembly is carried out to prepare for

waste disposal. Materials recovery operations constitute a large part

of DOD's Resource Recovery and Recycling Program, which EPA strongly

supports and encourages. As discussed in the proposal preamble (60 FR

56472), this section is analogous to Secs. 261.2 (c) and (e) and 261.33

for ``commercial chemical products.'' Thus, the position EPA is taking

in today's rule on military munitions recycling or materials recovery

operations is similar to the position the Agency has taken with regard

to the management of commercial chemical products. Examples of

munitions recycling activities performed by DOD that would not be

regulated under RCRA can be found in the proposed notice to this final

action.

In the proposed rule, the Agency requested comment on one

particular type of munitions recycling activity: the processing of an

unused propellant or explosive for use as fertilizer. In the preamble

to the proposed rule, the Agency noted that this form of recycling

involves application of propellant or explosives to the land in lieu of

its originally intended use. This use as a fertilizer is regulated as a

waste management activity unless it meets the terms of an exemption. In

reviewing this issue, the Agency has determined the recycling of

propellants or explosives into fertilizer may be a permissible activity

under RCRA.

Specifically, the Agency notes that in this scenario, the unused

propellant or explosive would become a solid waste because it is being

recycled by being used in a manner constituting disposal. See 40 CFR

261.2(c)(1). Use constituting disposal is defined as application or

placement on the land in a manner that constitutes disposal, or use in

production of products that are applied to or placed on the land or are

otherwise contained in products that are applied to or placed on the

land. In the specific case in point, the propellant or explosive is

recycled by being used to produce a product (i.e., fertilizer) that is

applied to the land.

Since explosives or propellants exhibit the hazardous waste

characteristic of reactivity (see 40 CFR 261.23), those that become

solid wastes when recycled would also be a reactive hazardous waste

(hazardous waste code D003). In some limited cases, a propellant might

also exhibit the characteristic of toxicity (see 40 CFR 261.24),

primarily due to the presence of metals such as lead. In either case,

since the propellant or explosive is a ``recyclable material,'' the

recycling would be subject to 40 CFR 261.6--Requirements for recyclable

materials. See 40 CFR 261.6(a)(1). Under 40 CFR 261.6(a)(2)(i),

recyclable materials used in a manner constituting disposal are subject

to the requirements of 40 CFR Part 266, subpart C--Recyclable Materials

Used in a Manner Constituting Disposal.

Under 40 CFR 266.20(b) commercial fertilizers that are produced for

the general public's use that contain recyclable materials are not

presently subject to regulation provided they meet the treatment

standard under 40 CFR Part 268, subpart D, for each recyclable material

that they contain. In the case of propellants or explosives that

exhibit the characteristic of reactivity (i.e., D003 wastes), the

treatment standard under 40 CFR 268.40(e), as set forth in the table,

``Treatment Standards for Hazardous Wastes,'' is deactivation (i.e.,

rendering the propellant no longer reactive as defined under 40 CFR

261.23), plus treatment of all underlying hazardous constituents (as

defined in 40 CFR 268.2(i)) to meet the universal treatment standards

(UTS), found in 40 CFR 268.48. In the case of a propellant or explosive

that also exhibits the toxicity characteristic (TC), in addition to

meeting the requirements for the D003 waste code, the waste would also

have to meet the appropriate treatment standard for the TC waste code

as set out in 40 CFR Part 268, subpart D.

Thus, the use of an unused explosive or propellant as an ingredient

to produce commercial fertilizer would be exempt from regulation under

RCRA, provided that the fertilizer: no longer exhibits the

characteristic of reactivity; has had all underlying hazardous

constituents treated to meet the UTS; and has met the treatment

standards for other applicable hazardous waste codes.

EPA notes that Sec. 266.202(a)(2) codifies EPA's interpretation of

how its current recycling requirements apply to disassembly and

recycling of unused military munitions. The same principles apply to

the recycling of commercial ammunition.

It is important to note, however, that once the materials recovery

activities are completed, any remaining residuals requiring disposal or

treatment prior to disposal are solid wastes which, if hazardous, would

be subject to the subtitle C regulations.

Response to Comments

The Agency received numerous comments regarding the proposed rule

provisions identifying when unused munitions are not a solid waste. The

major comments focused on the following topics: munitions used for

their intended purpose, in particular, munitions that remain on the

ground at firing ranges and munitions used for training in the

destruction of munitions; the scope of military personnel training

regarding minimization of the quantity of unused propellant resulting

from military training; potential health effects of open burning;

minimum open burning standards; the potential for ``sham'' training

exercises for purposes of disposal; regulation of residue/ash from open

burning/open detonation (OB/OD) activities; regulation of the

destruction and cleanup of munitions during range clearance activities;

disassembly of rockets, missiles, or torpedoes (which carry the

munitions as propellant or warhead) as it pertains to treatment;

applicability of scrap metal exemptions to munitions; and reuse of

explosives as fertilizers (discussed above).

Intended Use. With respect to the use of munitions ``for their

intended purpose,'' the Agency received comments that disagreed with

various aspects of the Agency's interpretation; in particular, that the

use of munitions at firing ranges and training in the destruction of

unused propellants are ``intended use'' activities. Commenters stated

that munitions that impact the ground have ceased to be used for their

intended purpose, and that their use cannot be compared to the use of

pesticides since these products continue their intended purpose after

they are applied to the ground.

Commenters also suggested that, because of the potential impact of

munitions on the environment, EPA should consider designating munitions

on the ground as solid waste. But even the proponents of this view felt

the full current RCRA regulatory scheme (i.e., normal RCRA permitting)

is

[[Page 6630]]

inappropriate for military ranges, suggesting that EPA could use a

streamlined permit-by-rule approach with limited provisions, especially

at active ranges. Commenters suggested the following limited standards

for ranges (at least for active ranges) so as not to interrupt range

activities related to the military mission: location standards (i.e.,

for wetlands, surface waters, and proximity to populations); off-range

monitoring (at least surface and ground waters), remedial responses to

off-range migration, and range closure plans.

Several commenters stated that field sampling had indicated

contamination on ranges. The bulk of the reports that EPA has reviewed,

including those cited by commenters, do not provide enough information

to conclude that ground or surface water contamination does or does not

result from fired munitions on ranges. This is partly because the

studies or reports do not adequately document, for example, increases

in contaminant concentrations over ambient concentrations (i.e.,

background); or that the source was, indeed, fired munitions; or

whether it might be some other source on or off range, such as spills

or landfills. There are two exceptions: lead and white phosphorous from

fired munitions on ranges have been adequately documented to conclude

that these materials may contaminate surface water and affect fish and

fowl. Although the lead contamination cases involved non-military

ranges, the potential for contamination at military ranges where lead

munitions are fired clearly exists. The white phosphorous case was a

military range.

In response to these comments, EPA continues to interpret the RCRA

Subtitle C regulations as not extending to products whose use involves

application to the land, or where use necessarily entails land

application, when those products are used in their normal manner. In

EPA's opinion, the use of munitions does not constitute a waste

management activity because the munitions are not ``discarded.''

Rather, the firing of munitions is within the normal and expected use

of the product. This is the same position EPA took regarding the

discharge of ammunition and expended cartridges in an interpretive

letter by Sylvia Lowrance, Director of EPA's Office of Solid Waste, to

Jane Magee, Assistant Commissioner for Solid and Hazardous Waste

Management, Indiana Department of Environmental Management, Sept. 6,

1988, addressing the issue of the ``applicability of * * * RCRA * * *

regulations to shooting ranges.'' This position was also repeated in

the proposed rule for Corrective Action for Solid Waste Management

Units at Hazardous Waste Management Facilities, 55 Fed. Reg. 30798,

30809 (1990). At the request of the United States Court of Appeals for

the Second Circuit, EPA filed a brief as Amicus Curiae in Connecticut

Coastal Fishermen's Assoc. v. Remington Arms Co., et al, (August 28,

1992) discussing the Agency's views on whether lead shot and clay

target debris deposited on land and in water in the normal course of

skeet and trap shooting is ``solid waste'' under RCRA. In that brief,

EPA repeated its position that regulatory jurisdiction does not apply

to products that are deposited onto the land in their ordinary manner

of use.

EPA sees no compelling reason to alter this longstanding

interpretation of its regulatory definition of the term ``solid

waste.'' Nothing in the language or legislative history of RCRA section

3004(y) suggests that Congress intended or desired that EPA adopt a

different interpretation of ``solid waste'' with respect to military

munitions.

Moreover, EPA disagrees with one commenter's proposition that

munitions are a ``solid waste'' when they hit the ground because they

have no further function, unlike pesticides, which continue to have a

function on the ground. EPA's interpretation focuses on whether a

product was used as it was intended to be used, not on whether the

purpose of the product is to perform some function once on the ground.

For example, the use of explosives (e.g., dynamite) for road clearing,

construction, or mining does not trigger RCRA regulation, even though

any residuals on the ground serve no further function.

Therefore, the Agency is maintaining its position that munitions

that are fired are products used for their intended purpose, even when

they hit the ground since hitting the ground is a normal expectation

for their use. However, today's rule specifies that fired military

munitions that land off-range become a statutory solid waste at a

certain point, potentially subject to RCRA remedial authorities. This

point is discussed further in section H which addresses military

munitions at ranges.

Training. The Agency received a number of comments regarding EPA's

view that military munitions used in the training of military personnel

are not a solid waste. A number of commenters raised concerns regarding

the training of military personnel in the burning of unused propellant

increments resulting from artillery and mortar training. Commenters

pointed out that the amount of unused propellant destroyed may equal or

exceed the propellant actually used in firing the weapons, and that

this is contrary to the Agency's and RCRA's waste minimization goals.

EPA agrees that the quantities of unused propellant that is burned may

equal or be more than that used in firing weapons since such

propellants are generally packaged in either five or seven bags per

canister, and often the size of a training ranges prohibits the use of

all the bags. EPA has concluded, however, that there is merit to DOD's

argument that to minimize the chances for confusion and error, military

training should duplicate to the maximum extent possible the conditions

encountered by military personnel in combat. Using the actual canisters

and bags (which are of different sizes) that would be used in time of

war, and training the personnel in the safe management and expedient

destruction of unused propellant is a legitimate part of training in

the use of munitions.

Commenters also raised concerns regarding the RCRA status of sites

used for training in the burning of unused propellant bags.

Specifically, the commenters cited elevated incidences of lung and

other cancers that they argued were possibly due, in part, to military

burning practices. The Agency has included in the docket for this rule

a number of studies and reports on the potential impacts from open

burning emissions. A number of commenters expressed concern that open

burning of unused propellant, as it pertains to military personnel

training, contaminates the environment. Concerns of the public

particularly focused on air emissions, although they also mentioned the

burning of propellant directly on the ground could lead to soil (and

possibly groundwater) contamination. On the other hand, studies and

reports provided to the Agency offer contradictory conclusions. These

reports are included in the Docket.

In any case, as a precaution, and in response to these concerns,

the Services often conduct the burning in lined trenches. Also, in some

cases, this precaution has been required by State regulators. In other

cases, local opposition to burning of unused propellant has led

individual installations to abandon the practice (and in at least one

case to abandon training altogether), or to reduce the number of

increments taken into the field. Commenters suggested that EPA require

such lined units and perhaps monitoring and closure plans for these

training units to ensure environmental

[[Page 6631]]

protection, perhaps through a permit-by-rule. Because EPA has

determined that these are product use activities, EPA does not believe

that RCRA should be used to restrict unit locations or compel unit

designs.

Some States and citizens groups argued that such burning could lead

to ``sham'' training, when the primary purpose is really waste

disposal. Commenters suggested that EPA establish criteria for training

in the destruction of unused propellant bags to assure against ``sham''

training exercises, including documentation of the training exercises

and a minimum three year record retention time for all such training

documentation. The Agency has retained the proposed approach regarding

the training of military personnel in the safe burning of unused

propellants because, as mentioned above, EPA has determined that (given

the unique military activities and the need for training) this is an

aspect of product usage and, therefore, should not be regulated under

RCRA. On the other hand, the Agency reaffirms here what was said in the

preamble of the proposed rule and earlier in today's rule, that, to

assure against sham training, regulators may look for the existence and

use of training manuals, the presence of military trainees, and

documentation of training activities as evidence of legitimate

training. Records showing evidence of training could include, for

example, the number of personnel trained, the date and time of

training, military personnel attendance lists, and the amount of

propellant used in training. EPA believes that, should activities in a

specific training exercise be suspect, such procedures and

documentation would provide evidence that the activity is for training

purposes rather than waste disposal.

One commenter requested that the Agency provide a definition of

``troop'' to include DOE security personnel, and DOE and DOD

contractors. The Agency has decided not to add a definition of

``troop,'' but to clarify that the terms ``troop'' and ``personnel'' as

used in today's rule refer not only to DOD personnel, but also to DOE,

Coast Guard, National Guard, and contractor personnel who are being

trained in the use of munitions or explosives. In response, the Agency

has deleted reference to ``troops'' in preference to the term

``military personnel,'' and has added a definition for ``military'' to

the Sec. 266.201 definitions.

Other comments received regarding unused propellant bag training

expressed concern over the lack of a regulatory regime over the ash or

residue left behind after the training, and that this ash could present

an environmental hazard. These commenters asserted that this ash would

not be listed as hazardous waste, but might exhibit a characteristic or

contain hazardous constituents, although no data were submitted. As

mentioned previously, the military often conducts these propellant

burning exercises within a structure that would contain residual ash,

which is then disposed of according to RCRA requirements, if hazardous.

The Agency emphasizes that RCRA 7003 authority could be applied to this

ash when the OB/OD training site or area is closed or at any time that

it might present an imminent and substantial endangerment.

A commenter suggested that these OB/OD training areas be regulated

under the same guidelines as fire fighting training pits that require

permits to operate. The Agency wants to make clear that the use of fuel

in fire training does not require a RCRA permit, unless the fire

training were to use waste fuel. Then the burning would be considered

RCRA disposal rather than the use of a product for its intended

purpose. The training of military personnel in the use of military

munitions, such as training in the proper techniques to burn

propellant, uses standard, unused propellant. The Agency believes it is

a reasonable interpretation in the context of military training to view

training in how to burn unused propellant safely as not training in

waste disposal, but rather as part of necessary training in product

usage.

Range Clearance. With respect to on-range clearance exercises, the

Agency received a broad range of comments. Some commenters requested a

clarification of certain range management activities. In response, the

Agency has reviewed a host of activities. In particular, the collection

of fired bullets, including those that contain lead, at indoor firing

ranges, is considered by EPA to be range maintenance and not hazardous

waste management activities within the scope of today's rule. EPA

cautions, however, that although on-range collection may not be a waste

management activity, the removal of such materials from the range may

result in the generation of a solid waste, and the off-range storage

and subsequent treatment or disposal of such waste may be subject to

RCRA regulation. EPA notes, however, that lead may be recycled under

the scrap metal exemption of 40 CFR 261.6(a)(3)(ii).

Commenters asked if range clearance activities at transferring,

closed, or transferred ranges were also considered within the scope of

proposed Sec. 261.2(g)(3)(iii) since only active, inactive, and closing

ranges were listed. EPA did not generally intend to include these range

clearance activities within the scope of this proposed section. Under

the proposal, such range clearance activities would not be considered

within the scope of ``intended use.'' EPA has modified the proposal

slightly in the final rule, at the request of one State, by dropping

the term ``closing.'' EPA made this change because, in its view, ranges

fall into one of three categories: active, inactive, and closed. A

closing range is merely an ``inactive'' range in the process of

becoming a ``closed'' range. Similarly, the rule does not include

references to ``transferring'' or ``transferred'' range since these are

all either ``active,'' ``inactive,'' or ``closed.'' To help clarify

this provision, EPA has defined, in Sec. 266.201, the terms ``military

range,'' ``active range,'' and ``inactive range.'

A commenter raised the concern that the inclusion of the word

``contaminants'' with UXO in the context of ``intended use'' in range

clearance operations in the proposed rule could lead to a broadening of

scope to cover many remediation activities not directly associated with

unexploded ordnance and munitions debris. The commenter requested that

the Agency clarify whether range clearance activities may encompass a

variety of range remediation activities related to munitions

contamination and media cleanup (not limited to UXO and debris). It was

not, and is not, the Agency's intention to broaden the interpretation

of the term ``intended use'' as it applies to range clearance or

management activities by the inclusion of the term ``contaminants'' in

the regulatory language. In fact, the proposed preamble clarified the

original intent by using the terms ``UXO'' and ``debris'' when

discussing the range clearance activity. However, in today's rule, the

Agency has used the term ``munitions fragments'' instead of either

``contaminants'' or ``debris'' to more closely reflect the Agency's

intent to limit this provision to the recovery of munitions fragments

(in addition to the recovery and treatment of UXO). This provision does

not apply to the remediation of other contaminants (besides munitions

fragments or debris), including non-munitions related contaminants, or

media (e.g., soil, surface water, or ground water). Also, the rule

clarifies that this range clearance provision does not apply to the

management of UXO or munitions that were buried on a range when the

[[Page 6632]]

burial was not a result of product use, nor to the burial (i.e.,

landfill) of recovered UXO or debris/fragments on a range.

Disassembly. A few commenters requested the Agency clarify the

distinction between the terms ``destruction'' and ``disassembly,''

especially in the context of RCRA permitting and ``rendering a munition

safe.'' The term destruction in the military munitions context

generally means thermal treatment processes such as incineration, open

burning, and open detonation, but could also include chemical treatment

processes. Such destructive processes usually require a RCRA permit,

unless exempted under the emergency response, range clearance, or

intended use provisions in today's rule. The term ``disassembly,'' in

the context of military munitions, generally refers to a mechanical or

physical process associated with dismantling unused munitions (i.e.,

products). The Agency generally does not consider disassembly to be a

waste treatment process requiring a RCRA permit, especially when the

disassembly is used in materials recovery activities, which is often

the case. EPA views both ``destruction'' and ``disassembly'' as ways to

``render a munition safe,'' making both eligible for exemption from

RCRA permitting in the emergency response context.

A commenter questioned whether the Department of Energy disassembly

procedures are covered by Sec. 266.202(b)(5). Since this section

applies to military munitions, it also applies to DOE when DOE manages

military munitions.

H. Military Munitions on Closed and Transferred Ranges

EPA has decided to postpone final action on proposed 40 CFR

261.2(g)(4)(i). This proposed provision would have identified a

military munition left on a closed range or a range transferred from

military control as meeting the statutory definition of solid waste in

RCRA section 1004(27), potentially subject to RCRA corrective action or

section 7003 authorities, until DOD regulations were promulgated

governing the cleanup of munitions on closed or transferred ranges.

EPA's decision to postpone action on this section of the proposal

is based in part on comments the Agency received on this issue and in

part on the fact that DOD has not yet issued the range cleanup rule

currently under development (the ``DOD Range Rule''). Many commenters

questioned EPA's legal authority to defer RCRA coverage in favor of DOD

regulations governing the cleanup of closed and transferred ranges. EPA

will conduct further analyses of the comments and of the final DOD

regulation governing the cleanup of munitions on closed and transferred

ranges (including an assessment of whether the DOD Range Rule is

adequately protective); based on these analyses, the Agency will reach

a final decision on this issue. If either DOD fails to proceed with the

range rule or EPA finds that the range rule does not adequately protect

human health and the environment, EPA will be prepared to address this

issue under Federal environmental laws.

EPA believes that this interpretative provision identifying when a

discharged munition on a range becomes a solid waste under RCRA section

1004(27) is not a required part of the rulemaking mandated in RCRA

section 3004(y) and, therefore, is not subject to that section's

statutory deadlines. EPA interprets RCRA 3004(y) as only requiring the

Agency to identify the circumstances under which military munitions

become subject to the regulatory scheme for identified or listed

hazardous waste promulgated under Subtitle C. The language of RCRA

section 3004(y) fully supports EPA's interpretation. Section 3004(y)

specifically requires EPA to identify ``when military munitions become

hazardous waste for purposes of this Subtitle.'' Proposed

Sec. 261.2(g)(4)(i) would have identified when a discharged munition

becomes a statutory solid waste, but would not identify when that

discharged munition becomes subject to Subtitle C regulation.

Response to Comments

EPA received numerous comments on the proposed regulations for

closed and transferred ranges. Since this part of the rule is not being

finalized in today's rule, these comments will be addressed at the time

EPA takes final action.

I. When Used or Fired Military Munitions Become Solid Waste, Including

Military Munitions That Land Off-Range

Proposed Sec. 261.2(g)(2) has been revised and finalized in

Sec. 266.202(c). This section clarifies that used or fired munitions

are solid wastes when they are removed from their landing spot and then

either (1) managed off-range--i.e., when transported off-range and

stored, reclaimed, treated, or disposed of, or (2) disposed of (i.e.,

buried or landfilled) on-range. In both cases, once the used or fired

munition is a solid waste, it is potentially subject to regulation as a

hazardous waste. For example, former defense installations no longer

under military control (i.e., Formerly Used Defense Sites or FUDS)

sometimes contain unexploded ordnance or munitions fragments. Used or

fired munitions removed from their landing spot and transported off-

range would have to be handled under RCRA Subtitle C (if they are

``hazardous''), except in emergency situations. Similarly, used or

fired munitions resulting from military research or training exercises

at locations other than ranges (e.g., in testing laboratories) would be

considered solid waste when removed from the site of use and sent to

treatment or disposal. Section 266.202(c) does not finalize one aspect

contained in proposed Sec. 261.2(g)(2): that used or fired munitions

that are recovered and then treated on range at a closed or transferred

range (unless the transferred range is still in active use as a range)

would be a solid waste potentially subject to RCRA subtitle C

regulations. This aspect of the rule is being postponed along with the

closed and transferred range aspect discussed in section H of this

preamble, because these aspects are so inter-related and they are both

being addressed under DOD's range rule.

Today's rule finalizes proposed Sec. 261.2(g)(4)(ii) in

Sec. 266.202(d), which provides that munitions that land off range that

are not promptly rendered safe (if necessary) and/or retrieved, are

statutory solid wastes under RCRA section 1004(27), potentially subject

to RCRA corrective action or section 7003 authorities. Today's final

action is based on the view that a failure to render safe and retrieve

a munition that lands off range would be evidence of an intent to

discard the munition, just as the failure to respond to a spill of a

hazardous material could be evidence of an intent to discard.

``Rendering safe'' might include disarming action to prevent an

explosion as well as destruction of the ordnance. If remedial action

were infeasible--for example, the off-range munition wastes could not

be removed because the munition was deeply buried, located in

inaccessible terrain or could not be located--the operator of the range

would be required to maintain a record of the event, including the type

of munition that was fired off range and its location (if known), for

as long as any threat remains.

Response to Comments

Munitions Landing Off-Range. Several commenters expressed concern

over the relative merits of not addressing munitions on an active range

while addressing munitions that land off a range. The Agency views

these as distinctly different situations. As discussed previously, the

Agency views

[[Page 6633]]

the firing of munitions that land on active ranges as product use. On

the other hand, munitions that land off range that are not promptly

rendered safe and/or retrieved, are more like a spill that is not

promptly remediated. EPA would consider these munitions to be discarded

or abandoned, or disposed of (i.e., statutory solid waste potentially

subject to RCRA corrective action or section 7003 authorities, and if

removed for subsequent management, potentially subject to the Subtitle

C regulatory requirements). A munition on an active range is where it

is intended and expected to be, and it is in a controlled environment.

As such, it is more effectively controlled or managed than a munition

that has landed off-range where it normally wouldn't be expected to be.

J. Waste Materials Derived From Munitions Manufacture

As stated in the proposed preamble, EPA does not believe that

military munitions manufacture raises any new special regulatory issues

that need to be addressed by this final rule. One issue was raised in

the public comments pertaining to recycling of secondary materials, but

this issue is not unique to the military. As a result, the Agency has

decided that any rule changes to facilitate recycling of secondary

materials will be considered in the context of a broader, separate

rulemaking. Therefore, this final rule makes no changes to the existing

rules regarding waste materials derived from munitions manufacture.

K. Chemical Munitions

In the proposal, EPA solicited comment on whether munitions

scheduled for destruction by international treaty or Congressional

action should be classified as solid waste. The Agency continues to

believe, for reasons discussed in the proposal (60 CFR 56485), that

these actions should not, as a general matter, be interpreted as a

decision to discard a munition. Among other considerations, the

proposed disarmament conventions and Congressional directives do not

declare these items to be waste, nor do they totally prohibit their use

or require their total destruction.

Response to Comments

Regarding chemical agents and munitions, some commenters supported

the proposal stating that any action that would delay the destruction

of chemical agents and munitions is contrary to the protection of human

health and the environment, and that in their view the proposal would

not cause such a delay. These commenters stated they would oppose

alternatives that would cause delays. Other commenters, however,

suggested that EPA should complete a thorough review of alternative

treatment/destruction technologies before allowing DOD to proceed with

the current incineration approach. EPA notes that Congress has

addressed the issue of developing alternative treatment or destruction

technologies through legislation. For a more detailed discussion of

this issue, see section M.2.b below. A few commenters supported the

proposed position that chemical agents and munitions do not become

solid waste solely by being slated for destruction by an Act of

Congress or treaty. Some commenters took the opposite view.

In developing today's rule, EPA continues to believe the position

discussed in the proposed rule. Disarmament conventions and

Congressional directives to demilitarize a weapons system should not be

interpreted as a decision to discard a munition. In many cases, the

provisions in the treaties or conventions do not equate to a decision

to discard a specific munition in that they allow, for example, for

implementation schedules, retaliatory use, and very specific

verification procedures that do not equate to the process established

under RCRA.

In the context of chemical agents and munitions, some commenters

objected to any alternative that would prohibit States from being more

stringent. As discussed elsewhere in this preamble, EPA agrees and has

not adopted this State pre-emption approach.

A few commenters identified the need for listing chemical agents as

hazardous waste, stating that these are some of the most lethal

materials in existence, yet they are not listed nor (in the commenter's

view) are they characteristic hazardous wastes under EPA's RCRA

regulations. One commenter stated that the Army has taken the position

that the explosives (e.g., the explosive component of the M55 rockets)

are a hazardous waste, but the agent itself is not. This becomes a

potential regulatory problem (1) when in the demilitarization process

the agent is separated from the explosives, or (2) for any bulk agents.

In response, EPA notes that five of the eight chemical stockpile

States have listed the various chemical agents as hazardous, and a

sixth has done so through a consent order with DOD regarding the

stockpile facility in that State. Moreover, based on EPA's technical

review associated with this rule, the Agency believes that the chemical

agents and munitions in the military stockpile subject to the

requirement for destruction contained in 50 U.S.C. 1521 exhibit at

least one of the characteristics identified in 40 CFR Part 261, subpart

C. In addition, DOD has publicly committed to the destruction of these

chemical munitions and their agents at RCRA permitted facilities, and

is seeking RCRA permits for all their chemical demilitarization

facilities. Based on these facts, it is not the Agency's current intent

to list, as hazardous waste, these chemical agents when they become a

solid waste.

A few commenters felt that emergency responses involving chemical

munitions, especially those involving non-stockpiled chemical

munitions, should not be exempted from the RCRA emergency permit

requirements. The Agency agrees that chemical munitions should receive

close oversight. EPA has evaluated DOD's statutory requirements and

standard operating procedures (SOPs) and has determined that the

emergency response procedures spelled out in today's final rule, in

conjunction with the DOD statutory requirements and SOPs, are

sufficiently protective for chemical munitions responses. For example,

the transport and destruction of a lethal chemical agent are regulated

by 50 U.S.C. 1512 and 1512a, requiring special approvals by the

Secretary of Defense and the Secretary of Health and Human Services

prior to either transport or destruction. Further, Congress and

affected State governors must be notified prior to any such destruction

or transportation. Thus, the standards for emergency responses in

today's rule--including the exemption for immediate responses and the

requirements for emergency permits--would apply in the same way to

conventional and chemical munitions. (See discussion in section P,

emergency responses.)

Regarding comments received on the storage of chemical munitions,

see the Response to Comments portion of section M of this preamble.

L. Generator and Transporter Standards

This final action makes two changes to the RCRA generator and

transportation requirements as they pertain to emergency responses to

munitions or explosives emergencies and to waste military munitions.

First, Secs. 262.10(i) and 263.10(e) clarify that persons

responding to emergencies (immediate threats from explosives and

munitions) are not subject to RCRA generator and transportation

requirements. This provision codifies a long standing EPA policy that

applies to all explosives and munitions emergency responses

[[Page 6634]]

(military and non-military) as well as to all conventional and chemical

military munitions emergency responses. This is discussed further in

section P entitled ``Emergency Responses.''

Second, proposed Secs. 262.10(i) and 263.10(d) are being finalized

in Sec. 266.203 to conditionally exempt from RCRA hazardous waste

generator and transporter requirements (including RCRA manifest

requirements and the container marking requirements of Sec. 262.32(b))

waste non-chemical military munitions that are shipped from a military-

owned or -operated facility to a military-owned or operated TSDF in

accordance with the DOD shipping controls for military munitions (i.e.,

tracking procedures). This provision applies to waste munitions that

are not chemical munitions or chemical agents and that are transported

by commercial carriers who are under contract with the military and

have signed a contractual compliance agreement with the Military

Traffic Management Command, and who operate under the DOD system of

shipping controls for military munitions. EPA is not extending the

conditional exemption in Sec. 266.203 to persons transporting

``military munitions'' who are not required to comply with the DOD

military munitions shipping controls (e.g., DOE or other non-DOD

Federal agencies or their contractors). This provision also does not

apply to the transport of waste military munitions to a commercial

treatment, storage, or disposal facility. Finally, this provision would

not apply to waste munitions shipped by the military but not under

DOD's shipping controls designed for its munitions inventory.

This aspect of the conditional exemption does not apply to

treatment, storage or disposal regulation, and is available only so

long as all conditions in Sec. 266.203(a)(1) are met. EPA's decision to

adopt the conditional exemption approach for identifying when waste

military munitions that are transported become subject to RCRA's

transportation requirements for hazardous waste is based on EPA's

conclusion that it is not necessary to regulate a waste as hazardous

where the wastes are already adequately regulated, and reasonable

mismanagement scenarios have thereby been controlled.

The conditional exemption approach and the legal basis supporting

it is explained in greater detail below in section M.1, entitled

Conditional Exemption For Waste Military Munitions In Storage.

In deciding to finalize the conditional exemption approach for the

transportation of waste military munitions, EPA primarily considered

the existing DOD shipping controls as well as DOD's munitions

transportation safety record. The DOD shipping standards and controls

provide a ``closed-loop'' system similar to the RCRA manifest. These

controls include the following forms: Government Bill of Lading (GBL)

(GSA Standard Form 1109); requisition tracking form DD Form 1348; the

Signature and Talley Record (DD Form 1907); Special Instructions for

Motor Vehicle Drivers (DD Form 836); and the Motor Vehicle Inspection

Report (DD Form 626). The DOD Standards, giving instructions on the use

of these forms are DOD Regulation 4500.9-R--Defense Transportation

Regulation, Part II, Cargo Movement and DOD Directive 6055.13--

Transportation Accident Prevention and Emergency Response Involving

Conventional DOD Munitions and Explosives. ``A Report to Congress On

the Adequacy of Department of Defense Safety Standards for

Transportation of Hazardous Materials'' (1989) provides a summary of

these controls. These documents are available in the public docket for

today's rule.

Features of the DOD transportation system include pre-trip routing

plans, safe havens and secure holding areas for vehicles experiencing

difficulties or for overnight storage, safe haven hotline, satellite

motor surveillance and tracking, shipper seals, dual driver protective

and escort services, firefighting instructions, and electronic

notifications/communications between shipper, carrier, and receiver.

DOD munitions shipments also comply with the DOT hazardous

materials transportation standards, which address packaging, labeling,

marking, placarding, emergency response, training, and shipping

documentation [49 CFR 100-179, 350-399]. DOD has made the DOT standards

mandatory for the transportation of military munitions (e.g., DOD

4500.9-R Defense Transportation Regulation Part II, Cargo Movement,

April 1996). EPA has reviewed these DOD documents and concludes that

the resulting procedures, in conjunction with the applicable DOT

standards, provide an equivalent level of protection of human health

and the environment as the requirements of the RCRA manifest system.

As a result of these and other controls, DOD's munitions

transportation safety record is good. DOD makes approximately 45,000

shipments of military munitions and explosives annually, including

shipments for demilitarization (of these shipments, only a very small

percentage would involve waste munitions, as defined in today's rule).

According to the U.S. Army Technical Center for Explosives Safety's

Explosives Safety Information Database and the DDESB's Historical

Accident Database, in the past 20 years, there have been 18 mishaps

involving commercial carriers of military munitions in the continental

U.S. Of these, only six accidents resulted in fires or detonations that

affected all or part of the munitions cargo itself. In each case, the

accident was attributed to a vehicular malfunction or accident, and not

to the munitions cargo.

The DOD shipping controls that make up the Sec. 266.203 conditions

are those adopted by DOD as of November 8, 1995. EPA understands that

DOD may change its shipping controls from time to time based on new

information. However, in light of the fact that DOD has a statutory

obligation to ensure proper transportation of munitions, and to prevent

hazardous conditions from arising that would endanger life and property

(see 10 U.S.C. Sec. 172), EPA does not believe that DOD would pursue

any amendments that would lessen protection of human health and the

environment. In fact, DOD continues to develop stricter shipping

controls to assure their weapons and components thereof do not come

under the control of unauthorized individuals. For example, DOD is

developing a new satellite tracking system due to be fully operational,

worldwide, in the next several years. Moreover, DOD also has long had

experience regulating explosive safety hazards, which directly affect

DOD's own personnel. Further, today's rule provides that DOD will

publish notice of any amendments to the DOD shipping controls in the

Federal Register. DOD will also provide EPA with DOD's determination of

whether the amended shipping controls are less protective than the

current standards. If EPA in its discretion determines that revisions

to the conditional exemption in today's rule are necessary to protect

human health and the environment, the Agency will propose such

revisions. Citizens may also petition for rulemaking under RCRA section

7004, 42 U.S.C. section 6974, using the procedures set forth in 40 CFR

Part 260, subpart C, to request EPA to revise the RCRA conditional

exemption in light of any amendments to the DOD shipping controls.

Under today's final rule, DOD amendments to its shipping controls rules

become effective for purposes of the conditional exemption only when

DOD publishes a notice in the Federal Register that its shipping

controls have been amended.

[[Page 6635]]

In summary, given the protective nature of the DOD shipping

controls, and the Services' record in providing for the safe

transportation of military munitions, the Agency concludes that RCRA

hazardous waste regulation is unnecessary when waste military munitions

are transported in compliance with DOD shipping controls. The

regulatory oversight created by today's rule provides further assurance

that the DOD shipping controls are followed and protectiveness is

maintained.

In enacting RCRA section 3004(y), Congress instructed EPA to

identify when military munitions become hazardous waste subject to

Subtitle C regulation. Congress also instructed EPA, after consultation

with the Department of Defense and the States, to develop storage and

transportation requirements for such waste military munitions that are

both protective of human health and the environment and ensure that

they are safely managed. Following EPA's consultation with DOD and the

States, EPA concludes that the most reasonable manner of accomplishing

Congress' goal is to allow DOD to continue to transport waste military

munitions under DOD shipping controls, which--when followed--provide

adequate protection, rather than impose a second regulatory scheme that

adds little in the way of protectiveness. Thus, RCRA section 3004(y)

further supports the approach taken in this rulemaking.

EPA also concludes that specifically identifying the conditions

under which waste military munitions become subject to RCRA Subtitle C

and providing for independent regulatory oversight of those conditions

adds significantly to the reliability and protectiveness of the system

of DOD shipping controls.

EPA emphasizes, however, that if a transporter of waste military

munitions claims the exemption, but fails to transport waste military

munitions in compliance with the provisions of the conditional

exemption, the non-compliant waste would no longer be exempt, so the

transporter would be subject to additional regulatory requirements and

could be subject to enforcement action (or citizen suit) for violations

of hazardous waste requirements. For example, where waste military

munitions lose their conditional exemption due to a violation of a

condition, the transporter of the waste could face penalties for

transportation of hazardous waste without a manifest. As a mechanism to

assist in the determination of whether the transportation of waste

military munitions is compliant with the terms of the exemption, the

Agency is imposing (in Sec. 266.203(a)(iv)) a self-reporting

requirement. Under this self-reporting requirement, the transporter

must provide oral notice to EPA within 24 hours, when becoming aware

of: (a) any theft or loss of the waste military munitions, or (b) any

failure to meet a condition of Sec. 266.203(a)(1) that may endanger

human health or the environment. The transporter must also provide a

written report describing the conditions of the violation or theft

within 5 days of learning of it. In addition, if any waste military

munitions shipped under subsection (a)(1) are not received by the

receiving facility within 45 days of the day the waste was shipped, the

owner or operator of the receiving facility must report this non-

receipt to the EPA within 5 days.

Under Sec. 266.203(c), where the conditional exemption has been

lost, the transporter may apply to EPA to reestablish the conditional

exemption. Once the waste returns to compliance with all conditions of

the exemption, an application for reinstatement of the conditional

exemption with respect to such waste may be filed with EPA. If EPA

finds that reinstating the conditional exemption for that waste is

appropriate, based on factors like those described in Sec. 266.203(c),

EPA may reinstate the exemption. Reinstatement is not automatic, but if

EPA does not respond to an application within 60 days, the conditional

exemption would be deemed reinstated. However EPA may terminate the

reinstatement at any time--even after the 60 period--if it finds that

the reinstatement is inappropriate based on factors like those

described in Sec. 266.203(c).

EPA emphasizes, however, that the generator of waste military

munitions or explosives must still make the determinations identified

in 40 CFR 262.11 in order to comply with the provisions of

Secs. 266.203 and 266.205 (discussed below), notably in order to know

which materials are subject to exception reporting and notification

requirements.

Response to Comments

The Agency received numerous comments on the proposed exemptions

from transporter standards for shipments between military facilities

under the DOD materials transportation standards. Some commenters

objected to the Agency's reliance on the current DOD standards for the

transport of unused military munitions as environmentally protective.

The Agency is convinced that exempting DOD from the manifesting

requirements is protective based primarily on the existing and

comprehensive internal controls that exist and are used within the

Services to track shipments of waste munitions. In addition, DOD's

safety record provides evidence of the effectiveness of the DOD

shipping requirements and DOD's commitment to safe transportation and

management. Thus, the Agency feels confident that reliance on these DOD

safeguards and practices is protective. Given this, the Agency feels

the additional burden of RCRA manifesting is duplicative and

unnecessary. Some commenters expressed concern that the usual RCRA

protections implied in the ``cradle to grave'' tracking of hazardous

waste would not be applicable under this approach since manifests

(which provide this link from cradle to grave) are not required. Again,

EPA is confident that the DOD tracking and security system is at least

as effective as the RCRA manifest in assuring that waste munitions are

tracked from ``cradle to grave.''

Some commenters requested clarification as to the applicability of

these exemptions to DOE, Coast Guard, and to commercial transportation

of military munitions. As discussed above, the Agency has decided to

provide the manifest exemption, as proposed, to DOD, DOE, the Coast

Guard, the National Guard, commercial transporters and other parties

under contract to or acting as an agent for DOD, who are obligated to

operate under the DOD shipping requirements. The Agency has not

provided a similar exemption to commercial or other Federal

transporters who are not subject to the DOD transportation standards,

even if they voluntarily follow the DOD standards.

M. Storage Standards

1. Conditional Exemption for Waste Military Munitions in Storage

a. Conditional Exemption for Waste Non-chemical Munitions. In

addition to promulgating RCRA storage standards for munitions that

become regulated hazardous waste, EPA is also finalizing a

``conditional exemption'' approach to identify when waste non-chemical

military munitions become subject to RCRA subtitle C storage

regulation. Through today's rulemaking, EPA is endeavoring to ensure

the safe storage of waste munitions while at the same time, not

unnecessarily duplicating or impeding existing regulation and handling

of such wastes. While the Agency believes that the subpart EE controls,

discussed below, are necessary

[[Page 6636]]

for the storage of waste munitions that are not already regulated and

for waste military munitions that are not managed in compliance with

existing controls, EPA does not believe that subpart EE regulations are

needed where waste military munitions are being properly handled in

compliance with the extensive DDESB standards (and other conditions set

out in today's rule).

Accordingly, today's rule provides that waste non-chemical military

munitions that exhibit a hazardous characteristic or are listed as a

hazardous waste are subject to hazardous waste storage regulation at

the point they become solid waste under 266.202, except when they meet

all of the conditions set forth in 40 C.F.R. 266.205(a)(1).

The conditional exemption in Sec. 266.205 applies only to waste

military non-chemical munitions that are subject to the jurisdiction of

DDESB (which could include military-owned munitions at contractor-

operated facilities), including products that DoD determines are solid

wastes under today's Sec. 266.202(b)(4) and unexploded ordnance

recovered from ranges and moved into storage prior to treatment or

disposal. EPA is not extending the conditional exemption option in

today's rule to owners or operators of storage facilities storing non-

military waste munitions and explosives, nor to persons storing

``military munitions'' who are not subject to the jurisdiction of the

DDESB (e.g., DOE or other non-DOD Federal agencies or contractor

facilities not directly or by contract subject to DDESB controls). EPA

has provided an exemption for ``military'' waste munitions based

largely upon the fact that DDESB standards apply to and are binding on

the military, and there is an institutional oversight process within

the military. A similar structure of management controls is not present

for non-military munitions.

The conditional exemption from RCRA storage requirements does not

apply to transportation, treatment, and disposal regulation, and is

available only so long as all conditions in Sec. 266.205(a)(1) are met.

1. Legal Basis for Conditional Exemption Approach. EPA's approach

is based on its view that RCRA Sec. 3001(a) provides the Agency with

flexibility, in deciding whether to list or identify a waste as

hazardous, to consider the need for regulation. Specifically, RCRA

Sec. 3001 requires that EPA, in determining whether to list a waste as

hazardous waste, or to otherwise identify a waste as hazardous waste,

decide whether a waste ``should be subject to the requirements of

Subtitle C.'' Hence, RCRA Sec. 3001 authorizes EPA to determine when

Subtitle C regulation is appropriate. The statute directs EPA to

regulate hazardous waste generators (section 3002(a)), hazardous waste

transporters (section 3003(a)), and hazardous waste treatment, storage

and disposal facilities (section 3004(a)) ``as necessary to protect

human health and the environment.'' By extension, the decision of when

a waste should be subject to the regulatory requirements of Subtitle C

is essentially a question of whether regulatory controls promulgated

under sections 3002-3004 are necessary to protect human health and the

environment.

EPA has consistently interpreted section 3001 to give it broad

flexibility in fashioning criteria for hazardous wastes to enter or

exit the Subtitle C regulatory system. EPA's longstanding regulatory

criteria for determining whether wastes pose hazards that require

regulatory control incorporate the idea that a waste that is otherwise

hazardous may not present a hazard if already subject to adequate

regulation. (See, e.g., 40 CFR 261.11(a)(3)(x), which requires EPA to

consider action taken by other governmental agencies or regulatory

programs based on the health or environmental hazard posed by the

waste.) Thus, where a waste might pose a hazard only under limited

management scenarios, and other regulatory programs already address

such scenarios, EPA is not required to classify a waste as hazardous

waste subject to regulation under Subtitle C.

At least two decisions by the U.S. Court of Appeals for the D.C.

Circuit provide support for this approach to regulating wastes as

hazardous waste only where necessary to protect human health and the

environment. In Edison Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir.

1993), the court upheld a temporary exemption from Subtitle C for

petroleum-contaminated media based on the fact that the potential

hazards of such materials are already controlled under the underground

storage tank regulations under RCRA Subtitle I. In reaching its

decision, the court considered the fact that the Subtitle I standards

could prevent threats to human health and the environment to be an

important factor supporting the exemption. Id. at 466. Similarly, in

NRDC v. EPA, 25 F.3d 1063 (D.C. Cir. 1994), the court upheld EPA's

finding that alternative management standards for used oil promulgated

under RCRA section 3014 reduced the risks of mismanagement and

eliminated the need to list as a hazardous waste used oil destined for

recycling.

This approach is fully consistent with RCRA section 3004(y), which

directs EPA to identify when military munitions become hazardous waste

subject to Subtitle C regulation. The section specifically calls upon

EPA--in consultation with the Department of Defense and the States--to

develop storage and transportation requirements for waste military

munitions that are both protective of human health and the environment

and ensure that they are safely managed. Following EPA's consultation

with DOD and the States, EPA concludes today that the most reasonable

manner of accomplishing Congress'' goal is to allow DOD to continue to

store waste military munitions under DDESB standards, which--when

followed--provide adequate protection, rather than impose a second

regulatory scheme.

Thus, RCRA section 3004(y) further supports the approach taken in

this rulemaking.

EPA's belief that RCRA section 3001(a) provides the Agency with the

flexibility to consider good management practice in determining the

need to regulate waste as hazardous, is also informed by the statutory

definition of hazardous waste (section 1004(5)(B), see also 40 CFR

261.10(a)). EPA has interpreted the statutory definition as

incorporating the idea that a waste that is otherwise hazardous does

not require regulation (if properly managed). For example, EPA's

regulatory standards for listing hazardous wastes allow consideration

of a waste's potential for mismanagement (see 40 CFR 261.11(a)(3),

which incorporates the language of RCRA section 1004(5)(B), and 40 CFR

261.11(c)(3)(vii), which requires EPA to consider plausible types of

mismanagement).

The legislative history of RCRA Subtitle C supports this

interpretation, stating that ``the basic thrust of this hazardous waste

title is to identify what wastes are hazardous in what quantities,

qualities, and concentrations, and the methods of disposal which may

make such wastes hazardous.'' H. Rep. No. 94-1491, 94th Cong., 2d

Sess.6 (1976), reprinted in A Legislative History of the Solid Waste

Disposal Act, as Amended, Congressional Research Service, Vol.1, 567

(1991)(emphasis added). This approach also finds support in the D.C.

Circuit's decision in Edison Electric Institute v. EPA, 2 F.3d 438

(D.C. Cir. 1993). In that case, the court remanded EPA's RCRA Toxicity

Characteristic (``TC'') as applied to certain mineral processing wastes

because the TC was based on modeling the mismanagement scenario of

disposal in a municipal solid waste landfill, yet EPA provided

[[Page 6637]]

inadequate evidence that such wastes were ever placed in municipal

landfills or similar units. Accordingly, if EPA were to find that the

mismanagement scenarios of concern for a particular waste were

implausible, the Agency may find that it is not necessary to subject

that waste to Subtitle C regulation.

EPA recognizes that in the early 1980's its interpretation of

RCRA's definition of hazardous waste focused on the inherent chemical

composition of the waste, and assumed that mismanagement of such waste

would occur and would result in threats to human health or the

environment (see 45 FR 33113, May 19, 1980). However, after more than

15 years of experience with the management of hazardous wastes, EPA

believes that it is no longer required--nor is it accurate and fair--to

assume that all inherently hazardous wastes will be mismanaged, thus

creating the necessity to regulate them under subtitle C.

Indeed, in several recent hazardous waste listing decisions, EPA

identified potential ``mismanagement'' scenarios for both wastewater

and non-wastewater sources, and then looked at available data to

determine if these mismanagement scenarios were plausible given

available information about current waste management practices.

In deciding to finalize the conditional exemption from RCRA

regulation for the storage of waste military munitions, EPA considered

several factors. First, and primarily, EPA relies on the fact that the

storage of all military munitions (including waste munitions) by the

military services is subject to the specific requirements of existing

DDESB standards for the management of military munitions. While these

standards have safety as the primary concern, EPA and one interested

party, representing certain members of the waste treatment industry,

have reviewed the DDESB standards in detail. Both concluded that the

technical design and operating standards of the DDESB meet or exceed

RCRA standards in virtually all respects, though there were gaps in

certain procedural requirements and in areas unrelated to risks from

explosive materials (e.g., in requirements to coordinate with local

authorities or in unit closure requirements). Based on its review

(which has been placed in the docket), EPA does not believe these gaps

undermine protection of human health and the environment in any

significant way, or that the superimposition of RCRA specific standards

would significantly increase protection. The DDESB standards (``DOD

Ammunition and Explosives Safety Standards,'' DOD 6055.9-STD) are in

the docket for today's rulemaking, and may also be obtained by

contacting the DOD Explosives Safety Board, 2461 Eisenhower Ave, Room

856-C, Alexandria, VA 22331-0600. These DDESB standards provide design

and operating standards that, in part, minimize the potential for

explosions and minimize the impact should an explosion occur, based on

four factors that relate to the physical and chemical characteristics

of these materials: (1) compatibility groupings, (2) hazardous class,

(3) net explosive weight (NEW), and (4) quantity distance formulae. The

EPA analysis ``A Comparison of RCRA Storage Requirements with DOD

Requirements for Storage of Military Munitions,'' EPA, October 31,

1995, is in the docket for this rulemaking (and was available for

public comment during the comment period for this rule).

The applicability of these standards to waste military munitions in

storage is the major reason for EPA's belief that--in specified

circumstances--it is not necessary to subject these wastes to RCRA

storage regulation.

Second, EPA believes that specifically identifying the conditions

under which waste military munitions become subject to RCRA Subtitle C,

and providing for independent regulatory oversight of those conditions,

adds significantly to the reliability and protectiveness of the system

of DDESB standards.

Third, EPA believes that the fact that the DDESB standards

generally apply to military munitions and, if violated, can have

significant consequences, provides further assurance that the

conditions for exemption will be met. For instance, if a member of the

military is found to have violated the DDESB standards, that person is

subject to military disciplinary actions. Safety Standards for Storage

of Explosives and Ammunition, 41 Op. Att'y Gen. 38 (1949).

Finally, EPA has reviewed documentation concerning incidents

involving the handling of DOD munitions, and continues to believe that

DOD has a good safety record in storing all military munitions

(including ``waste'' munitions, which constitute a tiny fraction of the

overall quantity of munitions managed by DOD). Certainly, there have

been incidents over the years that involved munitions detonation, in

some cases leading to injury or property damage. However, few if any of

these incidents involved waste munitions. Moreover, given the vast

quantity of munitions managed by DOD and the dangerous nature of the

material, EPA concludes that the safety record has been good, and

furthermore, that regulation under RCRA subtitle C is unlikely to

significantly improve that record.

In summary, given the protective nature of the DDESB standards, and

the Services' record in providing for the safe storage of military

munitions, the Agency believes that RCRA subtitle C regulation is not

necessary for waste military munitions managed in compliance with these

standards. The regulatory oversight created by today's rule provides

further assurance that the standards are followed and protectiveness is

maintained.

2. Implementation and Enforcement Issues. It is important to

emphasize that if a military facility claims the conditional exemption

in Sec. 266.205(a)(1), but fails to store waste military munitions in

compliance with the provisions of that exemption, that facility's

mismanaged waste, and any unit in which that waste was mismanaged,

would no longer be exempt. Accordingly, the facility would be subject

to additional regulatory requirements (e.g., a RCRA storage permit) and

could be subject to enforcement action (or citizen suit) for violations

of hazardous waste requirements.

As a mechanism to determine if the units used to store waste

munitions are in compliance with the terms of the exemption, the Agency

is imposing (in Sec. 266.205(c)) as a condition for the exemption a

self-reporting requirement. Under this self-reporting requirement, the

owner or operator must provide oral notice to EPA within 24 hours, when

the owner or operator becomes aware of: (a) any loss or theft of the

waste military munitions, or (b) any failure to meet a condition of

Sec. 266.205(a)(1) that may endanger human health or the environment.

The owner/operator must also provide a written report describing any

failure to comply with any condition for the exemption, or a loss or

theft, within 5 days of learning of it.

When a violation of 266.205(a) occurs, the waste in question

automatically loses its exemption. Under 266.205(c), the owner or

operator may apply to EPA to reestablish the conditional exemption once

the waste returns to compliance with all conditions of the exemption.

Depending on the circumstances, EPA may, in its discretion and

considering factors such as those described in Sec. 266.205(c),

reinstate the exemption. Reinstatement is not automatic, but if EPA

does not act on an application within 60 days, the conditional

exemption would be deemed to be granted. However, EPA may, after

[[Page 6638]]

considering appropriate factors such as those provided in

Sec. 266.205(c), revoke an exemption reinstated by default at any time,

even after the 60 period. Reinstatement decisions will be made by the

Director (as defined in 40 CFR 270.2). Any owner or operator who claims

that EPA reinstated the owner/operator's conditional exemption must be

able to demonstrate that the reinstatement has been approved by the

Director.

Further, as a mechanism to enable the regulatory agency to know

which wastes and which storage units are subject to oversight under

this approach, EPA has established a requirement for a notification

within 90 days of when a storage unit is first used to store waste

military munitions for which the conditional exemption is claimed.

In order for the regulatory agency to know when a storage unit will

no longer be used to store waste military munitions subject to

Sec. 266.205(a), Sec. 266.205(b) requires DoD to notify the appropriate

regulatory authority of that fact.

3. Amendments to DDESB Standards. The DDESB storage standards that

make up the Sec. 266.205(a)(1) conditions are those adopted by the

DDESB as of November 8, 1995. EPA understands that the DDESB may change

its storage standards from time to time. However, in light of the fact

that DDESB has a statutory obligation to ensure proper storage of

munitions, and to prevent hazardous conditions arising from storage of

munitions that would endanger life and property (see 10 U.S.C.

Sec. 172), EPA does not consider it likely that DDESB would pursue any

amendments that would lessen protection of human health and the

environment. DDESB also has a long experience regulating explosive

safety hazards, which directly affect DOD's own personnel. Further,

today's rule provides that DOD will publish notice of any amendments to

the DDESB storage standards in the Federal Register. DOD will also

provide EPA a preliminary determination of whether the amended

standards are less protective than the current standards. If EPA in its

discretion determines that revisions to the conditional exemption in

today's rule are necessary to protect human health and the environment,

the Agency will propose such revisions. Citizens may also petition for

rulemaking to request EPA to revise the RCRA conditional exemption in

light of any amendments to the DDESB standards (see RCRA section

7004(a), and 40 CFR 260.20).

EPA understands that DOD officials have authority, in some

circumstances, to grant waivers or exemptions from DDESB standards for

military munitions, where necessitated by strategic or other compelling

reasons. However, EPA believes that a waiver for waste military

munitions could be inconsistent with the basis for the conditional

exemption established by today's rule. Therefore, a waiver from

otherwise applicable DDESB storage standards will terminate the

eligibility of affected waste munitions for the conditional exemption,

subject to reinstatement by EPA pursuant to Sec. 266.205(c). The

existence of a waiver will not preclude the owner or operator from

storing waste military munitions in compliance with the requirements of

40 CFR Parts 264 or 265, subpart EE.

b. Waste Chemical Munitions 1. Applicability of RCRA Requirements

to Waste Chemical Munitions. ``Chemical agents and munitions'' are

defined as in the Department of Defense Authorization Act of 1986, 50

U.S.C. 1521(j)(1); this statute is the comprehensive congressional

scheme for the management and ultimate destruction of chemical agents

and munitions.

Under the original 1980 RCRA regulations, and under today's federal

RCRA regulations, a waste is hazardous if it is specifically listed as

a hazardous waste, or if it exhibits a hazardous characteristic such as

reactivity. See 40 CFR Part 261, subparts B and C. Chemical agents and

munitions become hazardous wastes if (a) they become a solid waste

under 40 CFR 266.202, and (b) they are listed as a hazardous waste or

exhibit a hazardous waste characteristic; chemical agents and munitions

that are hazardous wastes must be managed in accordance with all

applicable requirements of RCRA.

Based on EPA's technical review associated with this rule, the

Agency believes that the waste chemical agents and munitions in the

military stockpile exhibit at least one of the characteristics

identified in 40 CFR 261 subpart C. These chemical waste agents and

munitions would be hazardous wastes, required to comply with RCRA

requirements. (Note that even though the characteristic nature of waste

chemical agents and munitions may not have been well understood in the

past, the Department of Defense has, as a matter of policy and/or State

law, been managing these waste chemical agents and munitions in

compliance with RCRA requirements, and subject to RCRA permits.)

2. Inapplicability of Conditional Exemption. EPA is not extending

the conditional exemption in Sec. 266.205(a)(1) to waste chemical

agents and munitions. This decision should not be construed as a

negative assessment of DOD's standards or management of chemical agents

and munitions. Indeed, DOD has a sound record for the safe storage of

chemical munitions and agents. This decision is based on the Agency's

belief that chemical agents and munitions are more akin to other types

of chemical waste that RCRA typically regulates than are waste

conventional weapons. In addition, as noted above, waste chemical

agents and munitions are, either because of State law or DOD policy,

already stored in RCRA regulated units and the public has come to

expect that. EPA sees no reason to disrupt the current situation.

3. Inapplicability of RCRA Storage Prohibition. EPA is today

codifying its interpretation that RCRA section 3004(j) does not apply

to waste chemical agents and munitions. (See Sec. 266.205(d)(2) of

today's rule.)

By way of background, RCRA section 3004(j) prohibits the storage of

hazardous waste for which one or more methods of land disposal are

prohibited, unless such storage is for the sole purpose of accumulating

quantities needed for proper recovery, treatment, or disposal. Edison

Electric Institute v. EPA, 996 F.2d 326 (D.C. Cir. 1993). Land disposal

restrictions have been set for waste exhibiting any of the hazardous

waste characteristics, and thus the storage prohibition would, on its

face, appear to apply to waste chemical agents and munitions that

exhibit a characteristic. Congress enacted section 3004(j) in 1984

because it ``believed that permitting storage of large quantities of

waste as a means of forestalling required treatment would involve

health threats equally serious to those posed by land disposal, and

therefore, opted in large part for a `treat as you go' regulatory

regime.'' Id. at 329 (quoting Hazardous Waste Treatment Council v. EPA,

886 F.2d. 355, 357 (D.C. Cir. 1989). The fact that treatment or

disposal capacity for a waste does not exist or is inadequate is not

enough, by itself, to overcome the storage prohibition. Id. at 336.

However, in the case of chemical agents and munitions, Congress

has--subsequent to enactment of section 3004(j)--statutorily limited

DOD's ability to move waste chemical agents and munitions from storage

to treatment and disposal; EPA believes that this demonstrates

Congress' intention that the storage prohibition should not apply to

waste chemical agents and munitions.

Specifically, in 1985, one year after enacting RCRA section

3004(j), Congress established a comprehensive scheme for the management

and ultimate

[[Page 6639]]

destruction of waste chemical agents and munitions. See 50 U.S.C.

section 1521. That scheme, which Congress has updated and amended

repeatedly in intervening years, requires detailed study of destruction

options for the chemical agents and munitions, and provides for

destruction of the chemical agents and munitions to be completed by a

set date. See, e.g., 50 U.S.C. section 1521 (a), (b), and (d). As

originally enacted, Congress required destruction of the chemical

agents and munitions by September 30, 1994, but Congress has extended

that deadline recently to December 31, 2004. 50 U.S.C. section

1521(b)(5). Congress has further required that certain studies be

completed prior to destruction (see, e.g., 50 U.S.C. section 1521(d));

Pub. L. No. 180, 100th Cong., 1st Sess., section 125(b), (c), (d) (Dec.

4, 1987), 101 Stat. 1019, 1043, 1044). During this mandated study

phase, during construction of the destruction facilities (see 50 U.S.C.

section 1521(c)(1)(B),(2)), and while destruction is ongoing, Congress

necessarily envisioned that these waste chemical agents and munitions

would be stored. Indeed, Congress specifically required DOD annually to

assess and report ``how much longer the stockpile can continue to be

stored safely.'' 50 U.S.C. section 1521(g)(3)(C)(1).

Highlighting that Congress did not intend these agents and

munitions to be destroyed until completion of a process to ensure

environmentally safe destruction, Congress last year specifically

prohibited construction of chemical weapons incinerators at two of

eight storage sites, pending study of other destruction alternatives.

See Omnibus Consolidated Appropriations for 1997, Pub. L. 208, 104th

Cong., 2d Sess., section 8065, reprinted in 9A U.S.C.C.A.N. 396, 397

(Nov. 1996). Congress also has restricted transportation of chemical

agents and munitions, so that chemical agents and munitions cannot be

transported from a storage facility that lacks disposal capacity to a

storage facility that might have such capacity. See id. at 397-98; see

also 50 U.S.C. section 1512, 1521a.

In light of the detailed Congressional plan for destruction of the

chemical agents and munitions, and their necessary storage pending

destruction, EPA believes that Congress could not intend the

prohibition on storage in RCRA section 3004(j) to apply to chemical

agents and munitions. EPA believes that the issuance of this

interpretation is necessary to reconcile the otherwise conflicting

provisions of two federal statutes, and is within EPA's mandate under

RCRA section 3004(y) to issue regulations that provide for safe storage

of waste chemical agents and munitions.

This interpretation is an interpretative rule that reconciles

specific, existing statutory provisions; under 5 U.S.C. section

553(b)(3)(A), it is not subject to formal public notice and comment

rulemaking procedures.

2. Subpart EE. As noted above, EPA believes that RCRA regulatory

controls are necessary for waste munitions not already regulated, and

for waste military munitions that are not being managed in compliance

with the comprehensive DDESB standards. At the same time, however (and

as discussed in the proposed rule on waste munitions), EPA's view is

that the specific RCRA regulations currently applicable to hazardous

waste storage units (e.g., the container and tank standards) are not

the best fit for waste munitions and explosives. Rather, the Agency has

developed a tailored version of the RCRA storage standards to better

reflect the nature of waste munitions and explosives, and to ensure

that the regulatory requirements do not interfere with the safe

handling of these materials. See 60 FR 56479 (November 8, 1995).

The Agency has clear authority under section 3004(a) to establish

storage standards ``as necessary to protect human health and the

environment''; the storage standards presently in 40 CFR Part 264 were

designed to cover conventional waste management units such as tanks and

containers; today's subpart EE standards are focused on the storage of

hazardous waste munitions and explosives in magazines designed for

explosive materials. Accordingly, EPA is finalizing proposed subpart EE

in 40 CFR Parts 264 and 265 for waste military munitions and commercial

munitions and explosives that have become hazardous waste subject to

subtitle C.

EPA has modified proposed subpart EE in one substantive respect. In

response to suggestions by some commenters, the Agency is extending

subpart EE applicability to hazardous waste non-military munitions and

explosives, as well as to hazardous waste military munitions and

explosives. EPA believes this change is reasonable because the subpart

EE performance standards are equally appropriate for non-military

munitions and explosives, which closely resemble certain military

munitions (e.g., small arms ammunition). As noted in the proposed rule,

this subpart combines the environmental features of the existing RCRA

storage unit standards with performance standards based on the DOD

Explosives Safety Board (DDESB) munitions storage standards (which are

contained in DOD 6055.9-STD--DOD Ammunition and Explosives Safety

Standards) to minimize potential inconsistencies or conflicts between

RCRA regulatory requirements and DOD's explosives safety standards.

(This is consistent with the mandate in RCRA section 3004(y) to address

both protectiveness and safety.) It is equally important to ensure that

owners and operators of storage facilities for non-military waste

munitions and explosives have a unit standard that considers both the

traditional RCRA concerns and the need to assure explosives safety.

Subpart EE is not the exclusive manner for storing hazardous waste

munitions or explosives, but rather, provides an alternative for the

storage of hazardous waste munitions and explosives under RCRA.

Depending on the explosive hazards, a facility owner or operator may

still seek a storage permit for waste munitions and explosives under

the already existing 40 CFR parts 264 and 265 standards for other types

of storage units, including containers (subpart I), tanks (subpart J),

and containment buildings (subpart DD). An owner or operator would

apply for a permit under the most appropriate of these standards.

In developing the subpart EE standards, the Agency carefully

examined the DDESB standards, which have been developed to protect

against explosions and to minimize the impact if one should occur, and

in doing so EPA concluded that the DDESB standards are generally

protective of human health and the environment. The subpart EE

standards include the three basic designs of magazines that are found

in the DDESB storage standards: (1) earth-covered magazines (ECMs)

(which are frequently used for shock sensitive and other munitions),

(2) above ground magazines (AGMs) (which might be used for munitions

that do not pose a mass detonation or fragment producing hazards), and

(3) outdoor or open storage areas (typically for munitions that do not

pose a significant potential for explosion).

Today's rule also establishes design, operation, monitoring,

inspection, closure, and post-closure care standards consistent with

the standards for other RCRA storage units. These standards set

containment and control performance standards to prevent contamination

of soil, ground-water, surface waters, and the air. The standards

require a primary barrier or containment system, which may be a bomb

shell, a protective casing, a storage container, or a tank. For non-

liquid wastes stored outdoors or in open storage areas, the unit design

[[Page 6640]]

and operation must provide that the waste will not be in standing

precipitation. This may be accomplished by a number of design and

operating features, including a sloped impervious base, a pervious

base, and/or waste elevation.

For those few waste munitions that are liquids, in addition to the

primary barrier or container, the subpart EE rules require units to be

equipped with a secondary containment or vapor detection system. The

secondary containment or vapor detection system design, operation,

controls, and monitoring features may include a combination of sumps,

pumps, drains, slope, double-walled containers or tanks, overpacks,

and/or elevated waste or other features that provide that any released

liquids are contained or promptly detected so that an appropriate

response may be taken (e.g., additional containment, such as a

container overpack, or removal from the waste area). For liquid and

liquid-filled waste munitions (e.g., the stored waste chemical

munitions), the Agency considers the storage of the munition inside a

sealed storage casing as a means of achieving secondary containment.

Monitoring and inspections are required to assure that the

containment systems and controls are working as designed, that the

wastes are stable, and that no contaminants that might adversely affect

human health or the environment are being released from the magazine.

In addition, all hazardous waste munitions under subpart EE would have

to be inventoried at least annually, which is consistent with current

DOD requirements.

The closure standards mirror the other RCRA storage unit closure

standards, requiring waste and contaminant removal and containment

system decontamination (where practicable). When ``clean closure''

cannot be accomplished, the landfill closure and post-closure standards

apply.

Response to Comments

EPA received numerous comments on proposed subpart EE and the three

alternatives that EPA proposed in the preamble to the proposed rule.

Regarding subpart EE, some commenters said it is too general to be

effective, whereas others supported it, some saying it should be

expanded to be available for all munitions and explosives storage, not

just military and not just munitions since the other existing storage

standards under RCRA are not as tailored or specific to explosives.

Regarding the former comments, EPA believes the advantage of general

performance standards is that they allow flexibility in establishing

site specific design and operating standards. 40 CFR part 264, subpart

X, is an example of a RCRA Subtitle C performance standard. The

disadvantage of performance standards as pointed out by the commenters

is the lack of specificity. In the case of subpart EE, however, EPA has

included some specificity (e.g., secondary containment). Also, the

DDESB standards or other applicable standards (e.g., DOE, Coast Guard,

NASA, BATF) and Standard Operating Procedures (SOPs) may be

incorporated as appropriate to add specificity in the development of

permit standards. Since there are so many standards and SOPs for

munitions and explosives, both in the private and public sectors, this

approach provides the flexibility to incorporate these without having

restrictive or conflicting RCRA standards. Commenters asked if military

or other SOPs would be subject to regulator review. To the extent that

they are used in the subpart EE permit, they would be subject to

regulator and public review during the permitting process, and when

incorporated into a RCRA permit, they become regulatory requirements.

Regarding the comments supporting expanding the coverage of the

proposed subpart EE, EPA concurs and has expanded the applicability of

subpart EE in the final rule to make it an available option for the

storage of all waste munitions and explosives. For this reason, subpart

EE has been retained in parts 264 and 265 rather than in the new part

266, subpart M.

Several commenters felt that EPA should require storage permits for

all chemical munitions, not only because they felt these should be

classified as wastes (this comment was discussed in section K of this

preamble), but because extra precautions are needed for these

particularly hazardous chemicals. In response, EPA has decided not to

allow the storage of waste chemical agents and munitions to be eligible

for the conditional exemption from storage permits under today's rule.

Instead, a subpart EE or other waste management permit is required for

these wastes. EPA notes, however, that DOD has in place strict

procedures for the storage of all chemical munitions, including waste

chemical munitions. For example, all chemical munitions and bulk agent

storage is currently maintained within a special high security area at

each installation. Extensive precautions are used to control entry to

these storage areas. Munitions containing explosives are stored in

earth-covered magazines (ECMs) designed to protect their contents from

blast and shrapnel effects of the potential detonation of a neighboring

magazine. Most munitions without explosive components, and bulk

containers containing isopropyl methylphosphonoflouridate (referred to

as GB) and phosphonothioic acid, methyl-S-(2-(bis(1-methylethyl))-

amino)ethyl-O-ethyl ester (referred to as VX), are also stored in ECMs.

The exceptions include VX ton containers and spray tanks, both of which

are stored in above ground magazines (AGMs). One ton containers of

mustard agent are stored in either ECMs, AGMs, or outdoor storage

areas. Chemical munitions other than 1-ton containers are stored in

configurations generally suitable for transport during wartime. These

configurations include boxes, protective tubes, or metal overpacks, and

all are on pallets. The stacking arrangements and aisles inside the

storage facilities are generally designed and maintained so that units

in each stack can be inspected, inventoried, and removed for shipment

or maintenance, as necessary. Periodic surveillance monitoring, safety

inspections, indoor air monitoring, maintenance of munitions for

safety-in-storage, and inventory activities are routinely carried out

on these stored munitions.

Also, there have been no catastrophic accidents associated with the

storage of chemical munitions, and the risk of release to the public

has been reduced due to the 1969 cessation of live firing and the

implementation of close restrictions on the disposal and movement of

chemical munitions. There are, however, cases where deterioration of

the containers has resulted in leaking of agent from a munition. When

this occurs, the munitions are over packed in hermetically sealed

containers and placed in specially designated and monitored magazines.

Even with such incidents, in the past 40 years there have been no known

cases of exposure to personnel not directly engaged in agent

operations.

Some commenters suggested that subpart EE be expanded for waste

gaseous chemical warfare agents to require secondary containment and to

prohibit outdoor storage. EPA notes that chemical warfare agents are

stored as liquids, not gases, and therefore the secondary containment

or vapor detection system requirements in today's rule apply.

EPA does not see the need to prohibit outdoor storage of any waste

munitions in subpart EE so long as those waste munitions will not be

left in standing precipitation, and, if liquid, have secondary

containment or vapor

[[Page 6641]]

detection system, as is required by subpart EE.

DOD commented that EPA should allow a vapor detection and response

system as an alternative to secondary containment for liquid waste

chemical munitions and agents since these materials leak as vapors

before they leak as liquids and such early detection and response

provides for protection that is comparable to secondary containment.

EPA agrees, and as discussed in the section on subpart EE above, EPA

has provided for the use of a vapor detection and response system in

finalizing subpart EE. In addition to the subpart EE standards,

chemical waste military munitions are also subject to additional

procedures and requirements regarding monitoring or secondary

containment. At facilities that manage chemical weapons, DOD has both a

monitoring and a visual inspection protocol that is designed to allow

early detection of any leakage from a chemical munition. The monitoring

includes both regularly scheduled sampling of the air in all units

storing chemical munitions, as well as monitoring of the air within the

storage unit whenever personnel are to enter the unit. Should there be

a release of agent, these monitoring protocols will detect minute

amounts of vapor release (which typically occurs before any liquids are

released). Should a release be detected, the munitions within the

storage units are inspected to locate the leak and the release is

contained. If the source cannot be located immediately, the ammunition

storage unit is sealed and the air filtered and monitored until the

source is located. Once a leaking chemical munition is isolated, it is

overpacked in a specially designed container that re-establishes an

intact barrier between the agent and the environment. If a container

with liquids (e.g., an M55 rocket) leaks inside its sealed shipping

tube, and if the primary barrier (e.g., the rocket casing) has been

permanently compromised, but the shipping tube is intact, DOD typically

overpacks the rocket in order to place two intact barriers between the

liquid and the environment, an action consistent with the secondary

containment requirements found in other unit standards under RCRA. Upon

completion of the overpacking activities and associated decontamination

procedures, the storage area is monitored to assure complete

decontamination.

Commenters sought further clarification of the status of shipping

containers and overpacks as secondary containment for liquid-filled

waste munitions. It is EPA's view that the secondary containment

requirement for waste munitions may be met by a shipping or storage

container or overpack around a non-leaking munition or container since

it places a second barrier between the liquid and the environment.

Multiple overpacks (a current DOD practice) are permissible to meet

this requirement.

Some commenters (mostly the regulated community) favored the first

proposed alternative or the ``deferral'' option under which munitions

would not under any circumstances be considered a RCRA hazardous waste

based on the current storage practices of DOD, which are protective of

human health and the environment. Other commenters questioned this

alternative's legal basis and opposed this approach because it would

remove all non-DOD oversight. EPA agrees with the latter commenters on

both counts and has not adopted this approach.

The Agency received comments raising concerns about a contingent

management approach. The Agency's thinking on this issue is set out in

today's preamble and a detailed response can be found in the docket.

N. Permit Modifications to Receive Off-Site Waste Munitions

Some RCRA permits at military installations have conditions

prohibiting the receipt of ``off-site'' waste. Under these permit

restrictions, if the point of generation of a waste munition is any

place other than the permitted installation, then the waste munition

could not be accepted at the facility for treatment, storage, or

disposal without the installation first having received a RCRA permit

modification.

Under today's rule, a number of formerly unregulated munitions

might now be deemed to be wastes, and thus potentially subject to these

off-site permit restrictions (see discussion in the preamble to

proposed rule). Under the existing regulations (40 CFR 270.42(d)(1)),

this modification would arguably have to follow the procedures for a

Class 3 modification, requiring approval before implementation.

Alternatively, the permittee might request that the modification be

reviewed by the regulatory agency as a Class 1 or Class 2 modification.

DOD maintains that this situation would cause a serious disruption of

its munitions management program.

To address this concern, this final rule allows permitted

facilities with off-site prohibitions to continue to receive from off-

site sources munitions that have been newly defined as solid waste,

provided there is timely notification to the permitting authority (in

the form of a Class 1 permit modification request), followed by a Class

2 permit modification request. Under this procedure, the facility may

continue to accept waste munitions from off-site sources until the

permitting authority makes a final decision on the Class 2 permit

modification request. This approach is consistent with the permit

modification rules for newly regulated wastes(40 CFR 270.42(g)).

There are three specific requirements that are attached to this

provision and are codified today at 40 CFR 270.42(h). First, to be

covered under this provision, the facility must be in existence on the

date today's rule goes into effect and must already have a permit to

handle the waste munitions. Second, the facility must submit a request

for a Class 1 permit modification that seeks an amendment or removal of

the permit restriction on off-site waste. The Class 1 permit

modification request must be submitted on or before the date when the

waste munitions become subject to hazardous waste regulatory

requirements. (Today's rule becomes effective in unauthorized States

six months from the date of publication; in authorized States, State

law would determine the effective date.) This timely Class 1 submittal

would allow the facility to continue to receive off-site waste

munitions after the effective date without the need for prior approval

by the permitting authority. Third, following submission of a Class 1

permit modification request, the facility would have an additional six

months following the effective date of this rule to submit a Class 2

permit modification request for the removal of the off-site waste

prohibition. Following submission of the Class 2 modification, the

facility would be allowed to continue to accept waste munitions from

off-site sources until such time as a final decision to grant or deny

the modification is made.

EPA's two-step approach recognizes that military munitions that

were previously handled at certain stages as non-waste might, under

today's rule, be considered waste. This two-step process allows DOD to

continue managing its munitions with a minimum of disruption, while

recognizing the need for the modification of those permits that

restrict the acceptance of waste munitions from off-site sources.

The proposed rule provided an opportunity for DOD, before the 180-

day deadline to submit a Class 2 permit modification application, to

request the permitting agency to allow an extension for a specified

period. In today's final rule, EPA has decided not to provide for such

an opportunity for two reasons. First, this is inconsistent with

[[Page 6642]]

Sec. 270.42(g) which addresses permit modifications for all newly

regulated wastes and units to which this situation is analogous.

Second, this Class 2 permit modification request is, perhaps, the

simplest and most straightforward of all types of requests likely to be

submitted under this section, so to provide an opportunity for

extension is unnecessary.

Today's final action does not affect activities at interim status

facilities. In some cases, however, the facility's part B permit

application might include an off-site waste prohibition. In this case,

the facility owner should amend the permit application.

Response To Comments

A number of commenters said it would be inappropriate for EPA to

adopt DOD's alternative approach as described in the proposed notice

(whereby a material is not deemed to be a waste until received at the

treatment/destruction unit) because this approach would undo by

national rule provisions that currently exist in a number of permits

that prohibit the receipt of off-site waste, and because this would

ignore or circumvent the right and duty of State regulatory agencies to

issue site-specific permits based on public participation. Furthermore,

a number of commenters maintained that the modification of a permit

restriction regarding off-site wastes should be processed as a Class 3

modification requiring full public participation rather than as a Class

1 or 2 permit modification. These commenters argued that permit

modifications to remove off-site waste restrictions could create the

need for additional modifications regarding changes in waste streams or

quantity limitations. Commenters specifically expressed concern that no

waste should be allowed to be received from off-site unless the

receiving facility is ``prepared and equipped'' to comply with the

standards for off-site facilities.

In adopting the approach in today's rule, the Agency's main concern

is that any modification of existing permit conditions restricting off-

site waste be done in a way that provides for public participation.

Thus, the Agency concurs with the comments opposing the ``alternative

proposal'' of declaring the transported material as a waste when it

reaches the ``front door'' of the treatment or disposal unit.

In response to commenters recommending the Class 3 permit

modification procedures, expressing concern that other permit

conditions might change, or that facilities might not be prepared to

receive the ``new'' waste munitions, EPA is clarifying the

applicability of the off-site permit modification provisions in today's

rule. The procedures of new Sec. 270.42(h), allowing a Class 1

modification submittal followed by a Class 2 modification request,

apply only to changing a permit condition that prohibits receipt of

off-site wastes. Section 270.42(h) of today's rule does not allow

facilities to receive munitions that they were not already receiving at

the time of the rule's effective date. It only allows facilities to

continue to receive munitions newly classified as hazardous waste.

Today's rule also does not affect the classification of, or process

for, other types of permit modifications (such as acceptance of

different wastes or changes in permitted quantity limits) that might

occur at a facility. Those other types of modifications will continue

to be evaluated in accordance with 40 CFR Sec. 270.42 and Appendix I to

40 CFR Sec. 270.42.--i.e., the facility must follow the appropriate

procedures for whichever class of modification--Class 1, 2, or 3--

applies.

In conclusion, given the very narrow scope of the changes allowed

under Sec. 270.42(h), EPA believes that it is not necessary to require

Class 3 permit modifications in this rule. In situations of high public

concern, Class 2 procedures already allow the regulating agency to

elevate the process to a Class 3.

O. Environmental Justice

Today's rule addresses environmental justice concerns by providing

standards, while not specific to environmental justice, that are

protective of human health and the environment regardless of the

population potentially impacted. In addition, DOD as well as all

Federal agencies, is subject to the President's Executive Order No.

12898 on Environmental Justice.

Response To Comments

Several commenters raised environmental justice concerns. The

comments focused primarily on military contamination caused by ordnance

landing on ranges formerly owned by Native Americans or Hawaiians, or

landing off-range on Native American or Hawaiian lands. The commenters

stated that these lands should be cleaned up and, as appropriate,

returned, citing cultural, economic, safety, justice, and social

reasons, observing that indigenous peoples have a special relationship

to their land and that relocation is not an option. Seven environmental

justice examples were mentioned in the public comments. These examples

are located in Alaska, California (2), Hawaii, Nevada, Oregon, and

South Dakota. A brief description of each of these was provided in the

comments.

In response, EPA has prepared a report summarizing these comments

and cases, and referred it to DOD. A copy of this report is available

in the Docket for this rule-making. DOD has created an environmental

justice program to evaluate and respond to these concerns and has

appropriated $8 million in each of the past three fiscal years to

support this effort.

In addition, in developing this final rule and in helping DOD

develop its range cleanup rule, EPA feels the environmental justice

concerns raised by the commenters for munitions and contaminants

landing or migrating off-range, and on closed and transferred ranges,

will now be addressed, resulting in an increased protection of human

health and the environment. For example, some commenters referred

specifically to munitions that land off range. Today's rule retains, in

Sec. 266.202(c)(3), the ``off-range'' response provision of the

proposed rule. This is expected to help communities, including Native

American communities, which are located adjacent to ranges. In

addition, EPA is working with DOD in the development of DOD's Range

Rule, which will establish a process for taking inventory, accessing,

and cleaning up closed, transferring, and transferred ranges.

P. Emergency Responses

Today's final rule also clarifies that RCRA generator, transporter,

and permit requirements do not apply to immediate responses to threats

involving munitions or other explosives. EPA is now codifying a long

standing Agency policy to address concerns of DOD and other emergency

response officials that RCRA requirements may impede emergency

responses, especially by causing delays or confusion. As stated in the

preamble to the proposed rule, the current RCRA rules exempt emergency

responses from full permit requirements in two ways. First, permits

(including emergency permits) are not required for immediate responses

to a discharge of hazardous waste or to an imminent and substantial

threat of a discharge (Secs. 264.1(g)(8), 265.1(c)(11), and

270.1(c)(3)). After the emergency is determined to be over, however,

any additional waste management may be subject to RCRA regulation.

Second, in cases of imminent and substantial endangerment to human

health or the environment, a temporary emergency permit may be issued

to a facility to treat, store, or dispose of hazardous

[[Page 6643]]

waste. This permit may be issued orally, if followed by a written

emergency permit within five days, and may not exceed 90 days in

duration. See 40 CFR 270.61.

Today's rule clarifies that EPA considers immediate or time-

critical responses to explosives or munitions emergency responses to be

an immediate response to a discharge or imminent and substantial threat

of a discharge of a hazardous waste under 40 CFR 264.1(g)(8),

265.1(c)(11), and 270.1(c)(3). Such responses are, therefore, exempt

from RCRA permitting, and other substantive requirements, including

emergency permits, conducting risk assessments for OB/OD permits under

40 CFR part 264, subpart X, and interim status requirements under 40

CFR part 265, subpart P. If an immediate response, however, is clearly

not necessary to address the situation, and a response can be delayed

without compromising safety or increasing the risks posed to life,

property, health, or the environment, the responding personnel, if time

permits, should consult with the regulatory agency regarding the

appropriate course of action (e.g., whether or not to seek a RCRA

emergency permit under Sec. 270.6l, or regular facility permit under 40

CFR Part 270). Situations where an immediate response is needed would

include instances where the public or property is potentially

threatened by an explosion. Situations where an immediate response is

clearly not necessary would include instances where the public or

property are not threatened by a potential explosion (e.g., in remote

areas such as some former ranges or where immediate action is not

necessary to prevent explosion or exposure). In these cases, there is

time to consult with the EPA or State regulatory agency on how to

proceed.

Sections 264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D), 266.204, and

270.1(c)(3)(i)(D) make it clear that explosives or munitions

emergencies, including those involving military munitions, are exempt

from RCRA permitting (including emergency permitting). This final

action also clarifies, in Secs. 262.10(i) and 263.l0(e), that, if an

emergency response specialist at the site determines it to be

appropriate, the explosive material may be removed and transported to a

safer location to be defused, detonated, or otherwise rendered safe

without a RCRA manifest, and the transporter is not required to have a

RCRA identification number. Such transport could be to an open space or

an EOD range at a military installation. Transportation onto a military

base is, however, subject to the requirements of 10 USC section 2692.

Transporters shall consult with appropriate military authorities

regarding 10 USC section 2692 requirements. This final action, which

EPA believes is necessary to allow prompt response to explosives

emergencies, is consistent with current EPA policy.5

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\5\ Interpretive letter from EPA (Director, Office of Solid

Waste) to the Bureau of Alcohol, Tobacco, and Firearms, August 11,

1988, p.4.

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Today's rule also finalizes three new definitions in Sec. 260.10 to

help clarify the scope of this exemption. The definition of

``explosives or munitions emergency'' describes in detail what

constitutes an emergency, and clarifies that an emergency situation

includes suspect situations with signi

This text is long and has been trimmed here. Open the source document for the complete record.